Habeas Corpus
Bonus Chapter 22a

Latin for "that you have the body." A writ of habeas corpus is used to bring a prisoner before the court to determine if the person's detention is lawful. A habeas petition proceeds as a civil action against the State agent (usually a warden) who holds the defendant in custody. It can also be used to examine any extradition processes used, amount of bail, and the jurisdiction of the court. see, e.g. Felker v. Turpin, 518 US 1051 (1996) and McCleskey v. Zant 499 US 467 (1991).

Habeas Corpus: Scope of the Writ.—At the English common law, habeas corpus was available to attack pretrial detention and confinement by executive order; it could not be used to question the conviction of a person pursuant to the judgment of a court with jurisdiction over the person. That common law meaning was applied in the federal courts. Expansion began after the Civil War through more liberal court interpretation of “jurisdiction.” Thus, one who had already completed one sentence on a conviction was released from custody on a second sentence on the ground that the court had lost jurisdiction upon completion of the first sentence. Then, the Court held that the constitutionality of the statute upon which a charge was based could be examined on habeas, because an unconstitutional statute was said to deprive the trial court of its jurisdiction. Other cases expanded the want–of–jurisdiction rationale. But the present status of the writ of habeas corpus may be said to have been started in its development in Frank v. Mangum, in which the Court reviewed on habeas a murder conviction in a trial in which there was substantial evidence of mob domination of the judicial process. This issue had been considered and rejected by the state appeals court. The Supreme Court indicated that, though it might initially have had jurisdiction, the trial court could have lost it if mob domination rendered the proceedings lacking in due process.

Further, in order to determine if there had been a denial of due process, a habeas court should examine the totality of the process, including the appellate proceedings. Since Frank’s claim of mob domination was reviewed fully and rejected by the state appellate court, he had been afforded an adequate corrective process for any denial of rights, and his custody was not in violation of the Constitution. Then, eight years later, in Moore v. Dempsey, involving another conviction in a trial in which the court was alleged to have been influenced by a mob and in which the state appellate court had heard and rejected Moore’s contentions, the Court directed that the federal district judge himself determine the merits of the petitioner’s allegations.

Moreover, the Court shortly abandoned its emphasis upon want of jurisdiction and held that the writ was available to consider constitutional claims as well as questions of jurisdiction. The landmark case was Brown v. Allen, in which the Court laid down several principles of statutory construction of the habeas statute. First, all federal constitutional questions raised by state prisoners are cognizable in federal habeas. Second, a federal court is not bound by state court judgments on federal questions, even though the state courts may have fully and fairly considered the issues. Third, a federal habeas court may inquire into issues of fact as well as of law, although the federal court may defer to the state court if the prisoner received an adequate hearing. Fourth, new evidentiary hearings must be held when there are unusual circumstances, when there is a “vital flaw” in the state proceedings, or when the state court record is incomplete or otherwise inadequate.

Almost plenary federal habeas review of state court convictions was authorized and rationalized in the Court’s famous “1963 trilogy.” First, the Court dealt with the established principle that a federal habeas court is empowered, where a prisoner alleges facts which if proved would entitle him to relief, to relitigate facts, to receive evidence and try the facts anew, and sought to lay down broad guidelines in order to guide district courts as to when they must hold a hearing and find facts. “Where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding.” To “particularize” this general test, the Court went on to hold that an evidentiary hearing must take place when the merits of the factual dispute were not resolved in the state hearing; the state factual determination is not fairly supported by the record as a whole; the fact finding procedure employed was not adequate to afford a full and fair hearing; there is a substantial allegation of newly discovered evidence; the material facts were not adequately developed at the state hearing; or for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.

Second, Sanders v. United States dealt with two interrelated questions: the effects to be given successive petitions for the writ, when the second or subsequent application presented grounds previously asserted or grounds not theretofore raised. Emphasizing that “[c]conventional notions of finality of litigation have no place where life or liberty is at stake and infringement of constitutional rights is alleged,” the Court set out generous standards for consideration of successive claims. As to previously asserted grounds, the Court held that controlling weight may be given to a prior denial of relief if the same ground presented was determined adversely to the applicant before, the prior determination was on the merits, and the ends of justice would not be served by reaching the merits of the subsequent application, so that the habeas court might but was not obligated to deny relief without considering the claim on the merits. With respect to grounds not previously asserted, a federal court considering a successive petition could refuse to hear the new claim only if it decided the petitioner had deliberately bypassed the opportunity in the prior proceeding to raise it; if not, “[n]o matter how many prior applications for federal collateral relief a prisoner has made,” the court must consider the merits of the new claim.

Third, the most controversial of the 1963 cases, Fay v. Noia, dealt with the important issue of state defaults, of, that is, what the effect on habeas is when a defendant in a state criminal trial has failed to raise in a manner in accordance with state procedure a claim which he subsequently wants to raise on habeas. If, for example, a defendant fails to object to the admission of certain evidence on federal constitutional grounds in accordance with state procedure and within state time constraints, the state courts may therefore simply refuse to address the merits of the claim, and the State’s “independent and adequate state ground” bars direct federal review of the claim. Whether a similar result prevailed upon habeas divided the Court in Brown v. Allen, in which the majority held that a prisoner, refused consideration of his appeal in state court because his papers had been filed a day late, could not be heard on habeas because of his state procedural default. The result was changed in Fay v. Noia, in which the Court held that the adequate and independent state ground doctrine was a limitation only upon the Court’s appellate review, but that it had no place in habeas. A federal court has power to consider any claim that has been procedurally defaulted in state courts.

Still, the Court recognized that the States had legitimate interests that were served by their procedural rules, and that it was important that state courts have the opportunity to afford a claimant relief to which he might be entitled. Thus, a federal court had discretion to deny a habeas petitioner relief if it found that he had deliberately bypassed state procedure; the discretion could be exercised only if the court found that the prisoner had intentionally waived his right to pursue his state remedy.
Liberalization of the writ thus made it possible for convicted persons who had fully litigated their claims at state trials and on appeal, who had because of some procedural default been denied the opportunity to have their claims reviewed, or who had been at least once heard on federal habeas, to have the chance to present their grounds for relief to a federal habeas judge. In addition to opportunities to relitigate the facts and the law relating to their convictions, prisoners could as well take advantage of new constitutional decisions that were retroactive. The filings in federal courts increased year by year, but the numbers of prisoners who in fact obtained either release or retrial remained quite small. A major effect, however, was to exacerbate the feelings of state judges and state law enforcement officials and to stimulate many efforts in Congress to enact restrictive habeas amendments. While the efforts were unsuccessful, complaints were received more sympathetically in a newly constituted Supreme Court and rulings that are more restrictive ensued.

