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THE WHITE HOUSE
WASHINGTON

May 5, 1995
MEMORANDUM FOR ABNER J. MIKVA
JAMES CASTELLO
FROM:

CHRIS CERF

SUBJECT:

Proposed Habeas Legislation

<L.

At least four versions of habeas reform legislation are
currently making their way through Congress: (1) S.735
("Hatch/Dole") was introduced last Friday as part of the
"Comprehensive Terrorist Act of 1995; (2) H.R. 729 began life as
part of the "Contract's" omnibus crime legislation, but was
passed by the House as a separate bill; (3) S.3 is the Senate
version of an omnibus crime bill and contains perhaps the most
radical habeas reform provisions, i.e., a federal court must
defer to a state ruling if the defendant had a "full and fair"
hearing on the issue; and (4) Title III of S.1607 (the "Biden
bill"), was introduced in the
Congress, and is frequently
cited by the Administration as reflecting its preferred approach.
While this memo focuses on the Hatch/Dole bill, some
familiarity with the other bills may be useful in evaluating our
legislative options.
I. Overview of Proposed Habeas Legislation
A. Hatch/Dole
Although it would effect a dramatic reorientation and
curtailment of habeas, the Hatch/Dole bill is in some respects
less radical than the other Republican alternatives. Its key
provisions are as follows:

* Imposes a one-year period for filing habeas petition, with
the period running from the latest of (a) the conclusion of
direct review, (b) the date on.which the constitutional
right was recognized by the Supreme Court "and made
retroactively applicable," or (c) the date on which the
factual predicate of the claim could have been discovered.
(The one-year period is tolled during the pendency of any
state collateral review proceeding.)

* Permits appeals of District Court decisions denying a writ
only upon the issuance of a "Certificate of Appealability"

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Such a certificate may only issue if the applicant has made
a "substantial showing of a denial of a constitutional
right." (Under current law, an appeal can be taken if the
appropriate judge issues a "certificate· of probable cause. ")

* Tightens· up exhaustion requirements,
by providing
that states shall not be found to have waived exhaustion
absent an eXpress waiver; also permits courts to deny writ
on ,the merits notwithstanding failure to exhaust.
.
* Authorizes issuance of writ in § 2254 cases only if state
decision "was contrary to or involved an unreasonable
, application of clearly established Federal law, as
determined by the Supreme Court of the United states" or
"resulted in an unreasonable interpretation of factsn
presented in state court. This is another approach to the
deference notion that has been kicking around since stone v.
Powell. While it is different from the "full and fair
adjudication" rule, it is intended to encourage deference to
state decisionmaking in close cases. It represents a very
significant inc.ursion into traditional habeas law in at
. least three ways:
1) Most importantly, it would appear to require
sUbstantial deference in the case of so-called nmixed
questions" -- issues that turn on the .application of
,law to fact. The Supreme Court has long held that such
'mixed questions warrant de novo review on habeas. See
Miller v. Fenton. Justice Thomas, joined only by the
Chief Justice and Justice scalia, attempted to overrule
this principle in Wright v. West, prompting an
unusually stinging'response from (remarkably) Justice
O'Connor joined (more predictably) by Justice's Stevens
and Blackmun. (Justice Kennedy also rejected Thomas's
reasoning. ) .
2) The meaning of "clearly established" is murky at
best, as evidenced by qualified immunity law from which
this language seems to have been borrowed •
. 3) It is also significant that the federal rule must
have been announced by the Supreme Court. As you know,
many significant and often uncontroversial
constitutional rulings are made a,t the Court of Appeals
level and never,reGeive Supreme Court attention.

* Substantially increases federal deference to state court
findings of fact. Under current law, the "presumption of
correctness" can be rebutted, inter alia, upon a showing
that the predicate facts were not adequately developed in
state court or the district court independently concludes
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that the factual determination was not "fairly supported by .
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the record." Moreover, the presumption only applies to
findings made ·"after a hearing." Under the proposed change,
the presumption of correctness always applies -- whether or
not there was a hearing -- unless the applicant rebuts it by
clear and convincing evidence. Since, as the following
paragraph explains, he would virtually never be entitled to
a hearing, as a practical matter a habeas applicant could
never carry this burden.
.

* Significantly curtails. power of federal court to conduct
evidentiary hearing. If the. applicant failed to develop
factual basis of the claim in state court, he is only
entitled to a federal evidentiary hearing in limited
circumstances,
the factual predicate of the claim
could not previously have been discovered and the facts'
underlying the claim establish "by clear and convincing
.evidence that but for constitutional error no reasonable
factfinder would have found the applicant guilty of the
underlying offense."
Under current law, a prisoner who fails to develop a
factual claim in state court is entitled to a federal
habeas hearing only if he can meet the same "cause and
prejudice" standard that applies in the case of failure
to raise a legal claim in prior state proceedings.
Keeney v. Tamayo-Reyes (overruling Townsend v. Sain's
adoption of "deliberate bypass" test in this context).
Keeney was another 5-4 decision that also prompted a
stinging O'Connor dissent.
This provision in the Hatch/Dole bill does more than
merely codify Keeney.
Both prongs of the test it
articulates appear to be .even more stringent than the
already highly restrictive "cause" and "prejudice"
standard.
For all practical purposes, the adoption of
this provision -- in conjunction with the "presumption
of correctness" provision
would eliminate federal
habeas hearings.

