Law Commons^™

Habeas Corpus—A Better Remedy In Visitation Denial Cases, James A. Albert, Gregory A. Brodek

Maine Law Review

Most family law statistics are sobering. For example, in 1986, there were 2,400,000 marriages in the United States and 1,159,000 divorces. In 1985, there were 2,425,000 marriages and 1,187,000 divorces. Millions of children are affected by these divorces each year as courts decide which parent should be awarded their custody. In 1986, there were approximately 63,000,000 American children and 6,139,000 of these children came from broken homes. According to official census statistics, twenty-one percent of America's children live only with their mother while less than three percent live only with their father. In most divorce cases, Mom gets custody and …

“Improve Your Privileges While They Stay”: A Guide To Improve The Privileges Of U.S. Citizenship For Everybody, Joshua J. Schroeder

Touro Law Review

In 1767, the young Phillis Wheatley wrote from her position of slavery in the Wheatley home of Boston to “ye sons of Science” at Harvard College, telling them to “improve your privileges while they stay.” She beheld the startling privileges of learning and discovery bestowed upon an elite group of young, rich white men in Boston and celebrated their privileges. Neither did she scorn those whose luck had placed a bounty of privilege upon their laps, for she likely planned to share in that bounty herself, one day. When she was only 13 or 14, Wheatley sublimely encouraged grown men …

The Procedural Tragedy Of Cook V. State: A Call To The General Assembly To Finish What It Started, Paxton Murphy

Georgia Law Review

On March 15, 2022, the Georgia Supreme Court decided Cook v. State. This case was a bombshell in Georgia’s postconviction law because it discarded decades of judicial precedent overnight. For years, Georgia’s criminal defendants relied on motions for out-of-time appeals when defense counsel failed to appeal before a deadline or to advise a defendant of his or her appellate rights. The out-of-time appeal procedure was a quick, easy, and fair way to return the defendant to the exact same place he was before the appeal deadline was missed.

The ramifications of Cook were severe. Overnight, every outof-time appeal case in …

Why Judges Should Use 18 U.S.C. § 3553 To Assess Prison Sentences Qualitatively In The Context Of Collateral Relief, Luke Doughty

Indiana Journal of Law and Social Equality

No abstract provided.

Another Bite At The Apple Or The Same Bite? Characterizing Habeas Petitions On Appeal As Pending Instead Of Fully Adjudicated, Gregory Winder

William & Mary Law Review

[...] One of the Act's [Antiterrorism and Effective Death Penalty Act] most significant aspects is its restriction on the filing of successive habeas corpus petitions. Responding to this restriction, prisoners have attempted to circumvent the AEDPA through a number of different procedural routes with varying degrees of success.

This Note examines the circuit split that has emerged for one of those procedural attempts—motions to amend habeas petitions following adjudication on the merits and while on appeal in a circuit court. This Note argues that allowing amendment of habeas petitions on appeal is both consistent with the history of habeas corpus …

The Decline Of Habeas Corpus In Israel, Israel Zvi Gilat, Joshua Segev

Pace Law Review

No abstract provided.

The Suspension Clause After Department Of Homeland Security V. Thuraissigiam, Jonathan Hafetz

St. John's Law Review

(Excerpt)

In June 2020, in Department of Homeland Security v. Thuraissigiam, the Supreme Court of the United States rejected a constitutional challenge to Congress’s decision to eliminate habeas corpus jurisdiction over legal challenges to expedited removal orders by noncitizens in federal detention.

In Thuraissigiam, U.S. border patrol stopped the petitioner, Vijayakumar Thuraissigiam, a Sri Lankan national of Tamil ethnicity, shortly after he crossed the U.S.-Mexico border without inspection or an entry document. The petitioner asserted that he was fleeing persecution in his home country and sought asylum in the United States. The asylum officer concluded that Thuraissigiam had …

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 …

Aedpa Repeal, Brandon L. Garrett, Kaitlin Phillips

Faculty Scholarship

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) dramatically altered the scope of federal habeas corpus. Enacted in response to a domestic terrorism attack, followed by a capital prosecution, and after decades of proposals seeking to limit post conviction review of death sentences, and Supreme Court rulings severely limiting federal habeas remedies, AEDPA was ratified with little discussion or deliberation. The law and politics of death penalty litigation, which had been particularly active since the U.S. Supreme Court invalidated all death penalty schemes in its 1972 ruling in Furman v. Georgia, culminated in restrictions for all federal habeas …

Limiting Access To Remedies: Select Criminal Law And Procedure Cases From The Supreme Court's 2021-22 Term, Eve Brensike Primus, Justin Hill

Articles

Although the most memorable cases from the Supreme Court’s 2021-22 Term were on the civil side of its docket, the Court addressed significant cases on the criminal side involving the Confrontation Clause, capital punishment, double jeopardy, criminal jurisdiction in Indian Country, and important statutory interpretation principles, such as the mens rea presumption and the scope of the rule of lenity. Looking back, the Court’s decisions limiting individuals’ access to remedies for violations of their constitutional criminal procedure rights stand out. Shinn v. Ramirez and Shoop v. Twyford drastically limit the ability of persons incarcerated in state facilities to challenge the …

The Myth Of The Great Writ, Leah M. Litman

Articles

Habeas corpus is known as the “Great Writ” because it supposedly protects individual liberty against government overreach and guards against wrongful detentions. This idea shapes habeas doctrine, federal courts theories, and habeas-reform proposals.

