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Conflicts of Jurisdiction; Federal Court Interference with State Courts

Conflicts of Jurisdiction; Federal Court Interference with State Courts

One challenging the constitutionality, under the United States Constitution, of state actions, statutory or otherwise, could, of course, bring suit in state court; indeed, in the time before conferral of federal-question jurisdiction on lower federal courts plaintiffs had to bring actions in state courts, and on some occasions now, this has been done.1235 But the usual course is to sue in federal court for either an injunction or a declaratory judgment or both. In an era in which landmark decisions of the Supreme Court and of inferior federal courts have been handed down voiding racial segregation requirements, legislative apportionment and congressional districting, abortion regulations, and many other state laws and policies, it is difficult to imagine a situation in which it might be impossible to obtain such rulings because no one required as a defendant could be sued. Yet, the adoption of the Eleventh Amendment in 1798 resulted in the immunity of the State,1236 and the immunity of state officers if the action upon which they were being sued was state action,1237 from suit without the State’s consent. Ex parte Young1238 is a seminal case in American constitutional law because it created a fiction by which the validity of state statutes and other actions could be challenged by suits against state officers as individuals.1239

1229 456 U.S. 468-76. There were four dissents. Id. at 486 (Justices Blackmun, Brennan, and Marshall), 508 (Stevens).

1230 209 U.S. 123 (1908).

1231 36 Stat. 557 (1910). The statute was amended in 1925 to apply to requests for permanent injunctions, 43 Stat. 936, and again in 1937 to apply to constitutional attacks on federal statutes. 50 Stat. 752.

1232 Swift & Co. v. Wickham, 382 U.S. 111, 119 (1965); Ex parte Collins, 277 U.S. 565, 567 (1928).

1233 These now are primarily limited to suits under the Voting Rights Act, 42 U.S.C. §§ 1973b(a), 1973c, 1973h(c), and to certain suits by the Attorney General under public accommodations and equal employment provisions of the 1964 Civil Rights Act. 42 U.S.C. §§ 2000a-5(b), 2000e-6(b).

1234 Pub. L. 94-381, 90 Stat. 1119, 28 U.S.C. § 2284. In actions still required to be heard by three-judge courts, direct appeals are still available to the Supreme Court. 28 U.S.C. § 1253.

1235 For example, one of the cases decided in Brown v. Board of Education, 347 U.S. 483 (1954), came from the Supreme Court of Delaware. In Scott v. Germano, 381 U.S. 407 (1965), the Court set aside an order of the district court refusing to defer to the state court which was hearing an apportionment suit and said: “The power of the judiciary of a State to require valid reapportionment or to formulate a valid redistricting plan has not only been recognized by this Court but appropriate action by the States has been specifically encouraged.” See also Scranton v. Drew, 379 U.S. 40 (1964).

1236 By its terms, the Eleventh Amendment bars only suits against a State by citizens of other States, but in Hans v. Louisiana, 134 U.S. 1 (1890), the Court deemed it to embody principles of sovereign immunity which applied to unconsented suits by its own citizens.

1237 In re Ayers, 123 U.S. 443 (1887).

1238 209 U.S. 123 (1908).

1239 The fiction is that while the official is a state actor for purposes of suit against him, the claim that his action is unconstitutional removes the imprimatur of the State that would shield him under the Eleventh Amendment. 209 U.S. at 159-60.

Conflict between federal and state courts is inevitable when the federal courts are open to persons complaining about unconstitutional or unlawful state action which could as well be brought in the state courts and perhaps is so brought by other persons, but the various rules of restraint flowing from the concept of comity reduce federal interference here some considerable degree. It is rather in three fairly well defined areas that institutional conflict is most pronounced.