* Tacitly, but unquestionably; repeals 21 U.S.C. §848(q),
which requires the appointment of counsel in any capital
case brought under either §2254 and§2255.

* Imposes significant new limits on the 'ability to pursue a
·second or' successive petition. Under current'law, a court
must hear a successive petition unless it determines that
the applicant has deliberately "withheld the newly asserted
ground" from his/her previous filing. Under the proposed .
law, a new claim must be dismissed unless (a) ,the applicant
relies on a new and retroactively applicable rule Qf law or
(b) the factual predicate for the
could not have been
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known and, if proven, would establish by clear and
convincing evidence that he is actually innocent of the
charges. Even then, a second or successive petition may not
be entertained by the district court unless the applicable
Court of Appeals concludes· that the applicant. has made a
prima facie showing under this standard.

*

Creates special procedures applicable to capital cases:
- state may have benefit of these procedures only if it
establishes a "mechanism" for.the
appointment
and compensation of "competent" counsel in state postconviction proceedings. (Note the absence of a similar
requirement for direct appeals or competency standards
for defense counsel at trial)
.
- Upon appointment of counsel pursuant to above
provision, applicant gets automatic stay of execution
pending timely filing and resolution of § 2254
petition. (stay can be lifted if applicant fails to
make a "substantial showing of the denial of a federal
right.")
- No further
of execution will be granted unless
Court of Appeals approves filing of second or
'successive petition.
- §< 2254 petition must be filed within 180 days of
affirmance of conviction on direct appeal, such period
being tolled during pendency of cert petition (from
direct appeal) or state post-conviction proceeding.
(Note: period does not toll during pendency of cert
petition from. state post-conviction proceeding.)

- Limits federal habeas review to claims that "were
raised and decided". in prior state proceedings unless
based on subsequently discovered evidenc:e or "Supreme
Court recognition of a new Federal right."
- Obligates federal courts to "give priority" to
capital cases and to adjudicate habeas claims on an
accelerated schedule.
district courts must rule
on all habeas petiti9ns within 180 days of filing aQd
Courts of Appeals must rule within 120 days after
filing of last brief.
(A district court'sfaiiure to
adhere to the 180 rule is subject to mandamus, which
petition must be resolved by the Court of Appeals
within 30 days.)

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 B. S.3 (Part of Senate Omnibus Crime Bill)
S.3 is substantially identical to Hatch/Dole, with one
important exception. Incorporating the approach of Stone v.
Powell, S.3 provides:
"An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that has been
fully and fairly adjudicated in state proceedings."
In contrast, the standard for leave to file an appeal from the
denial of a habeas petition is slightly easier to meet in all
cases· and need not be met at all in capital cases.
C. 'HeR. 729 (Part of "Contract" Crime
In most important details, H.R. 729 is similar to both the'
Hatch/Dole bill and
Its approach to "deference," however,
is closer to that of Hatch/Pole. Carefully avoiding the red flag
of a "full and fair" standard,it nonetheless forbids district
courts from granting a writ unless (a) the state court's decision
was based on an
or unreasonable interpretation of
clearly established Federal law, (b) resulted in a decision that
was based on an arbitrary or unreasonable application 6f facts to
clearly established Federal law, or (c) resulted in a decision
that was based on an arbitrary or unreasonable finding'of fact.
D. The Biden Bill (S.1607).
Like the various Republican bills, the Biden bill
incorporates numerous effi9iency enhancing mechanisms, such as
filing deadlines (180 days), limits on successive petitions, etc.
In general, liowever,' these mechanisms are less restrictive than
their Republican
For example, a court may permit
the filing of an out-of-time petition if it concludes that the
applicant had adduced new evidence sufficient to "undermine that
court's confidence ,in the factfinder's determination of guilt."
(Indeed, the bill specifically provides (contrary to Herrara)
that claims of factual innocence are cognizable on habeas and are
not subject to the otherwise.applicable rules governing
successive petitions.) In addition, the bill provides that in
capital cases an unsuccessful petitioner may file an appeal
without the need to obtain a certificate of probable cause.
In addition to these relatively minor distinct'ions,· there
are three important differences between the Biden biil and the
Republican bills described above:
First', the Biden biil provides in unambiguous terms that
(with the sole exception of Fourth Amendment claims).' "federal
courts shall review de novo the rUlings of state courts on
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matters of federal law regardless of whether the opportunity for
a full and fair hearing has been provided in the state court."
Second, the bill prescribes in painfully elaborate detail
mandatory competency standards for counsel in all phases of a
capital case, including trial, appeal, state post-conviction
review, and cert petitions. After "finding" that inadequate
representation in capital cases'''increases unacceptably the risk
of constitutional and factual error," the bill invokes
Congress's power under Section 5 of the Fourteenth Amendment.
Thus armed, the bill:

* Requires states to establish a "counsel certification
authority" within 180 days and creates a private cause of
action to enforce any failure to do so.
* Requires this entity to maintain a roster of individuals
who meet specified "minimum counsel standards."· For
example, to be certified as trial counsel the individual
must have two of the four qualifications set out in subpart
.A
12 jury, including five criminal, trials in the
past 10 years) and one of the qualifications set out in
subpart B
co-counsel in no fewer than two capital
cases, one of which occurred in the past five years, that
were tried through sentencing.)

