Law Commons^™

A Felicitous Meme: The Eleventh Circuit Solves The Preiser Puzzle?, Lisa N. Beckmann, Arthur O. Brown

Mercer Law Review

This Article is about a legal phenomenon known as the Preiser Puzzle. More precisely, the article concerns a possible solution to the Preiser Puzzle articulated by the United States Court of Appeals for the Eleventh Circuit. In part, this Article has a descriptive aim: The Authors will explain the Eleventh Circuit’s solution both in the abstract (this section, below), and by giving issue–specific examples in section three that may prove useful to practitioners. Important issues at present include: (a) challenges to parole procedures, (b) method of execution challenges, and (c) requests for release from administrative segregation. Yet this Article also …

When The Conditions Are The Confinement: Eighth Amendment Habeas Claims During Covid-19, Michael L. Zuckerman

University of Cincinnati Law Review

The COVID-19 pandemic cast into harsher relief much that was already true about mass incarceration in the United States. It also cast into harsher relief much that was already true about the legal barriers confronting people seeking to make its conditions more humane. This Article offers a brief overview of the legal landscape as the COVID-19 crisis arose and then surveys eight prominent federal cases involving Eighth Amendment claims related to COVID-19 outbreaks at carceral facilities, most of which included significant litigation over whether they could secure release through habeas corpus. The Article then distills six key tensions from these …

Ethical And Aggressive Appellate Advocacy: The Decision To Petition For Certiorari In Criminal Cases, J. Thomas Sullivan

St. Mary's Law Journal

Over the past six decades, United States Supreme Court decisions have dramatically reshaped the criminal justice process to provide significant protections for defendants charged in federal and state proceedings reflecting a remarkable expansion of due process and specific constitutional guarantees. For criminal defendants seeking relief based on recognition of new rules of constitutional criminal procedure, application of existing rules or precedent to novel factual scenarios, or in some cases, enforcement of existing precedent, obtaining relief requires further action on the Court’s part. In those situations, the Court’s exercise of its certiorari jurisdiction is the exclusive remedy offering an avenue for …

Collateral Consequences Of Pretrial Diversion Programs Under The Heck Doctrine, Bonnie Gill

Washington and Lee Law Review

Following the Introduction, Part II of this Note gives an overview of federal and state pretrial diversion programs. Part III explores the statutory and doctrinal background of 42 U.S.C. § 1983, including its interaction with another civil rights statute, 28 U.S.C. § 2254, the federal habeas statute. Both statutes are essential to understanding the Heck v. Humphrey doctrine’s purpose and application to pretrial diversion participants. Part III also explores the development and interpretation of the Heck doctrine in four Supreme Court cases. Part IV discusses the circuit split as it currently stands. Part V presents three proposals for resolving the …

Sex Offenders, Custody And Habeas, Wendy R. Calaway

St. John's Law Review

(Excerpt)

This Article focuses on habeas petitioners under a conviction from state court seeking federal habeas review. First, Part I will discuss the historical context of the writ of habeas corpus and the development of its purpose and scope. Part I also examines the current status of habeas corpus law, recent legislative efforts to limit its reach, and, specifically, the idea of custody as a prerequisite to habeas relief. Part II explores the evolution of the custody requirement both at the Supreme Court and in lower federal courts. In particular, this section looks at how the meaning of custody has …

Post-Trial Judicial Review Of Criminal Convictions: A Comparative Study Of The United States And Finland, Christopher M. Johnson

Maine Law Review

In 2011, two murder cases involving defendants who professed their innocence came to dramatic conclusions in appellate courts. In Finland in August 2011, the murder prosecution of Anneli Auer ended with her acquittal by an appellate court. In the United States in September 2011, the murder prosecution of Troy Davis ended in his execution in Georgia’s death chamber, despite exculpatory information developed after his trial about the reliability of some eyewitnesses identification evidence. The Finish case arose out if the December 2006 death if Jukka Lahti in Ulvila. His wife, Auer, called the police and claimed that an intruder entered …

When An Appeal Goes Wrong: A “Criminal Justice Nightmare”, David R. Dow, Jeffrey R. Newberry

The Journal of Appellate Practice and Process

No abstract provided.

When The United States Loses In A Criminal Case: The Government Appeal Process, Margaret D. Mcgaughey

The Journal of Appellate Practice and Process

No abstract provided.

Contingent Compensation Of Post-Conviction Counsel: A Modest Proposal To Identify Meritorious Claims And Reduce Wasteful Government Spending, Christopher T. Robertson

Maine Law Review

It costs about $25,000 a year to pay for the housing, food, medical care, and security for each of the 2.3 million residents of America’s prisons. In a world of limited public budgets, each of these expenditures represents an opportunity cost—a teacher’s aide not hired, a section of road not widened. Local, state, and federal governments pay such incarceration costs, which amount to $75 bullion in the aggregate, while slashing budgets for essential services for the rest of the citizenry including medical care, biomedical research, infrastructure, and educational funding—investments which arguably provide greater returns to taxpayers.