The discretion afforded the Court was sounded by Justice Rehnquist, who, after reviewing the case law on the 1867 statute, remarked that the history “illustrates this Court’s historic willingness to overturn or modify its earlier views of the scope of the writ, even where the statutory language authorizing judicial action has remained unchanged.” The emphasis from early on has been upon the equitable nature of the habeas remedy and the judiciary’s responsibility to guide the exercise of that remedy in accordance with equitable principles; thus, the Court time and again underscores that the federal courts have plenary power under the statute to implement it to the fullest while the Court’s decisions may deny them the discretion to exercise the power. Change has occurred in several respects in regard to access to and the scope of the writ. It is sufficient to say that the more recent rulings have eviscerated the content of the 1963 trilogy and that Brown v. Allen itself is threatened with extinction.

First, the Court in search and seizure cases has returned to the standard of Frank v. Mangum, holding that where the state courts afford a criminal defendant the opportunity for a full and adequate hearing on his Fourth Amendment claim, his only avenue of relief in the federal courts is to petition the Supreme Court for review and that he cannot raise those claims again in a habeas petition. Grounded as it is in the Court’s dissatisfaction with the exclusionary rule, the case has not since been extended to other constitutional grounds, but the rationale of the opinion suggests the likelihood of reaching other exclusion questions.

Second, the Court has formulated a “new rule” exception to habeas cognizance. That is, subject to two exceptions, a case decided after a petitioner’s conviction and sentence became final may not be the predicate for federal habeas relief if the case announces or applies a “new rule.” A decision announces a new rule “if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” If a rule “was susceptible to debate among reasonable minds,” it could not have been dictated by precedent, and therefore it must be classified as a “new rule.”

Third, the Court has largely maintained the standards of Townsend v. Sain, as embodied in somewhat modified form in statute, with respect to when federal judges must conduct an evidentiary hearing. However, one Townsend factor, not expressly set out in the statute, has been overturned, in order to bring the case law into line with other decisions. Townsend had held that a hearing was required if the material facts were not adequately developed at the state–court hearing. If the defendant had failed to develop the material facts in the state court, however, the Court held that unless he had “deliberately bypass[ed]” that procedural outlet he was still entitled to the hearing. The Court overruled that point and substituted a much–stricter “cause–and–prejudice” standard.

Fourth, the Court has significantly stiffened the standards governing when a federal habeas court should entertain a second or successive petition filed by a state prisoner, which was dealt with by Sanders v. United States. A successive petition may be dismissed if the same ground was determined adversely to petitioner previously, the prior determination was on the merits, and “the ends of justice” would not be served by reconsideration. It is with the latter element that the Court has become more restrictive. A plurality in Kuhlmann v. Wilson argued that the “ends of justice” standard would be met only if a petitioner supplemented her constitutional claim with a colorable showing of factual innocence. While the Court has not expressly adopted this standard, a later capital case utilized it, holding that a petitioner sentenced to death could escape the bar on successive petitions by demonstrating “actual innocence” of the death penalty by showing by clear and convincing evidence that no reasonable juror would have found the prisoner eligible for the death penalty under applicable state law.

Even if the subsequent petition alleges new and different grounds, a habeas court may dismiss the petition if the prisoner’s failure to assert those grounds in the prior, or first, petition constitutes “an abuse of the writ.” Following the 1963 trilogy and especially Sanders, the federal courts had generally followed a rule excusing the failure to raise claims in earlier petitions unless the failure was a result of “inexcusable neglect” or of deliberate relinquishment. In McClesky v. Zant, the Court construed the “abuse of the writ” language to require a showing of both “cause and prejudice” before a petitioner may allege in a second or later petition a ground or grounds not alleged in the first. In other words, to avoid subsequent dismissal, a petitioner must allege in his first application all the grounds he may have, unless he can show cause, some external impediment, for his failure and some actual prejudice from the error alleged. If he cannot show cause and prejudice, the petitioner may be heard only if she shows that a “fundamental miscarriage of justice” will occur, which means she must make a “colorable showing of factual innocence.”

Fifth, the Court abandoned the rules of Fay v. Noia, although it was only very recently that it expressly overruled the case. Fay, it will be recalled, dealt with so–called procedural–bar circumstances; that is, if a defendant fails to assert a claim at the proper time or in accordance with proper procedure under valid state rules, and if the State then refuses to reach the merits of his claim and holds against him solely because of the noncompliance with state procedure, when may a petitioner present the claim in federal habeas? The answer in Fay was that the federal court always had power to review the claim but that it had discretion to deny relief to a habeas claimant if it found that the prisoner had intentionally waived his right to pursue his state remedy through a “deliberate bypass” of state procedure.

That is no longer the law. “In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Fay was based on a conception of federal/state relations that undervalued the importance of state procedural rules.” The “miscarriage–of–justice” element is probably limited to cases in which actual innocence or actual impairment of a guilty verdict can be shown. The concept of “cause” excusing failure to observe a state rule is extremely narrow; “the existence of cause for procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” As for the “prejudice” factor, it is an undeveloped concept, but the Court’s only case establishes a high barrier.


The Court continues, with some modest exceptions, to construe habeas jurisdiction quite restrictively, but it has now been joined by new congressional legislation that is also restrictive. In Herrera v. Collins, the Court appeared, though ambiguously, to take the position that, while it requires a showing of actual innocence to permit a claimant to bring a successive or abusive petition, a claim of innocence is not alone sufficient to enable a claimant to obtain review of his conviction on habeas. Petitioners are entitled in federal habeas courts to show that they are imprisoned in violation of the Constitution, not to seek to correct errors of fact. But a claim of innocence does not bear on the constitutionality of one’s conviction or detention, and the execution of one claiming actual innocence would not itself violate the Constitution.

But, in Schlup v. Delo, the Court adopted the plurality opinion of Kuhlmann v. Wilson and held that, absent a sufficient showing of “cause and prejudice,” a claimant filing a successive or abusive petition must, as an initial matter, make a showing of “actual innocence” so as to fall within the narrow class of cases implicating a fundamental miscarriage of justice. The Court divided, however, with respect to the showing a claimant must make. One standard, found in some of the cases, was championed by the dissenters; “to show ‘actual innocence’ one must show by clear and convincing evidence that but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty.” The Court adopted a second standard, under which the petitioner must demonstrate that “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” To meet this burden, a claimant “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.”

