DIRECT COLLATERAL REVIEW - Columbia Law Review

Federal courts are vitally important fora in which to remedy constitutional violations that occur during state criminal proceedings. But critics have long lamented the difficulty of obtaining federal review of these violations. The Supreme Court rarely grants certiorari to review state criminal convictions, including allegations of constitutional defects, on direct appeal. Likewise, the Court has historically declined to grant certiorari to review habeas claims that originate in state courts. And Congress has circumscribed the ability of all federal courts to grant relief on habeas claims made by state prisoners. The dominant scholarly view, therefore, is that systemic constitutional violations are going unremedied and will continue to go unaddressed absent broadscale change.

This Essay argues that an unnoticed change in the Supreme Court’s certiorari practice over the last five years has reopened a previously closed path to remedying these violations. The Supreme Court has a long-stated presumption against taking cases that originate in state collateral proceedings, i.e., state proceedings in which prisoners challenge their convictions or sentences after the convictions have become final. This Essay shows that, although the Court previously hewed to that presumption, things have changed. Beginning in October Term 2015 and continuing to the present, the Court has steadily granted certiorari in these cases, indicating a sub silentio abrogation of the presumption. This Essay documents this changed certiorari practice and explains its significance, both for vindication of constitutional criminal procedure rights and for our understanding of the Supreme Court’s central role in shaping those rights.

The full text of this Essay can be found by clicking the PDF link to the left.

* Columbia Law School, Academic Fellow & Columbia Fellow. I served as a law clerk to Justice Ginsburg during October Term 2015. The views expressed are my own and the discussion is based on only publicly available materials. For generous engagement with this project, I am grateful to Galen Bascom, Tommy Bennett, Niko Bowie, Bridget Fahey, Kellen Funk, Bernard Harcourt, Jeremy Kessler, Lee Kovarsky, Robert Leider, Josh Levy, James Liebman, Gillian Metzger, Henry Monaghan, Trevor Morrison, Andrea Nishi, Eve Brensike Primus, Daniel Richman, Peter Strauss, and participants in the 2019 Junior Federal Courts Workshop and Columbia Associates & Fellows Workshop. I am grateful to Casey Sumner and the diligent editors of the Columbia Law Review.