* Requires courts to appoint at least two attorneys from the
roster at trial, and one at every subsequent stage.
* Provides that in a capital case in,which the state fails
to follow these procedures, a federal habeas court "shall
not" (a) presume state court findings to be correct or (b)
refuse to consider a claim on the ground that it was not
raised previously. In addition, the 180 day limitations
period for filing a first federal habeas petition is tolled
until the state appoints qualified counsel under these

* Authorizes grants to fund these procedures. (Funding to
states would be equal to federal funding to Capital Resource
Centers. )
Third, the 180 day filing deadline does not apply in both
capital and non-capital cases unless the state provides counsel
during state post-conviction proceedings.
II. Prior statements of

on Habeas

To date, the administration's position has been to endorse
the broad "objectives" 'of the various Republican bills, while
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stating a strong preference for the particular approach taken in
the Biden bill.
In particular, the administration favors:

* Making the strict filing deadline conditional on
appointment of counsel in state post-conviction proceedings
(for both capital and non-capital cases.)
* Requiring states to appoint counsel meeting minimum
competency standards in all phases of a capital case.
other than the counsel-related provisions, the
administration has spoken only in broad generalities. Thus,
while generally endorsing an approach in which defendants have
only "one bite at the apple," the administration has not taken a
direct position on the degree of deference federal courts should
afford prior state proceedings.
Nor has the administration
addressed the merits of the significant curtailment of the right
to a plenary habeas hearing that would be effected by the
Republican bills.

xxx.

Legislative options

There are three basic options:
option 1: Work aggressively to unbundle habeas from the
counterterrorism bill and deal with it instead in the context of
the omnibus crime bill. One variant of this is to unbundle
habeas from counterterrorism, but agree to modifications to §2255
the theory being that the Oklahoma terrorists (and all
terrorists) would be tried in federal rather than state cour.t.
option 2: Agree to bundle habeas with counterterrorism
provided that the Republicans retreat from their bill and accept
a variant of the Biden bill.
Option 3: Agree to endorse HatchlDole with fc;>ur
modifications:
1) Delete of the section 704(d), which adopts the Wright v.
West standard of review.
2) Delete or modify Section 704(e) (2), which covers the
availability of a plenary evidentiary hearing.
3) Delete Section 704(f), which effectively repeals the
existing statutory entitlement to counsel in federal habeas
proceedings arising out of a capital case.
4)' Add a section that would condition these new procedures
on an
mechanism for assuring competent counsel
at all phases of a capital case •. This mechanism would

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endorse the spirit of the Biden bill, but not its extraordinarily
elaborate detail.

IV. Analysis
If achievable, the preferred outcome is Option 3. If
Senator Hatch is prepared to adjust his bill as indicated, this
would have the effect of (a) resolving the contentious habeasreform issue in a matter that appears closest to the President's
position; (b) result, on balance, in a meaningful improvement in
habeas law by making it both swifter (because of the filing
deadlines) and fairer (because it would assure competent counsel
during all phases of a capital cases); (c) avoid the risk of an
even worse habeas bill down the road
"full and fairlt) and
(d) unbundle habeas from the crime bill, which may well have the
effect of taking the steam out of the Republican effort in this
area. The pitch toSenator Hatch would be: "We're giving you
90% of what you are asking for. Make these relatively modest
concessions, and we'll give up on the Biden bill. and resolve this
divisive isstie once and for
If, however, Hatch is unwilling to accept these
modifications -- especially those mandating competent counsel -we should fall back on Option 1. This, however, is far from an
optimal o.utcome. My sense from talking to both Justice and
legislative affairs is that the habeas train is coming down the
track and is unstoppable -- especially after the President's
comments on Sixty Minutes. We do not want to put the President
in the position of having to accept highly objectionable habeas
provisions merely because they are tied to the counterterrorism
bill.
Thus, if would be far better to get Hatch to agree to
modify his bill than to fight for -- and fail to achieve -- a
complete unbundling of habeas from the counterterrorism bill.
Nor am I.at all persuaded that an agreement to modify only
§2255 wouldhaveany·significant effect.
Hatch would rightly
see this as a transparent ploy since there is relatively little
in §2255 law that needs fixing. Moreover, he would surely insist
on all of the "bad" provisions in the context of § 2255 petitions
that we would want to resist in the state context down the road.
We would have no prospect.of winning that important fight if we
have already given up the store under §2255.
Option 2 warrants only brief comment. Everyone,
Senator Biden (I'm told) considers the Biden bill dead on
arrival. While we should try to salvage its most important
dimension -- counsel competency standards in capital cases -- we
should not put our money on an·otherwise losing proposition.

V. Conclusion

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I recommend Option 3 as set out above.·