In the Antiterrorism and Effective Death Penalty Act of 1996, Congress imposed tight new restrictions on successive or abusive petitions, including making the circuit courts “gate keepers” in permitting or denying the filing of such petitions, with bars to appellate review of these decisions, provisions that in part were upheld in Felker v. Turpin. An important new restriction on the authority of federal habeas courts is that found in the new law, which provides that a habeas court shall not grant a writ to any person in custody pursuant to a judgment of a state court “with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[.]”
Ex parte Watkins, 3 Pet. (28 U.S.) 193 (1830) (Chief Justice Marshall); cf. Ex parte Parks, 93 U.S. 18 (1876). But see Fay v. Noia, 372 U.S. 391, 404–415 (1963). It should be noted that the expansive language used when Congress in 1867 extended the habeas power of federal courts to state prisoners “restrained of . . . liberty in violation of the constitution, or of any treaty or law of the United States. . . .”, 14 Stat. 385 , could have encouraged an expansion of the writ to persons convicted after trial.

Ex parte Lange, 18 Wall. (85 U.S.) 163 (1874). Ex parte Siebold, 100 U.S. 371 (1880); Ex parte Royall, 117 U.S. 241 (1886); Crowley v. Christensen, 137 U.S. 86 (1890); Yick Wo v. Hopkins, 118 U.S. 356 (1886). Ex parte Wilson, 114 U.S. 417 (1885); Nielsen, Petitioner, 131 U.S. 176 (1889); In re Snow, 120 U.S. 274 (1887); but see Ex parte Parks, 93 U.S. 18 (1876); Ex parte Bigelow, 113 U.S. 328 (1885). It is possible that the Court expanded the office of the writ because its reviewing power over federal convictions was closely limited. F. Frankfurter & J. Landis, op. cit., n. 12, 109–113. Once such review was granted, the Court began to restrict the use of the writ. E.g., Glasgow v. Moyer, 225 U.S. 420 (1912); In re Lincoln, 202 U.S. 178 (1906); In re Morgan, 203 U.S. 96 (1906). 237 U.S. 309 (1915). 261 U.S. 86 (1923).

Waley v. Johnston, 316 U.S. 101 (1942). See also Johnson v. Zerbst, 304 U.S. 458 (1938); Walker v. Johnson, 312 U.S. 275 (1941). The way one reads the history of the developments is inevitably a product of the philosophy one brings to the subject. In addition to the recitations cited in other notes, compare Wright v. West, 112 S.Ct. 2482, 2486–2487 & n. 3 (1992) (Justice Thomas for a plurality of the Court), with id., 2493–2495 (Justice O’Connor concurring).

344 U.S. 443 (1953). Brown is commonly thought to rest on the assumption that federal constitutional rights cannot be adequately protected only by direct Supreme Court review of state court judgments but that independent review, on habeas, must rest with federal judges. It is, of course, true that Brown coincided with the extension of most of the Bill of Rights to the States by way of incorporation and expansive interpretation of federal constitutional rights; previously, there was not a substantial corpus of federal rights to protect through habeas. See Wright v. West, 112 S.Ct. 2482, 2493–2494 (1992) (Justice O’Connor concurring). In Fay v. Noia, 372 U.S. 391 (1963), Justice Brennan, for the Court, and Justice Harlan, in dissent, engaged in a lengthy, informed historical debate about the legitimacy of Brown and its premises. Compare id., 401–424, with id., 450–461. See the material gathered and cited in Hart & Wechsler, op. cit., n. 250, 1487–1505. Sanders v. United States, 373 U.S. 1 (1963); Fay v. Noia, 372 U.S. 391 (1963); Townsend v. Sain, 372 U.S. 293 (1963). These cases dealt, respectively, with the treatment to be accorded a habeas petition in the three principal categories in which they come to the federal court: when a state court has rejected petitioner’s claims on the merits, when a state court has refused to hear petitioner’s claims on the merits because she has failed properly or timely to present them, or when the petition is a second or later petition raising either old or new, or mixed, claims. Of course, as will be demonstrated infra, these cases have now been largely drained of their force.

Townsend v. Sain, 372 U.S. 293, 310–312 (1963). If the district judge concluded that the habeas applicant was afforded a full and fair hearing by the state court resulting in reliable findings, the Court said, he may, and ordinarily should, defer to the state fact-finding. Id., 318. Under the 1966 statutory revision, a habeas court must generally presume correct a state court’s written findings of fact from a hearing to which the petitioner was a party.

A state finding cannot be set aside merely on a preponderance of the evidence and the federal court granting the writ must include in its opinion the reason it found the state findings not fairly supported by the record or the existence of one or more listed factors justifying disregard of the fact-finding. P.L. 89–711, 80 Stat. 1105, 28 U.S.C. Sec. 2254 (d). See Sumner v. Mata, 449 U.S. 539 (1981); Sumner v. Mata, 455 U.S. 591 (1982); Marshall v. Lonberger, 459 U.S. 422 (1983); Patton v. Yount, 467 U.S. 1025 (1984); Parker v. Dugger, 498 U.S. 308 (1991); Burden v. Zant, 498 U.S. 433 (1991). The presumption of correctness does not apply to questions of law or to mixed questions of law and fact. Miller v. Fenton, 474 U.S. 104, 110–116 (1985). However, in Wright v. West, 112Ct.2482 (1992), the Justices argued inconclusively whether deferential review of questions of law or especially of law and fact should be adopted. Townsend v. Sain, 372 U.S. 293, 312 (1963). The Court was unanimous on the statement, but it divided 5–to–4 on application.

Id., 313–318. Congress in 1966 codified the factors in somewhat different form but essentially codified Townsend. P.L. 89–711, 80 Stat. 1105, 28 U.S.C. Sec. 2254. The present Court is of the view that Congress neither codified Townsend nor precluded the Court from altering the Townsend standards. Keeney v. Tamayo–Reyes, 112 S.Ct. 1715, 1720 n. 5 (1992). Compare id., 1725–1727 (Justice O’Connor dissenting). Keeney formally overruled part of Townsend. Id., 1717.

373 U.S. 1 (1963). Sanders was a Sec. 2255 case, a federal prisoner petitioning for post conviction relief. The Court applied the same liberal rules with respect to federal prisoners as it did for state. See Kaufman v. United States, 394 U.S. 217 (1969). As such, the case has also been eroded by subsequent cases. E.g., Davis v. United States, 411 U.S. 233 (1973); United States v. Frady, 456 U.S. 152 (1982).