Introduction

Scholars and criminal justice advocates have long lamented the difficulty of obtaining relief for federal constitutional violations that occur during state criminal proceedings. 1 See, e.g., Nancy J. King & Joseph L. Hoffmann, Habeas for the Twenty-First Century: Uses, Abuses, and the Future of the Great Writ 83–84 (2011) (demonstrating empirically the paltry levels of relief on federal habeas); Lee Kovarsky, Structural Change in State Postconviction Review, 93 Notre Dame L. Rev. 443, 444 (2017) (recognizing that a lack of relief on federal habeas has put state postconviction into the foreground); see also Eve Brensike Primus, Equitable Gateways: Toward Expanded Federal Habeas Corpus Review of State-Court Criminal Convictions, 61 Ariz. L. Rev. 291, 292–93 (2019) [hereinafter Primus, Equitable Gateways] (recognizing low levels of relief in the federal system); Bryan A. Stevenson, The Politics of Fear and Death: Successive Problems in Capital Federal Habeas Corpus Cases, 77 N.Y.U. L. Rev. 699, 731–71 (2002) (describing some of the barriers to relief on federal habeas). The largescale and often systemic violations of federal constitutional rights that occur in the state system are well documented. 2 See, e.g., James S. Liebman, Jeffrey Fagan, Andrew Gelman, Valerie West, Garth Davies & Alexander Kiss, A Broken System, Part II: Why There Is So Much Error in Capital Cases, and What Can Be Done About It 11–14 (2002), http://www2.law.columbia.edu/brokensystem2/report.pdf [https://perma.cc/Y8WL-AL4V] [hereinafter Liebman et al., Broken System, Part II] (documenting the high level of errors in capital cases); Primus, Equitable Gateways, supra note 1, at 292–93 (discussing the substantial evidence of constitutional violations and the large number of wrongful state convictions that have come to light). Yet, despite agreement by reformers that federal courts are better suited to the task of interpreting the United States Constitution and remedying violations of our founding document, it has become difficult for state criminal defendants to obtain review by a federal court. 3 This was the ethos that motivated the Warren Court’s habeas revolution, the expansion of the availability of relief under 42 U.S.C. § 1983, and the concomitant narrowing of abstention doctrines. See Erwin Chemerinsky, Parity Reconsidered: Defining a Role for the Federal Judiciary, 36 UCLA L. Rev. 233, 234 (1988). The merits of the debate concerning parity span a wide spectrum of substantive domains that lie beyond the scope of this Essay. For key perspectives on this debate, compare Burt Neuborne, The Myth of Parity, 90 Harv. L. Rev. 1105, 1105 (1977) (suggesting that parity between state and federal courts is “at best, a dangerous myth”), with Paul M. Bator, The State Courts and Federal Constitutional Litigation, 22 Wm. & Mary L. Rev. 605, 637 (1981) (defending that “state courts will and should continue to play a substantial role in the elaboration of federal constitutional principles”). This Essay concerns criminal procedure rights in particular. Each of the three paths for doing so—the Supreme Court’s certiorari review on direct appeal, the Supreme Court’s certiorari review on a state collateral challenge, and federal district court review on federal habeas—has substantial procedural challenges. 4 See 28 U.S.C. § 1257(a) (2018) (granting Supreme Court jurisdiction over direct appeals from state court judgments); Id. § 2254(a) (providing habeas review over state criminal convictions in federal district courts). Historically, the Supreme Court has rarely granted certiorari to review direct appeals of state criminal convictions or of state collateral challenges (that is, challenges to a conviction that is already “final”). 5 See Jeffrey S. Sutton & Brittany Jones, The Certiorari Process and State Court Decisions, 131 Harv. L. Rev. Forum 167, 170, 176–78 (2018) (presenting statistics that show the Supreme Court disfavors certiorari petitions from state courts overall and arguing this disproportionally affects state criminal defendants). And for a variety of technical, but important reasons that this Essay explores, it is difficult for lower federal courts to address constitutional violations that occur in state proceedings through federal habeas review. 6 See infra section I.A. Indeed, one prominent scholarly work has described federal habeas relief as a “pipe dream.” 7 King & Hoffmann, supra note 1, at 75.

Although many scholars and jurists assume that it has become ever harder to vindicate federal constitutional rights, this Essay shows that, in a series of cases that have escaped public notice, the Supreme Court has opened up a previously limited pathway through which individuals can obtain review. This Essay documents this phenomenon and explores its significance, both for vindicating individual rights and for understanding the Supreme Court’s role in shaping those rights.

Most constitutional criminal procedure violations that occur in state court are not remedied because of complex procedural requirements and legal standards that imprisoned individuals often navigate without counsel. 8 See Primus, Equitable Gateways, supra note 1, at 299 (describing how procedural barriers like the statute of limitations and exhaustion requirement “ensure that most state prisoners’ claims are never considered on the merits in federal court”). Some criminal procedure issues—including ineffective assistance of counsel, the prosecution’s failure to turn over material evidence in violation of Brady v. Maryland, 9 373 U.S. 83, 87 (1963). or the retroactive applicability of new law—are far more likely to be (or must be) brought after a conviction is final. 10 This Essay refers to these issues as “collateral-review issues.” See Massaro v. United States, 538 U.S. 500, 504–05 (2003) (holding ineffective assistance of counsel cases are more appropriately brought on collateral, rather than direct, review); Tiffany R. Murphy, Futility of Exhaustion: Why Brady Claims Should Trump Federal Exhaustion Requirements, 47 U. Mich. J.L. Reform 697, 698 (2014) (noting that Brady claims usually are brought on collateral review); infra notes 174–184 and accompanying text (describing why retroactivity issues must be brought in postconviction proceedings). What is more, it is challenging for imprisoned people to successfully navigate the unique procedural infrastructure that exists when they bring their claim into federal court. When a federal court—whether the U.S. Supreme Court or a lower federal court—sits in review of a state court judgment, it aims to balance the systemic federalism interests of comity to the states, the presumption of regularity within the state system, and the state’s interest in finality, against the individual’s liberty interest. 11 See, e.g., Williams v. Taylor, 529 U.S. 420, 436 (2000) (“Federal habeas corpus principles must inform and shape the historic and still vital relation of mutual respect and common purpose existing between the States and the federal courts. In keeping this delicate balance we have been careful to limit the scope of federal intrusion into state criminal adjudications . . . .”). Due to a confluence of factors, including federal legislation and Supreme Court precedents, the available avenues for relief have narrowed over time.