Yikes! Was I Wrong? A Second Look At The Viability Of Monitoring Capital Post-Conviction Counsel, Celestine Richards Mcconville

Maine Law Review

When Albert Holland’s capital post-conviction counsel filed his state post-conviction motion in September 2002, twelve days remained in the one-year statute of limitations for filing a federal habeas petition. While Holland might not have known exactly how much time was left in the federal limitations period, he knew he wanted to preserve his right to federal review, that the limitations period was tolled during non-discretionary state post-conviction review, and that he would be under the gun to get the federal petition filed once the Florida Supreme Court issued its decisions. And he made no ones about his desire to file …

Habeas As Forum Allocation: A New Synthesis, Carlos M. Vázquez

University of Miami Law Review

The scope of habeas relief for state prisoners, especially during the decades before the Supreme Court’s 1953 decision in Brown v. Allen, is a famously disputed question—one of recognized significance for contemporary debates about the proper scope of habeas review. This Article provides a new answer. It argues that, until the enactment of Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), it was broadly accepted that state prisoners were entitled to plenary federal review of the legal and mixed law/fact questions decided against them by state courts. Until 1916, such review was provided by the Supreme Court; after 1953, …

Innocent Suffering: The Unavailability Of Post-Conviction Relief In Virginia Courts, Kaitlyn Potter

University of Richmond Law Review

This comment examines actual innocence in Virginia: the progress it has made, the problems it still faces, and the possibilities for reform. Part I addresses past reform to the system, spurred by the shocking tales of Thomas Haynesworth and others. Part II identifies three of the most prevalent systemic challenges marring Virginia's justice system: (1) flawed scientific evidence; (2) the premature destruction of evidence; and (3) false confessions and guilty pleas. Part III suggests ways in which Virginia can, and should, address these challenges to ensure that the justice system is actually serving justice.

A “Second Magna Carta”: The English Habeas Corpus Act And The Statutory Origins Of The Habeas Privilege, Amanda L. Tyler

Notre Dame Law Review

In my own scholarship, Fallon and Meltzer’s work on habeas models prompted me to dig deeper into the historical backdrop that informed ratification of the Suspension Clause and think harder about the relevance of that history for questions of constitutional interpretation. This, in turn, has spurred work that has occupied me for many years since. In the spirit of engaging with my federal courts professor one more time, this Article tells the story of the statutory origins of the habeas privilege—what Blackstone called a “second magna carta”—and argues that any explication of the constitutional privilege and discussion of how …

Sentence Structure: Prohibiting “Second Or Successive” Habeas Petitions After Patterson V. Secretary, Christina M. Frohock

University of Miami Law Review

The Eleventh Circuit’s recent opinion in Patterson v. Secretary includes a heated dispute over the prohibition against “second or successive” habeas corpus petitions in 28 U.S.C.§ 2244(b). Considering an amended criminal sentence from Florida state court, the majority and dissenting opinions structure that sentence differently and, thus, apply the prohibition differently. This Article argues that both the majority and the dissent conceal policy judgments beneath the surface of legal decision-making. First, the Article analyzes the statutory prohibition against “second or successive” habeas petitions, as applied previously by the U.S. Supreme Court in Magwood v. Patterson and by the Eleventh Circuit …

Pinholster's Hostility To Victims Of Ineffective State Habeas Counsel, Jennifer Utrecht

Michigan Law Review

Cullen v. Pinholster foreclosed federal courts from considering new evidence when reviewing 28 U.S.C. § 2254(d) petitions for claims previously adjudicated on the merits in state court. This decision has a particularly adverse effect on petitioners whose state habeas counsel left an incomplete or undeveloped record. This Note discusses strategies for victims of ineffective state habeas counsel to avoid the hostile mandate of Pinholster. It argues that, in light of Martinez v. Ryan’s recognition of the importance of counsel in initialreview collateral proceedings, courts should be wary of dismissing claims left un- or underdeveloped by ineffective state habeas counsel. It …

Federalism, Federal Courts, And Victims' Rights, Michael E. Solimine, Kathryn Elvey

Catholic University Law Review

One of the most striking developments in American criminal law and procedure in the past four decades has been the widespread establishment of victims’ rights at both the federal and state levels. A conspicuous exception to the success of the victims’ rights movement has been the failure of Congress to pass a proposed amendment to the U.S. Constitution that would uniformly establish such rights in all federal and state courts. Advanced by both private organizations and state officials, and with bipartisan support in Congress, bills establishing a Victims’ Rights Amendment (VRA) have been introduced several times in the past three …

Collateral Damage: A Guide To Criminal Appellate, Postconviction, And Habeas Corpus Litigation In Wisconsin, Matthew M. Fernholz

Marquette Law Review

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Supreme Court, Bronx County, People Ex Rel. Furde V. New York City Dep't Of Correction, Adam D'Antonio

Touro Law Review

No abstract provided.