Id., 373 U.S., 8. The statement accorded with the established view that principles of res judicata were not applicable in habeas. E.g., Price v. Johnston, 334 U.S. 266 (1948); Wong Doo v. United States, 265 U.S. 239 (1924); Salinger v. Loisel, 265 U.S. 224 (1924). Congress in 1948 had appeared to adopt some limited version of res judicata for federal prisoners but not for state prisoners, Act of June 25, 1948, 62 Stat. 965, 967 , 28 U.S.C. §§ 2244 , 2255, but the Court in Sanders held the same standards applicable and denied the statute changed existing case law. Id., 373 U.S., 11–14. But see id., 27– 28 (Justice Harlan dissenting).

Id., 15. In codifying the Sanders standards in 1966, P.L. 89–711, 80 Stat. 1104, 28 U.S.C. Sec. 2244 (b), Congress omitted the “ends of justice” language. Although it was long thought that the omission probably had no substantive effect, this may not be the case. Kuhlmann v. Wilson, 477 U.S. 436 (1986). Id., 373 U.S., 17–19.

1242 372 U.S. 391 (1963). Fay was largely obliterated over the years, beginning with Davis v. United States, 411 U.S. 233 (1973), a federal–prisoner post conviction relief case, and Wainwright v. Sykes, 433 U.S. 72 (1977), but it was not formally overruled until Coleman v. Thompson, 501 U.S. 722, 744–751 (1991).

E.g., Murdock v. City of Memphis, 20 Wall. (87 U.S.) 590 (1875); Herb v. Pitcairn, 324 U.S. 117 (1945). In the habeas context, the procedural–bar rules are ultimately a function of the requirement that petitioners first exhaust state avenues of relief before coming to federal court. 344 U.S. 443 (1953). Fay v. Noia, 372 U.S. 391, 424–434 (1963). Id., 438–440.

In 1961, state prisoner habeas filings totaled 1,020, in 1965, 4,845, in 1970, a high (to date) of 9,063, in 1975, 7,843 in 1980, 8,534 in 1985, 9,045 in 1986. On relief afforded, no reliable figures are available, but estimates indicate that at most 4% of the filings result in either release or retrial. C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure (1988 & supps.), Sec. 4261, at 284–291.

Wainwright v. Sykes, 433 U.S. 72, 81 (1977). The present Court’s emphasis in habeas cases is, of course, quite different from that of the Court in the 1963 trilogy. Now, the Court favors decisions that promote finality, comity, judicial economy, and channeling the resolution of claims into the most appropriate forum. Keeney v. Tamayo– Reyes, 112 S.Ct. 1715, 1719–1720 (1992). Overall, federalism concerns are critical. See Coleman v. Thompson, 501 U.S. 722, 726 (1991) (“This is a case about federalism.” First sentence of opinion). The seminal opinion on which subsequent cases have drawn is Justice Powell’s concurrence in Schneckloth v. Bustamonte, 412 U.S. 218, 250 (1973). He suggested that habeas courts should entertain only those claims that go to the integrity of the fact–finding process, thus raising questions of the value of a guilty verdict, or, more radically, that only those prisoners able to make a credible showing of “factual innocence” could be heard on habeas. Id., 256–258, 274–275. As will be evident infra, some form of innocence standard now is pervasive in much of the Court’s habeas jurisprudence.

Id., 83; Stone v. Powell, 428 U.S. 465, 495 n. 37 (1976); Francis v. Henderson, 425 U.S. 536, 538 (1976); Fay v. Noia, 372 U.S. 391, 438 (1963). The dichotomy between power and discretion goes all the way back to the case imposing the rule of exhaustion of state remedies. Ex parte Royall, 117 U.S. 241, 251 (1886).

Stone v. Powell, 428 U.S. 465 (1976). The decision is based as much on the Court’s dissatisfaction with the exclusionary rule as with its desire to curb habeas. Holding that the purpose of the exclusionary rule is to deter unconstitutional searches and seizures rather than to redress individual injuries, the Court reasoned that no deterrent purpose was advanced by applying the rule on habeas, except to encourage state courts to give claimants a full and fair hearing. Id., 493–495.

Stone does not apply to a Sixth Amendment claim of ineffective assistance of counsel in litigating a search and seizure claim. Kimmelman v. Morrison, 477 U.S. 365, 382–383 (1986). See also Rose v. Mitchell, 443 U.S. 545 (1979) (racial discrimination in selection of grand jury foreman); Jackson v. Virginia, 443 U.S. 307 (1979) (insufficient evidence to satisfy reasonable doubt standard).

Issues of admissibility of confessions (Miranda violations) and eyewitness identifications are obvious candidates. See, e.g., Duckworth v. Eagan, 492 U.S. 195, 205 (1989) (Justice O’Connor concurring); Brewer v. Williams, 430 U.S. 387, 413–414 (1977) (Justice Powell concurring), and id., 415 (Chief Justice Burger dissenting); Wainwright v. Sykes, 433 U.S. 72, 87 n. 11 (1977) (reserving Miranda).

The first exception permits the retroactive application on habeas of a new rule if the rule places a class of private conduct beyond the power of the State to proscribe or addresses a substantive categorical guarantee accorded by the Constitution. The rule must, to say it differently, either decriminalize a class of conduct or prohibit the imposition of a particular punishment on a particular class of persons. The second exception would permit the application of “watershed rules of criminal procedure” implicating the fundamental fairness and accuracy of the criminal proceeding. Saffle v. Parks, 494 U.S. 484, 494–495 (1990) (citing cases); Sawyer v. Smith, 497 U.S. 227, 241–245 (1990).

Teague v. Lane, 489 U.S. 288 (1989) (plurality opinion); Penry v. Lynaugh, 492 U.S. 302, 313–319 (1989). Butler v. McKellar, 494 U.S. 407, 412 (1990) (quoting Penry v. Lynaugh, 492 U.S. 302, 314 (1989) (quoting Teague v. Lane, 489 U.S. 288, 314 (1989) (plurality opinion) (emphasis in original)). See also Stringer v. Black, 112Ct.1130, 1135 (1992). This latter case found that two decisions relied on by petitioner merely drew on existing precedent and so did not establish a new rule.