Procedurally, there are three avenues through which a federal court can review a state criminal conviction. 12 See infra Figure 1 (depicting the stages of a criminal case). First, the Supreme Court can review the case on direct appeal. Second, the Court can review a state collateral challenge in a posture that this Essay terms “direct collateral review”: After the case is final, a prisoner can challenge the conviction collaterally in state court and can appeal those decisions to the Supreme Court. Third, a federal district court can review a state conviction in the federal habeas posture.

Practically, relief is elusive. It is well documented that the Supreme Court rarely grants direct appeals from state criminal cases. 13 See Sutton & Jones, supra note 5, at 169–70 (collecting data on certiorari grants of state cases). Moreover, in 1990, the Court articulated its presumption against granting direct collateral review, 14 See Kyles v. Whitley, 498 U.S. 931, 932 (1990) (Stevens, J., concurring in the denial of petition for certiorari) (“[T]his Court rarely grants review at this stage of the litigation even when the application for state collateral relief is supported by arguably meritorious federal constitutional claims.”). The Supreme Court elevated these words to a fixture of the Court’s doctrine in Lawrence v. Florida, where the majority relied on the fact that the Court rarely grants review in this posture to reason that the time to file a habeas petition would not be tolled while a petition for certiorari was pending on direct collateral review. 549 U.S. 327, 335 (2007). This Essay uses the term “presumption” cognizant of the fact that the Court has never referred to its stated practice as such. Perhaps a more neutral term would be “stated practice.” In the context of granting certiorari and the cert pool, however, a stated practice printed in the U.S. Reports may, in effect, turn into a presumption effectively precluding review without a sufficient rebuttal. observing that “[i]nstead, the Court usually deems federal habeas proceedings to be the more appropriate avenues for consideration of federal constitutional claims.” 15 Kyles, 498 U.S. at 932 (citing Huffman v. Florida, 435 U.S. 1014, 1017–18 (1978) (Stevens, J., respecting denial of petition for certiorari)); see also 1 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure § 6.4(b) & n.4 (7th ed. 2019) (collecting cases). Frustratingly, however, because of the “restraints imposed by the Antiterrorism and Effective Death Penalty Act of 1996” (AEDPA)—the federal habeas statute—robust review is no longer viable in federal habeas proceedings. 16 Dunn v. Madison, 138 S. Ct. 9, 12 (2017) (Ginsburg, J., concurring).

This Essay documents that, over the last five years, the Supreme Court has changed course with respect to one of the vehicles for vindicating constitutional criminal procedure rights: direct collateral review. To do that, this Essay carefully parses the Court’s “shadow docket”—the hundreds of orders, summary reversals, calls for responses, certiorari grants, and orders granting, vacating, and remanding cases, which the Court issues in addition to the ninety or so merits decisions that get most of the attention. Though rarely studied, this docket can reflect changes in Court behavior and viewpoint much more rapidly than the merits docket. 17 See generally William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1 (2015) (identifying the import of the shadow docket and its lack of transparency); Stephen I. Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. 123 (2019) [hereinafter Vladeck, Shadow Docket] (documenting the Solicitor General’s recent practice on the Court’s shadow docket). And in some areas of the law, the shadow docket is even more influential than the merits docket. 18 See, e.g., Stephen I. Vladeck, The Supreme Court’s Most Partisan Decisions Are Flying Under the Radar, Slate (Aug. 11, 2020), https://slate.com/news-and-politics/2020/08/supreme-court-shadow-docket.html [https://perma.cc/8DZP-AGE7] (explaining that developments of the shadow docket during the summer of 2020 include “an unusually large . . . number of significant rulings . . . [that] are quietly shaping the rules of the upcoming elections, how governments . . . respond to COVID, the resumption of the federal death penalty, and more”). An analysis of the shadow docket over the last five years demonstrates that the Court is no longer constrained by its stated practice against review of state collateral proceedings. This Essay thus also makes a methodological contribution, demonstrating that analysis of the Court’s shadow docket is critically important to understanding the Supreme Court’s discretionary interventions and can provide earlier and more accurate pictures of the Court’s work.

