I think that federal habeas review of state convictions plays an important and useful role in our system of criminal justice, and that Congress and the Supreme Court have gone too far in erecting procedural barriers to habeas relief. That said, I’ll admit to some discomfort with the picture of a single federal district judge overturning a conviction that has been affirmed by a state supreme court, particularly on the basis of issues that were squarely addressed by the supreme court. (For a recent, local example, see the Fischer case.)
Why the discomfort? There are several reasons. First, there are the legal uncertainties created when a supreme court decision is overturned by a ruling that lacks binding precedential status in any court. State courts will presumably continue to follow supreme court precedent, but under the shadow of uncertain prospects for case-by-case reversal in federal court.
Second, the single-judge reversal flies in the face of the common intuition (often justified, I think) that group decisionmaking, as on a state supreme court, tends to produce more reliable results than individual decisionmaking.
Although habeas grants are commonly appealed, thereby activating multi-judge review in the federal circuit court, the burden is shifted to the state at that point to save the judgment of the state-court system.
Third, in light of the second point, the single-judge reversal seems especially disrespectful of the competence and good faith of state judges. A somewhat different way of expressing the disrespect point is often made by reference to the disparate treatment of state and federal convictions; while state convictions are subject to review both by a state appellate system and the entire multilevel federal system, federal convictions are only subject to federal appellate review.
Finally, in light of the second and third points, I’m concerned that habeas grants in federal district court may serve to galvanize opposition to habeas, fueling the creation and maintenance of arbitrary roadblocks to habeas relief.
So, here’s my modest proposal: require the initial filing and litigation of all habeas petitions in the circuit courts of appeals. If an evidentiary hearing is necessary – which seems not often to be the case – then the matter can be dispatched to a district judge to take testimony and make findings of fact in response to carefully focused questions (sort of the inverse of a lower court certifying a question of law to a higher court). The ultimate questions, including whether to grant habeas relief, would be reserved for the circuit court.
This would actually be only a small step from the way that second or successive petitions are already handled under 28 U.S.C. § 2244(b)(3), which requires approval from a circuit court before a district court can consider a second or successive petition.
The benefits? First, this would diminish the procedural awkwardness of a single judge, perhaps from a single district within a multidistrict state, overturning state supreme court precedent. Again, Fischer nicely illustrates the concern. We would more quickly get definitive rulings to clarify what the law is for all habeas petitions emerging from a given state.
Second, we might soften the affront to state-court justice by restricting habeas grants to multi-judge panels from our relatively prestigious federal courts of appeals. This is not to say that the federal appellate courts are perfectly reliable — see, for instance, this recent slap-down of a pair of Ninth Circuit habeas grants by the U.S. Supreme Court – but it is to say that habeas grants will have a greater air of reliability about them under my proposal than in the current system. And, relatedly, the disparity in the treatment of federal and state convictions will be lessened.
Finally, by eliminating a layer of federal habeas review (i.e., in the district court), habeas litigation might reach closure more quickly and efficiently.
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