See also O’Dell v. Netherland, 521 U.S. 151 (1997); Lambrix v. Singletary, 520 U.S. 518 (1997); Gray v. Netherland, 518 U.S. 152 (1996). But compare Bousley v. Brooks, 523 U.S. 614 (1998). Supra. 1235–1237. Townsend v. Sain, 372 U.S. 293, 313, 317 (1963), imported the “deliberate bypass” standard from Fay v. Noia, 372 U.S. 391, 438 (1963). Keeney v. Tamayo–Reyes, 112Ct.1715 (1992). This standard is imported from the cases abandoning Fay v. Noia and is discussed infra, nn.1266–1270. 373 U.S. 1, 15–18 (1963). The standards are embodied in 28 U.S.C. Sec. 2244 (b). 477 U.S. 436 (1986). Sawyer v. Whitley, 112Ct.2514 (1992). Language in the opinion suggests that the standard is not limited to capital cases. Id., 2519. The standard is in 28 U.S.C. Sec. 2244 (b), along with the standard that if a petitioner “deliberately withheld” a claim, the petition can be dismissed. See also 28 U.S.C. Sec. 2254 Rule 9(b) (judge may dismiss successive petition raising new claims if failure to assert them previously was an abuse of the writ). 499 U.S. 467 (1991). Id., 489–497. On “cause and prejudice,” see infra, nn.1267–1270. The “actual innocence” element runs through the cases under all the headings.

Coleman v. Thompson, 501 U.S. 722, 750 (1991). The standard has been developed in a long line of cases. Davis v. United States, 411 U.S. 233 (1973) (under federal rules); Francis v. Henderson, 425 U.S. 536 (1976); Engle v. Isaac, 456 U.S. 107 (1982); Murray v. Carrier, 477 U.S. 478 (1986); Harris v. Reed, 489 U.S. 255 (1989). Coleman arose because the defendant’s attorney had filed his appeal in state court three days late.

Wainwright v. Sykes involved the failure of defendant to object to the admission of inculpatory statements at the time of trial. Engle v. Isaac involved a failure to object at trial to jury instructions. E.g., Smith v. Murray, 477 U.S. 527, 538–539 (1986); Murray v. Carrier, 477 U.S. 478, 496 (1986).


In Bousley v. Brooks, 523 U.S. 614 (1998), a federal post–conviction relief case, petitioner had pled guilty to a federal firearms offense. Subsequently, the Supreme Court interpreted more narrowly the elements of the offense than had the trial court in Bousley’s case. The Court held that Bousley by his plea had defaulted, but that he might be able to demonstrate “actual innocence” so as to excuse the default if he could show on remand that it was more likely than not that, no reasonable juror would have convicted him of the offense, properly defined.

Id., 488. This case held that ineffective assistance of counsel is not “cause” unless it rises to the level of a Sixth Amendment violation. See also Coleman v. Thompson, 501 U.S. 722, 752–757 (1991) (because petitioner had no right to counsel in state post conviction proceeding where error occurred, he could not claim constitutionally ineffective assistance of counsel). The actual novelty of a constitutional claim at the time of the state court proceeding is “cause” excusing the petitioner’s failure to raise it then, Reed v. Ross, 468 U.S. 1 (1984), although the failure of counsel to anticipate a line of constitutional argument then foreshadowed in Supreme Court precedent is insufficient “cause.” Engle v. Isaac, 456 U.S. 107 (1982). United States v. Frady, 456 U.S. 152, 169 (1982) (under federal rules) (with respect to erroneous jury instruction, inquiring whether the error “so infected the entire trial that the resulting conviction violates due process”).
Supplement Footnotes
506 U.S. 390 (1993). Id. at 398–417. However, in a subsequent part of the opinion, the Court purports to reserve the question whether “a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional,” and it imposed a high standard for making this showing. Id. at 417–19. Justices Scalia and Thomas would have unequivocally held that “[t]here is no basis in text, tradition, or even in contemporary practice . . . for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.” Id. at 427–28 (Concurring). However, it is not at all clear that all the Justices joining the Court believe innocence to be nondispositive on habeas. Id. at 419 (Justices O’Connor and Kennedy concurring), (Justice White concurring).

513 U.S. 298 (1995). Id. at 334 (Chief Justice Rehnquist dissenting, with Justices Kennedy and Thomas), 342 (Justice Scalia dissenting, with Justice Thomas). This standard was drawn from Sawyer v. Whitney, 505 U.S. 333 (1995). 513 U.S. at 327. This standard was drawn from Murray v. Carrier, 477 U.S. 478 (1986).

Pub. L. 104–132, Title I, 110 Stat. 1217–21, amending 28 U.S.C. Sec. Sec. 2244, 2253, 2254, and Rule 22 of the Federal Rules of Appellate Procedure. For a narrowly decided case weakening somewhat the congressional provisions on “gate–keeping,” see Hohn v. United States, 524 U.S. 236 (1998). 518 U.S. 651 (1996).

The amended 28 U.S.C. Sec. 2254(d) (emphasis supplied). On the constitutionality and application of this provision, see the various opinions in Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996) (en banc), rev’d on other grounds, 521 U.S. 320 (1997) ; Drinkard v. Johnson, 97 F.3d 751 (5th Cir. 1996), cert. denied, 520 U.S. 1107 (1997) ; Hall v. Washington, 106 F.3d 742 (7th Cir. 1997); O’Brien v. Dubois, 145 F.3d 16 (1st Cir. 1998); Green v. French, 143 F.3d 865 (4th Cir. 1998), cert. denied, 525 U.S. 1090 (1999).

Habeas Corpus: Congressional and Judicial Control.—Although the writ of habeas corpus has a special status because its suspension is forbidden, except in narrow circumstances, by Article I. Sec. 9, cl. 2, nowhere in the Constitution is the power to issue the writ vested in the federal courts. Could it be that despite the suspension clause restriction Congress could suspend de facto the writ simply by declining to authorize its issuance? Is a statute needed to make the writ available or does the right to habeas corpus stem by implication from the suspension clause or from the grant of judicial power without need of a statute? Since Chief Justice Marshall’s opinion in Ex parte Bollman, it has been generally accepted that “the power to award the writ by any of the courts of the United States, must be given by written law.” The suspension clause, Marshall explained, was an “injunction,” an “obligation” to provide “efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted.” And so it has been under-stood since, with a few judicial voices raised to suggest that what Congress could not do directly it could not do by omission, but inasmuch as statutory authority has always existed authorizing the federal courts to grant the relief they deemed necessary under habeas corpus the Court has never had to face the question.