It is also incomplete. While the writ has sometimes protected individual liberty, it has also served as a vehicle for the legitimation of excesses of governmental power. A more complete picture of the writ emerges when one considers traditionally neglected areas of public law that are often treated as distinct—the law of slavery and freedom, Native American affairs, and immigration. There, habeas has empowered abusive exercises of …

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 …

Discretionary Injustice: Limiting Due Process Rights Of Undocumented Immigrants Upon Removal After Re-Entry, Brendan Dauscher

Touro Law Review

No abstract provided.

Of What Consequence?: Sexual Offender Laws And Federal Habeas Relief, Katherine A. Mitchell

University of Miami Law Review

New concerns for an old writ. The relatively recent advent of sex offender registries has led to consequences in the habeas corpus context—and they may be more than collateral. In particular, are the restraints imposed on registered sex offenders severe enough to constitute custody for habeas jurisdiction? With a recent split among the federal circuit courts, this Article attempts to decipher which side of the split the Supreme Court will—and should—fall.

A Comparison And Contrast Of The Suspension Of The Writ Of Habeas Corpus By Presidents Abraham Lincoln & George W. Bush, Clayton Barnes

Lincoln Memorial University Law Review Archive

During their presidencies, Abraham Lincoln and George W. Bush both suspended the writ of habeas corpus; while these two situations appear to be similar, the facts surrounding each president’s suspension are vastly different. As I will later discuss in detail, President Lincoln was faced with an imminent rebellion near our nation’s capital that threatened the existence of the United States, had it been successful. On the other hand, President Bush called for the detention of enemy combatants on foreign soil where there was no immediate danger posed to the United States becuase a substantial amount of time had passed since …

Possible Reliance: Protecting Legally Innocent Johnson Claimants, Keagan Potts

Michigan Law Review

The writ of habeas corpus presents the last chance for innocent defendants to obtain relief from invalid convictions and sentences. The writ constitutes a limited exception to the finality of judgments. Given the role finality plays in conserving judicial resources and deterring criminal conduct, exceptions created by habeas must be principally circumscribed. Since the Supreme Court’s invalidation of the Armed Career Criminal Act’s residual clause in Johnson v. United States, the federal courts of appeals have attempted to develop a test that protects the writ from abuse by Johnson claimants.

This Note first contributes a new understanding of the …

A Small But Mighty Docket: Select Criminal Law And Procedure Cases From The Supreme Court's 2019-20 Term, Eve Brensike Primus, Jeremy Shur

Articles

With its 2019-20 Term disrupted by the COVID-19 pandemic, the Supreme Court released just 53 signed decisions, the fewest decisions in a Term since the Civil War. But the Court's lighter docket still featured important criminal law and procedure cases touching on what constitutes reasonable individualized suspicion, the necessity of jury unanimity, and the proper form of the insanity defense.

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 …

Petitioners' Reply Memorandum In Support Of Their Emergency Petetion For A Writ Of Habeas Corpus, Joseph Mead, David J. Carey, Freda J. Levenson, David A. Singleton, Mark A. Vander Laan, Michael L. Zuckerman

Law Faculty Briefs and Court Documents

In the roughly 120 hours since Petitioners filed their emergency petition for a writ of habeas corpus, the death toll at Elkton has doubled, and the number of BOP-confirmed COVID-19 cases among prisoners has tripled. About three dozen corrections staff have tested positive for the virus, a number that has also tripled since this case was filed. Elkton now accounts for more than one-third of all prisoner deaths from COVID-19 in federal prisons nationwide, and over half of the COVID-19 deaths in Columbiana County, making it one of the deadliest places a person can live in the current pandemic. According …

Emergency Petition For Writ Of Habeas Corpus, Injunctive, And Declaratory Relief - Class Action, Joseph Mead, David J. Carey, Mark A. Vander Laan, Freda Levenson, David Singleton

Law Faculty Briefs and Court Documents

As a tragic combination of infectious and deadly, COVID-19 poses a once-in-a-lifetime threat on a worldwide scale. Every state and territory in the United States has now been impacted, with nearly half a million cases and over 20,000 deaths reported to the Centers for Disease Control and Prevention (CDC). Even under ordinary conditions, each person who contracts this illness can be expected to infect between 2 and 3 others.