Although the Supreme Court originally hewed to its presumption against conducting direct collateral review, granting cases in only the rarest of circumstances, by the 2015 Term, the Court silently reversed course and exhibited the exact opposite preference: a propensity for granting cases from state collateral review as against federal habeas review. In its 2015 Term, the Supreme Court decided five cases originating on state collateral review 19 Williams v. Pennsylvania, 136 S. Ct. 1899, 1903 (2016); Foster v. Chatman, 136 S. Ct. 1737, 1742 (2016); Wearry v. Cain, 136 S. Ct. 1002, 1002 (2016) (per curiam); Montgomery v. Louisiana, 136 S. Ct. 718, 726–27 (2016); Maryland v. Kulbicki, 577 U.S. 1, 3–4 (2015) (per curiam). Five cases are staggering when compared with prior terms, where the Court would generally hear one or zero direct-collateral-review cases. See infra section II.B (tracing direct collateral review before and after AEDPA). —matching the prior five Terms combined 20 See infra Figure 2. —and in its 2016 Term, the Court continued this practice, deciding four cases in this posture. 21 Weaver v. Massachusetts, 137 S. Ct. 1899, 1906–07 (2017); Moore v. Texas, 137 S. Ct. 1039, 1044 (2017); Rippo v. Baker, 137 S. Ct. 905, 906 (2017) (per curiam). The final case, Turner v. United States, originated on collateral review from a criminal proceeding in the District of Columbia. 137 S. Ct. 1885, 1891 (2017). Although the District of Columbia is not a state, this Essay categorizes Turner as a direct-collateral-review case because even the Supreme Court does, on occasion, cite the D.C. Court of Appeals as a state supreme court for these purposes. See, e.g., Garza v. Idaho, 139 S. Ct. 738, 744 n.3 (2019) (citing a D.C. Court of Appeals case for the proposition that “[a]t least two state courts have declined to apply Flores-Ortega in the face of appeal waivers”). In the 2018 Term, the Court decided three cases in this posture, and its shadow docket reflects this change. 22 Garza, 139 S. Ct. at 743; Madison v. Alabama, 139 S. Ct. 718, 726 (2019); Moore v. Texas, 139 S. Ct. 666, 667 (2019). In 2019, the Court heard two direct-collateral-review cases on its plenary docket, 23 McGirt v. Oklahoma, 140 S. Ct. 2452, 2459 (2020); McKinney v. Arizona, 140 S. Ct. 702, 706 (2020). resolved another in summary fashion, 24 Andrus v. Texas, 140 S. Ct. 1875, 1878 (2020). and granted one for its 2020 term. 25 Jones v. Mississippi, 140 S. Ct. 1293, 1293 (2020) (mem.) (granting certiorari). To Court watchers, even consistently granting one or two cases of a single type is interesting, but granting so many cases of a variety the Court has stated a preference against is unheard of.