In Felker v. Turpin,7 the Court again passed up the opportunity to delineate Congress’ permissive authority over habeas, finding that none of the provisions of the Antiterrorism and Effective Death Penalty Act 8 raised questions of constitutional import. Having determined that a statute was necessary before the federal courts had power to issue writs of habeas corpus, Chief Justice Marshall pointed to Sec. 14 of the Judiciary Act of 1789 as containing the necessary authority. As the Chief Justice read it, the authorization was limited to persons imprisoned under federal authority, and it was not until 1867, with two small exceptions, that legislation specifically empowered federal courts to inquire into the imprisonment of persons under state authority. Pursuant to this authorization, the Court expanded the use of the writ into a major instrument to reform procedural criminal law in federal and state jurisdictions.

Habeas Corpus: The Process of the Writ.—A petition for a writ of habeas corpus is filed by or on behalf of a person in “custody,” a concept which has been expanded so much that it is no longer restricted to actual physical detention in jail or prison. Traditionally, the proceeding could not be used to secure an adjudication of a question which if determined in the petitioner’s favor would not result in his immediate release, since a discharge from custody was the only function of the writ, but this restraint too the Court has abandoned in an emphasis upon the statutory language directing the habeas court to “dispose of the matter as law and justice require.” Thus, even if a prisoner has been released from jail, the presence of collateral consequences flowing from his conviction gives the court jurisdiction to determine the constitutional validity of the conviction.

Petitioners coming into federal habeas must first exhaust their state remedies, a limitation long settled in the case law and codified in 1948. It is only required that prisoners once present their claims in state court, either on appeal or collateral attack, and they need not return time and again to raise their issues before coming to federal court. While they were once required to petition the Supreme Court on certiorari to review directly their state convictions, prisoners have been relieved of this largely pointless exercise, although if the Supreme Court has taken and decided a case its judgment is conclusive in habeas on all issues of fact or law actually adjudicated.

A federal prisoner in a Sec. 2255 proceeding will file his motion in the court which sentenced him; a state prisoner in a federal habeas action may file either in the district of the court in which he was sentenced or in the district in which he is in custody. Habeas corpus is not a substitute for an appeal. It is not a method to test ordinary procedural errors at trial or violations of state law but only to challenge alleged errors which if established would go to make the entire detention unlawful under federal law. If after appropriate proceedings, the habeas court finds that on the facts discovered and the law applied the prisoner is entitled to relief, it must grant it, ordinarily ordering the government to release the prisoner unless he is retried within a certain period.
Reference to the “writ of habeas corpus” is to the “Great Writ,” habeas corpus ad subjiciendum, by which a court would inquire into the lawfulness of a detention of the petitioner. Ex parte Bollman, 4 Cr. (8 U.S.) 75, 95 (1807). For other uses, see Carbo v. United States, 364 U.S. 611 (1961); Price v. Johnston, 334 U.S. 266 (1948).

Technically, federal prisoners no longer utilize the writ of habeas corpus in seeking post–conviction relief, now the largest office of the writ, but proceed under 28 U.S.C. Sec. 2255 , on a motion to vacate judgment. Intimating that if Sec. 2255 afforded prisoners a less adequate remedy than they would have under habeas corpus, it would be unconstitutional, the Court in United States v. Hayman, 342 U.S. 205 (1952), held the two remedies to be equivalent. Cf. Sanders v. United States, 373 U.S. 1. 14 (1963). The claims cognizable fewer than one are cognizable under the other. Kaufman v. United States, 394 U.S. 217 (1969). Therefore, the term habeas corpus is used here to include the Sec. 2255 remedy. There is a plethora of writings about the writ. See, e.g., P. Bator, et al., Hart & Wechsler’s The Federal Courts and the Federal System (Westbury, N.Y.: 3d ed. 1988), Ch. XI, 1465–1597 (hereinafter Hart & Wechsler); Developments in the Law – Federal Habeas Corpus, 83 L. Rev.1038 (1970).

Professor Chafee contended that by the time of the Constitutional Convention the right to habeas corpus was so well established no affirmative authorization was needed. The Most Important Human Right in the Constitution, 32U.L. Rev.143, 146 (1952). But compare Collins, Habeas Corpus for Convicts—Constitutional Right or Legislative Grace? 40 Calif. L. Rev. 335, 344–345 (1952).

233 4 Cr. (8 U.S.) 75 (1807). 234 Id., 94. And see Ex parte Dorr, 3 How. (44 U.S.) 103 (1845). 235 Id., 95. Note that in quoting the clause, Marshall renders “shall not be suspended” as “should not be suspended.” 236 See Ex parte McCardle, 7 Wall. (74 U.S.) 506 (1869). Cf. Carbo v. United States, 364 U.S. 611, 614 (1961).

237 E.g., Eisentrager v. Forrestal, 174 F. 2d 961, 966 (D.C.Cir. 1949), revd. on other grounds sub nom., Johnson v. Eisentrager, 339 U.S. 763 (1950); and see Justice Black’s dissent, id., 791, 798: “Habeas corpus, as an instrument to protect against illegal imprisonment, is written into the Constitution. Its use by courts cannot in my judgment be constitutionally abridged by Executive or by Congress.” And in Jones v. Cunningham, 371 U.S. 236, 238 (1963), the Court said: “The habeas corpus jurisdictional statute implements the constitutional command that the writ of habeas corpus be made available.” (Emphasis supplied). 238 Cf. Ex Parte McCardle, 7 Wall. (74 U.S.) 506 (1869). Ex parte Bollman, 4 Cr. (8 U.S.) 75, 94 (1807). See Fay v. Noia, 372 U.S. 391, 409 (1963). Act of March 2, 1833, Sec. 7, 4 Stat. 634 (federal officials imprisoned for enforcing federal law); Act of August 29, 1842, 5 Stat. 539 (foreign nationals detained by a State in violation of a treaty). See also Bankruptcy Act of April 4, 1800, Sec. 38, 2 Stat. 19, 32 (habeas corpus for imprisoned debtor discharged in bankruptcy), repealed by Act of December 19, 1803, 2 Stat. 248. Act of February 5, 1867, 14 Stat. 385, conveyed power to federal courts “to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States. . . .” On the law with respect to state prisoners prior to this statute, see Ex Parte Dorr, 3 How, (44 U.S.) 103 (1845); cf. Elkison v. Deliesseline, 8. Fed. Cas. 493 (No. 4366) (C.C.D.S.C. 1823) (Justice Johnson); Ex parte Cabrera, 4 Cas.964 (No.2278) (C.C.D.Pa. 1805) (Justice Washington).