Cramped, overcrowded prisons amplify this threat. With thousands of people literally stacked on top of each other and unable to move around without rubbing shoulders, such environments are fundamentally incompatible with …

A Suspended Death Sentence: Habeas Review Of Expedited Removal Decisions, Lauren Schusterman

Michigan Law Review

Expedited removal allows low-level immigration officers to summarily order the deportation of certain noncitizens, frequently with little to no judicial oversight. Noncitizens with legitimate asylum claims should not find themselves in expedited removal. When picked up by immigration authorities, they should be referred for a credible fear interview and then for more thorough proceedings.

Although there is clear congressional intent that asylum seekers not be subjected to expedited removal, mounting evidence suggests that expedited removal fails to identify bona fide asylum seekers. Consequently, many of them are sent back to persecution. Such decisions have weighty consequences, but they have remained …

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 …

Changed Science Writs And State Habeas Relief, Valena Beety

Articles by Maurer Faculty

For decades now, the 1996 federal Antiterrorism and Effective Death Penalty Act (AEDPA) has limited the scope and influence of federal courts in post-conviction case review, forcing convicted individuals to rely instead on state habeas proceedings for conviction relief. Due in large part to the 2009 National Academy of Sciences Report, petitions for conviction relief increasingly include challenges to the government’s scientific evidence at trial. These petitions analyze that evidence by comparing the trial evidence to the advancement of scientific findings and scientific knowledge in the years since the trial. State habeas petitions thus provide an avenue for relief from …

Eighteen Years Of Detention At Guantánamo Bay: Compliance With International Law Or The Specter Of Tyranny?, Dru Brenner-Beck

American University International Law Review

No abstract provided.

Habeas Corpus And The Politics Of History, Isaac Cui

Pomona Senior Theses

Vijayakumar Thuraissigiam, a Tamil citizen of Sri Lanka, was apprehended after unlawfully entering the United States. Placed in expedited removal proceedings, which allows for streamlined deportation, Thuraissigiam sought asylum. However, he was found to lack the requisite credible fear of persecution based on a protected status. He petitioned for a writ of habeas corpus to review the legality of that determination. But because the expedited removal process limits federal habeas jurisdiction, his petition was dismissed. He claims that limitation violates the U.S. Constitution’s Suspension Clause, which provides: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless …

Select Criminal Law And Procedure Cases From The U.S. Supreme Court's 2018-2019 Term, Eve Brensike Primus, Kristin Froehle

Articles

Although the 2018-19 Term at the Supreme Court did not include any blockbuster rulings like Carpenter v. United States, the Court issued a number of significant criminal law and procedure rulings. It addressed warrantless blood-alcohol testing, the dual-sovereignty doctrine, the right to trial by jury, ineffective assistance of trial counsel, questions of incorporation, prisoners' competence to be executed, permissible methods of execution, and some important statutory interpretation questions. Looking back on the Term, Justice Gorsuch clearly solidified his position as the libertarian "swing" vote in criminal procedure cases. He joined the liberals to uphold a defendant's right to trial …

Reforming Recidivism: Making Prison Practical Through Help, Katelyn Copperud

The Scholar: St. Mary's Law Review on Race and Social Justice

While Texas has long been recognized as “Tough Texas” when it comes to crime, recent efforts have been made to combat that reputation. Efforts such as offering “good time” credit and more liberal parole standards are used to reduce the Texas prison populations. Although effective in reducing prison populations, do these incentives truly reduce a larger issue of prison overpopulation: recidivism?

In both state and federal prison systems, inmate education is proven to reduce recidivism. Texas’s own, Windham School District, provides a broad spectrum of education to Texas Department of Criminal Justice inmates; from General Education Development (GED) classes to …

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 …

Equitable Gateways: Toward Expanded Federal Habeas Corpus Review Of State Court Criminal Convictions, Eve Brensike Primus

Articles

State prisoners who file federal habeas corpus petitions face a maze of procedural and substantive restrictions that effectively prevent almost all prisoners from obtaining meaningful review of their convictions. But it is a mistake to think that habeas litigation is just a Kafkaesque nightmare with no constructive potential. Federal courts do sometimes cut through the doctrinal morass to consider state prisoners’ claims, relying on what this Articleterms "equitable gateways" to federal habeas relief. Litigants and courts generally underestimate the potential these gateways offer, with the result that habeas litigation does not focus on them as often as it should. Here …

Originalism And A Forgotten Conflict Over Martial Law, Bernadette Meyler

Northwestern University Law Review

This Symposium Essay asks what a largely forgotten conflict over habeas corpus and martial law in mid-eighteenth-century New York can tell us about originalist methods of constitutional interpretation. The episode, which involved Abraham Yates, Jr.—later a prominent Antifederalist—as well as Lord Loudoun, the commander of the British forces in America, and New York Acting Governor James De Lancey, furnishes insights into debates about martial law prior to the Founding and indicates that they may have bearing on originalist interpretations of the Suspension Clause. It also demonstrates how the British imperial context in which the American colonies were situated shaped discussions …