Nestled between direct review and federal habeas review at the Supreme Court is direct collateral review. Although it may sound like a contradiction in terms, it precisely explains what the Court does in this posture: It directly reviews a state collateral proceeding. 26 It is a particularly apt time to begin the discussion of direct collateral review. In one of its most recent direct-collateral-review cases, McKinney, 140 S. Ct. 702, the Court was presented with the peculiarity of this posture head on. As Justice Ginsburg wrote in her dissent, the Court was faced with “the pivotal question: Is McKinney’s case currently on direct review . . . or on collateral review . . . ?” Id. at 710 (Ginsburg, J., dissenting). Like direct review, the Court’s basis for jurisdiction on direct collateral review is 28 U.S.C. § 1257. 27 See 28 U.S.C. § 1257(a) (2018) (granting jurisdiction over “[f]inal judgments . . . rendered by the highest court of a State”). But unlike direct review, direct collateral review introduces many of the complexities commonly associated with the federal habeas posture. It is a posture in which federal supremacy, state sovereign authority, and individual liberties converge. 28 For a sampling of the debate over these values, compare Sanders v. United States, 373 U.S. 1, 8 (1963) (“Conventional notions of finality of litigation have no place where life or liberty is at stake and infringement of constitutional rights is alleged.”), Fay v. Noia, 372 U.S. 391, 401–02 (1963) (“Although in form the Great Writ is simply a mode of procedure, its history is inextricably intertwined with the growth of fundamental rights of personal liberty. For its function has been to provide a prompt and efficacious remedy for whatever society deems to be intolerable restraints.”), and Barry Friedman, Failed Enterprise: The Supreme Court’s Habeas Reform, 83 Calif. L. Rev. 485, 488 (1995) (“[H]abeas clearly has something to do with [fairness] matters such as vindicating constitutional rights . . . .”), with Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 524 (1963) (resisting “the notion that sound remedial institutions can be built on the premise that state judges are not in sympathy with federal law”), Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 142 (1970) (“My thesis is that, with a few important exceptions, convictions should be subject to collateral attack only when the prisoner supplements his constitutional plea with a colorable claim of innocence.”), John J. Parker, Limiting the Abuse of Habeas Corpus, 8 F.R.D. 171, 171 (1948) (finding “abuse[s]” in federal habeas proceedings after they “opened wide the door to review . . . of every criminal proceeding, state or federal, in which a person convicted of crime was willing to make oath that he had been denied a fair trial”), and Frank W. Wilson, Federal Habeas Corpus and the State Court Criminal Defendant, 19 Vand. L. Rev. 741, 741–42 (1966) (noting that “[e]ven before the era of Brown v. Board of Education, Mapp v. Ohio, Gideon v. Wainwright, and Escobedo v. Illinois, federal habeas corpus for state court prisoners was greatly agitating the more emotional critics of federal authority” (footnotes omitted)). For one additional perspective, see Rose v. Mitchell, 443 U.S. 545, 585 (1979) (Powell, J., concurring in the judgment) (“This Court repeatedly has recognized that criminal law is primarily the business of the States, and that absent the most extraordinary circumstances the federal courts should not interfere with the States’ administration of that law.” (citing Perez v. Ledesma, 401 U.S. 82 (1971); Younger v. Harris, 401 U.S. 37 (1971))). It is a posture in which the Supreme Court has to choose between the state interest in finality and the individual’s liberty interest. It is a posture free from the procedural strictures of AEDPA, but that still navigates the difficult terrain between the state interest in finality and the federal interest in supremacy. It is this duality that creates real opportunities for criminal justice reform and real challenges to the Court’s jurisdiction. Procedure—and procedural posture—affects the development of substantive rights. By revealing this path, this Essay calls for scholars to think more critically about how the peculiarities of this procedural posture will affect the substantive development of criminal procedure rights. 29 For analysis of how the presumption against retroactivity articulated in Teague v. Lane, 489 U.S. 288, 292 (1988), changed the substantive development of the law, see Linda Meyer, “Nothing We Say Matters”: Teague and New Rules, 61 U. Chi. L. Rev. 423, 455–59 (1994). This Essay thus sets out an analytical research agenda and starts the dialogue of critical issues that the Supreme Court must mediate to further develop criminal procedure doctrines.

Part I situates direct collateral review in the current dialogue and chronicles its emergence as a fixture of the Court’s docket. Part II, the heart of this Essay, offers a legal theory and normative defense for direct collateral review’s emergence. The current ecosystem of collateral review—primarily Congress’s passage of AEDPA and the Executive’s centralized control over federal criminal cases—has created the need for the Court to engage in direct collateral review in order to continue doctrinal development of issues likely to come up on collateral review. Accordingly, Part II shows that direct collateral review is the legal channel for developing constitutional law pertaining to criminal defendants’ rights, including retroactivity and mixed questions of law and fact such as ineffective assistance of counsel and failure to turn over material evidence under Brady. Part III then predicts and explores some of the challenges that direct collateral review will have to evolve to meet in the future.