28 U.S.C. §§ 2241 (c), 2254(a). “Custody” does not mean one must be confined; a person on parole or probation is in custody. Jones v. Cunningham, 371 U.S. 236 (1963). A person on bail or on his own recognizance is in custody, Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 300–301 (1984); Lefkowitz v. Newsome, 420 U.S. 283, 291 n. 8 (1975); Hensley v. Municipal Court 411 U.S. 345 (1973), and Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1973), held that an inmate of an Alabama prison was sufficiently in custody as well of Kentucky authorities who had lodged a detainer with Alabama to obtain the prisoner upon his release.

McNally v. Hill, 293 U.S. 131 (1934); Parker v. Ellis, 362 U.S. 574 (1960). 244 28 U.S.C. Sec. 2243. See Peyton v. Rowe, 391 U.S. 54 (1968). See also Maleng v. Cook, 490 U.S. 488 (1989).

Carafas v. LaVallee, 391 U.S. 234 (1968), overruling Parker v. Ellis, 362 U.S. 574 (1960). In Peyton v. Rowe, 391 U.S. 54 (1968), the Court overruled McNally v. Hill, 293 U.S. 131 (1934), and held that a prisoner may attack on habeas the second of two consecutive sentences while still serving the first. See also Walker v. Wainwright, 390 U.S. 335 (1968) (prisoner may attack the first of two consecutive sentences although the only effect of a successful attack would be immediate confinement on the second sentence). Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1973), held that one sufficiently in custody of a State could use habeas to challenge the State’s failure to bring him to trial on pending charges.

28 U.S.C. Sec. 2254 (b). See Preiser v. Rodriguez, 411 U.S. 475, 490–497 (1973), and id. 500, 512–524 (Justice Brennan dissenting); Rose v. Lundy, 455 U.S. 509, 515–521 (1982). If a prisoner submits a petition with both exhausted and unexhausted claims, the habeas court must dismiss the entire petition. Rose v. Lundy, supra, 518–519.

Exhaustion first developed in cases brought by persons in state custody prior to any judgment. Ex parte Royall, 117 U.S. 241 (1886); Urquhart v. Brown, 205 U.S. 179 (1907). Brown v. Allen, 344 U.S. 443, 447–450 (1953); id., 502 (Justice Frankfurter concurring); Castille v. Peoples, 489 U.S. 346, 350 (1989). Fay v. Noia, 372 U.S. 391, 435 (1963), overruling Darr v. Burford, 339 U.S. 200 (1950). 28 U.S.C. Sec. 2244 (c). But an affirmance of a conviction by an equally divided Court is not an adjudication on the merits. Neil v. Biggers, 409 U.S. 188 (1972). 28 U.S.C. Sec. 2255. 28 U.S.C. Sec. 2241 (d). Cf. Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1973), overruling Ahrens v. Clark, 335 U.S. 188 (1948), and holding a petitioner may file in the district in which his custodian is located although the prisoner may be located elsewhere.

Glasgow v. Moyer, 225 U.S. 420, 428 (1912); Riddle v. Dyche, 262 U.S. 333, 335 (1923); Eagles v. United States ex rel. Samuels, 329 U.S. 304, 311 (1946). But compare Brown v. Allen, 344 U.S. 443, 558–560 (1953) (Justice Frankfurter dissenting in part). 253 Estelle v. McGuire, 112Ct.475 (1991); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Pulley v. Harris, 465 U.S. 37, 41–42 (1984) 28 U.S.C. Sec. 2244 (b). See Whiteley v. Warden, 401 U.S. 560, 569 (1971); Irvin v. Dowd, 366 U.S. 717, 729 (1961).
Supplement Footnotes
518 U.S. 651 (1996). 8 Pub. L. No. 104–132, Sec. Sec. 101–08, 110 Stat. 1214, 1217–26, amending, inter alia, 28 U.S.C. Sec. Sec. 2244, 2253, 2254, 2255, and Fed. R. App. P. 22.


Section 1. The judicial Power of the United States shall be vested in one supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.


The Constitution is almost completely silent concerning the organization of the federal judiciary. “That there should be a national judiciary was readily accepted by all.” But whether it was to consist of one high court at the apex of a federal judicial system or a high court exercising appellate jurisdiction over state courts that would initially hear all but a minor fraction of cases raising national issues was a matter of considerable controversy. The Virginia Plan provided for a “National judiciary [to] be established to consist of one or more supreme tribunals, and of inferior tribunals to be chosen by the National Legislature. . . .” In the Committee of the Whole, the proposition “that a national judiciary be established” was unanimously adopted, but the clause “to consist of One supreme tribunal, and of one or more inferior tribunals” was first agreed to, then reconsidered, and the provision for inferior tribunals stricken out, it being argued that state courts could adequately adjudicate all necessary matters while the supreme tribunal would protect the national interest and assure uniformity. [p.598]Wilson and Madison thereupon moved to authorize Congress “to appoint inferior tribunals,” which carried the implication that Congress could in its discretion either designate the state courts to hear federal cases or create federal courts. The word “appoint” was adopted and over the course of the Convention changed into phrasing that suggests something of an obligation on Congress to establish inferior federal courts. The “good behavior” clause excited no controversy, while the only substantial dispute with regard to denying Congress the power to intimidate judges through actual or threatened reduction of salaries came on Madison’s motion to bar increases as well as decreases.

One Supreme Court

The Convention left up to Congress decision on the size and composition of the Supreme Court, the time and place for sitting, its internal organization, save for the reference to the Chief Justice in the impeachment provision, and other matters. These details Congress filled up in the Judiciary Act of 1789, one of the seminal statutes of the United States. By the Act, the Court was made to consist of a Chief Justice and five Associate Justices. The number was gradually increased until it reached a total of ten under the act of March 3, 1863. As one of the Reconstruction Congress’ restrictions on President Andrew Johnson, the number was reduced to seven as vacancies should occur.15 The number actually never fell below eight before the end of Johnson’s term, and Congress thereupon made the number nine.

Proposals have been made at various times for an organization of the Court into sections or divisions. No authoritative judicial expression is available, although Chief Justice Hughes in a letter to Senator Wheeler in 1937 expressed doubts concerning the validity of such a device and stated that “the Constitution does not appear to authorize two or more Supreme Courts functioning in effect as separate courts.”

Congress has also determined the time and place of sessions of the Court. It utilized this power once in 1801 to change its terms so that for fourteen months the Court did not convene, so as to forestall a constitutional attack on the repeal of the Judiciary Act of 1801.