Rethinking The Timing Of Capital Clemency , Adam M. Gershowitz

Michigan Law Review

This Article reviews every capital clemency over the last four decades. It demonstrates that in the majority of cases, the reason for commutation was known at the conclusion of direct appeals—years or even decades before the habeas process ended. Yet when governors or pardon boards actually commuted the death sentences, they typically waited until the eve of execution, with only days or hours to spare. Leaving clemency until the last minute sometimes leads to many years of unnecessary state and federal habeas corpus litigation, and this Article documents nearly 300 years of wasted habeas corpus review. Additionally, last-minute commutations harm …

Challenging Unjust Convictions Under Section 1983, Leon Friedman

Touro Law Review

No abstract provided.

Harmonizing Equitable Exceptions: Why Courts Should Recognize An “Actual Innocence” Exception To The Aedpa’S Statute Of Limitations, Morgan Suder

San Diego Law Review

This Comment argues that to neutralize this potential inequality, the Supreme Court should affirm the Ninth Circuit’s recent decision in Lee v. Lampert, finding that a credible claim of actual innocence constitutes an equitable exception to the AEDPA’s one-year statute of limitations period. District courts must be able to call on their equitable powers, including both equitable principles already applied to the AEDPA’s statute of limitations as well as the actual innocence exception, in determining whether a district court may consider the merits of a criminal defendant’s otherwise untimely habeas petition.

Part II discusses the role of federal habeas corpus …

Given An Inch, The Detainee Effort To Take A Mile: The Detainee Legislation And The Dangers Of The "Litigation Weapon In Unrestrained Enemy Hands", Brian D. Fahy

Pepperdine Law Review

No abstract provided.

Challenging The Habeas Process Rather Than The Result, Justin F. Marceau

Washington and Lee Law Review

Habeas scholarship has repeatedly assessed whether the Antiterrorism and Effective Death Penalty Act’s (AEDPA’s) limitations on federal habeas relief were as severe in practice as they appeared to be on paper. By analyzing recent doctrinal shifts—particularly focusing on two Supreme Court decisions from this Term—and substantial new empirical data, this Article acknowledges that AEDPA’s bite has reached substantial proportions, in many ways exceeding the initial concerns and hype surrounding the legislation. More importantly, after acknowledging that federal habeas relief from state court convictions has become “microscopically” rare, this Article considers what the rarity of relief ought to mean as a …

Collateral Review Of Career Offender Sentences: The Case For Coram Nobis, Douglas J. Bench Jr.

University of Michigan Journal of Law Reform

Occasionally, criminals correctly interpret the law while courts err. Litigation pursuant to the federal Armed Career Criminal Act (ACCA) includes numerous examples. The ACCA imposes harsher sentences upon felons in possession of firearms with prior "violent felony" convictions. Over time, courts defined "violent" so contrary to its common meaning that it eventually came to encompass driving under the influence, unwanted touching, and the failure to report to correctional facilities. However, in a series of recent decisions, the Supreme Court has attempted to clarify the meaning of violent in the context of the ACCA and, in the process, excluded such offenses. …

Habeas Corpus Writ Of Liberty, Boumediene And Beyond, Scott J. Shackelford

Cleveland State Law Review

This book review focuses on Robert Walker's Habeas Corpus Writ of Liberty: English and American Origins and Development.

Section 1983 Cases In The October 2004 Term, Martin A. Schwartz

Touro Law Review

No abstract provided.

Aedpa Statute Of Limitations: Is It Tolled When The United States Supreme Court Is Asked To Review A Judgment From A State Post-Conviction Proceeding, Diane E. Courselle

Cleveland State Law Review

This thirty-seven word provision [the tolling provision in the Antiterrorism and Effective Death Penalty Act] has been construed by the United States Supreme Court three times since 1996, and yet several questions remain unanswered. One such unanswered question is whether tolling occurs when a petitioner files a petition for writ of certiorari to the United State Supreme Court from the state court postconviction decision. In other words, does seeking the United States Supreme Court's review from a state court's final decision on an "application for State post-conviction or other collateral review" keep the state post-conviction application "pending?" That is the …

Comment On For Whom The Court Tolls: Equitable Tolling Of The Aedpa Statute Of Limitations In Capital Habeas Cases, Roger D. Groot

Washington and Lee Law Review

No abstract provided.

For Whom The Court Tolls: Equitable Tolling Of The Aedpa Statute Of Limitations In Capital Habeas Cases, Aaron G. Mccullough

Washington and Lee Law Review

No abstract provided.

Habeas Standards Of Review Under 28 U.S.C. § 2254(D)(1): A Commentary On Statutory Text And Supreme Court Precedent, Allan Ides

Washington and Lee Law Review

No abstract provided.