Inferior Courts

Congress also acted in the Judiciary Act of 1789 to create inferior courts. Thirteen district courts were constituted to have four sessions annually, and three circuit courts were established to consist jointly of two Supreme Court justices each and one of the district judges of such districts which were to meet twice annually in the various districts comprising the circuit. This system had substantial faults in operation, not the least of which was the burden imposed on the Justices who were required to travel thousands of miles each year under bad conditions. Despite numerous efforts to change this system, it persisted, except for one brief period, until 1891. Since then, the federal judicial system has consisted of district courts with original jurisdiction, intermediate appellate courts, and the Supreme Court. Abolition of Courts.—That Congress “may from time to time ordain and establish” inferior courts would seem to imply that the system may be reoriented from time to time and that Congress is not restricted to the status quo but may expand and contract the units of the system; but if the judges are to have life tenure what is to be done with them when the system is contracted? Unfortunately, the first exercise of the power occurred in a highly politicized situation, and no definite answer emerged. By the Judiciary Act of February 13, 1801, passed in the closing weeks of the Adams Administration, the districts were reorganized, and six circuit courts consisting of three circuit judges each were created.

Adams filled the positions with deserving Federalists, and upon coming to power, the Jeffersonian set in motion plans to repeal the Act, which were carried out. No provision was made for the displaced judges, apparently under the theory that if there were no courts there could be no judges to sit on them. The validity of the repeal was questioned in Stuart v. Laird, where Justice Paterson scarcely noticed the argument in rejecting it.

Not until 1913 did Congress again utilize its power to abolish a federal court, this time the unfortunate Commerce Court, which had disappointed the expectations of most of its friends. But this time Congress provided for the redistribution of the Commerce Court judges among the circuit courts as well as a transfer of its jurisdiction to the district courts.
1 M. Farrand, The Framing of the Constitution of the United States (New Haven: 1913), 79. The most complete account of the Convention’s consideration of the judiciary is J. Goebel, Antecedents and Beginnings to 1801, History of the Supreme Court of the United States, Vol. 1 (New York: 1971), ch. 5. 1 M. Farrand, op. cit., n. 1, 21–22. That this version might not possibly be an accurate copy, see 3 id., 593–594. 1 id., 95, 104. Id., 95, 105. The words “One or more” were deleted the following day without recorded debate. Id., 116, 119.

Madison’s notes use the word “institute” in place of “appoint”, id., 125, but the latter appears in the Convention Journal, id., 118, and in Yates’ notes, id., 127, and when the Convention took up the draft reported by the Committee of the Whole “appoint” is used even in Madison’s notes. 2 id., 38, 45.

On offering their motion, Wilson and Madison “observed that there was a distinction between establishing such tribunals absolutely, and giving a discretion to the Legislature to establish or not establish them.” 1 id., 125. The Committee on Detail provided for the vesting of judicial power in one Supreme Court “and in such inferior Courts as shall, when necessary, from time to time, be constituted by the legislature of the United States.” Its draft also authorized Congress “[t]o constitute tribunals inferior to the Supreme Court.” Id., 182. No debate is recorded when the Convention approved these two clauses, Id. 315, 422–423, 428–430. The Committee on Style left the clause empowering Congress to “constitute” inferior tribunals as was, but it deleted “as shall, when necessary” from the Judiciary article, so that the judicial power was vested “in such inferior courts as Congress may from time to time”—and here deleted “constitute” and substituted the more forceful—“ordain and establish.”

The provision was in the Virginia Plan and was approved throughout, 1 id., 21. Id, 121; 2 id., 44–45, 429–430. Article I, Sec. 3. Act of September 24, 1789, 1 Stat. 73. The authoritative works on the Act and its working and amendments are F. Frankfurter & J. Landis, The Business of the Supreme Court (New York: 1928); Warren, New Light on the History of the Federal Judicial Act of 1789, 37 L. Rev.49 (1923); see also J. Goebel, op. cit., n. 2, ch. 11. Act of September 24, 1789, 1 Stat. 73, Sec. 1. 12 Stat. 794, Sec. 1. Act of July 23, 1866, 14 Stat. 209, Sec. 1. Act of April 10, 1869, 16 Stat. 44. Hearings before the Senate Judiciary Committee on S. 1392, Reorganization of the Judiciary, 75th Congress, 1st sess. (1937), pt. 3, 491. For earlier proposals to have the Court sit in divisions, see F. Frankfurter & J. Landis, op. cit., n. 12, 74–85.1 C. Warren, The Supreme Court in United States History (Boston: rev. ed. 1926), 222–224.

Act of September 24, 1789, 1 Stat. 73, §§ 2–3. Id., 74, §§ 4–5 Cf. F. Frankfurter & J. Landis, op. cit., n. 12, chs. 1–3: J. Goebel. op. cit., n. 2, 554–560, 565–569. Upon receipt of a letter from President Washington soliciting suggestions regarding the judicial system, Writings of George Washington, J. Fitzpatrick ed., (Washington: 1943), 31, Chief Justice Jay prepared a letter for the approval of the other Justices, declining to comment on the policy questions but raising several issues of constitutionality, that the same man should not be appointed to two offices, that the offices were incompatible, and that the act invaded the prerogatives of the President and Senate. 2 G. McRee, Life and Correspondence of James Iredell (New York: 1858), 293– 296. The letter was apparently never forwarded to the President. Writings of Washington, op. cit., 31–32 n. 58. When the constitutional issue was raised in Stuart v. Laird, 1 Cr. (5 U.S.) 299, 309 (1803), it was passed over with the observation that the practice was too established to be questioned.

Act of March 3, 1891, 26 Stat. 826. The temporary relief came in the Act of February 13, 1801, 2 Stat. 89 , which was repealed by the Act of March 8, 1802, 2 Stat. 132 . Act of February 13, 1801, 2 Stat. 89. Act of March 8, 1802, 2 Stat. 132. F. Frankfurter & J. Landis, op. cit., n. 12, 25–32; 1 C. Warren, op. cit., n. 18, 185–215. This was the theory of John Taylor of Caroline, upon whom the Jeffersonians in Congress relied. W. Carpenter, Judicial Tenure in the United States (New Haven: 1918), 63–64. The controversy is recounted fully in id., 58–78. 1 Cr. (5 U.S.) 299 (1803). The Court was created by the Act of June 18, 1910, 36 Stat. 539, and repealed by the Act of October 22, 1913, 38 Stat. 208, 219. See F. Frankfurter & J. Landis, op. cit., n. 12, 153–174; W. Carpenter, op. cit., n. 25, 78–94.