Federal Restraint of State Courts by Injunctions.—Even where the federal anti-injunction law is inapplicable, or where the question of application is not reached,1240 those seeking to enjoin state court proceedings must overcome substantial prudential barriers, among them the abstention doctrine1241 and more important than that the equity doctrine that suits in equity are to be withheld “in any case where plain, adequate and complete remedy may be had at law.”1242 The application of this latter principle has been most pronounced in the reluctance of federal courts to interfere with a State’s good faith enforcement of its criminal law. Here, the Court has required of a litigant seeking to bar threatened state prosecution not only a showing of irreparable injury which is both great and immediate but an inability to defend his constitutional right in the state proceeding. Certain types of injury, such as the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, are insufficient to be considered irrep-arable in this sense. Even if a state criminal statute is unconstitutional, a person charged under it usually has an adequate remedy at law by raising his constitutional defense in the state trial.1243 The policy has never been stated as an absolute, recognizing that in exceptional and limited circumstances, such as the existence of factors making it impossible for a litigant to protect his federal constitutional rights through a defense of the state criminal charges or the bringing of multiple criminal charges, a federal court injunction could properly issue.1244

1240 28 U.S.C. § 2283 may be inapplicable because no state court proceeding is pending or because the action is brought under 42 U.S.C. § 1983. Its application may never be reached because a court may decide that equitable principles do not justify injunctive relief. Younger v. Harris, 401 U.S. 37, 54 (1971).

1241 Supra, “Abstention”.

1242 The quoted phrase setting out the general principle is from the Judiciary Act of 1789, § 16, 1 Stat. 82.

1243 The older cases are Fenner v. Boykin, 271 U.S. 240 (1926); Spielman Motor Sales Co. v. Dodge, 295 U.S. 89 (1935); Beal v. Missouri Pac. R.R., 312 U.S. 45 (1941); Watson v. Buck, 313 U.S. 387 (1941); Williams v. Miller, 317 U.S. 599 (1942); Douglas v. City of Jeannette, 319 U.S. 157 (1943). There is a stricter rule against federal restraint of the use of evidence in state criminal trials. Stefanelli v. Minard, 342 U.S. 117 (1951); Pugach v. Dollinger, 365 U.S. 458 (1961). The Court reaffirmed the rule in Perez v. Ledesma, 401 U.S. 82 (1971). State officers may not be enjoined from testifying or using evidence gathered in violation of federal constitutional restrictions, Cleary v. Bolger, 371 U.S. 392 (1963), but the rule is unclear with regard to federal officers and state trials. Compare Rea v. United States, 350 U.S. 214 (1956), with Wilson v. Schnettler, 365 U.S. 381 (1961).

1244 E.g., Douglas v. City of Jeannette, 319 U.S. 157, 163-164 (1943); Stefanelli v. Minard, 342 U.S. 117, 122 (1951). See also Terrace v. Thompson, 263 U.S. 197, 214 (1923), Future criminal proceedings were sometimes enjoined. E.g., Hague v. CIO, 307 U.S. 496 (1939).

In Dombrowski v. Pfister,1245 the Court appeared to change the policy somewhat. The case on its face contained allegations and offers of proof that may have been sufficient alone to establish the “irreparable injury” justifying federal injunctive relief.1246 But the formulation of standards by Justice Brennan for the majority placed great emphasis upon the fact that the state criminal statute in issue regulated expression. Any criminal prosecution under a statute regulating expression might of itself inhibit the exercise of First Amendment rights, it was said, and prosecution under an overbroad1247 statute like the one in this case might critically impair exercise of those rights. The mere threat of prosecution under such an overbroad statute “may deter . . . almost as potently as the actual application of sanctions.”

1245 380 U.S. 479 (1965). Grand jury indictments had been returned after the district court had dissolved a preliminary injunction, erroneously in the Supreme Court’s view, so that it took the view that no state proceedings were pending as of the appropriate time. For a detailed analysis of the case, see Fiss, Dombrowski, 86 YALE L. J. 1103 (1977).

1246 “[T]he allegations in this complaint depict a situation in which defense of the State’s criminal prosecution will not assure adequate vindication of constitutional rights. They suggest that a substantial loss of or impairment of freedoms of expression will occur if appellants must await the state court’s disposition and ultimate review in this Court of any adverse determination. These allegations, if true, clearly show irreparable injury.” 380 U.S. at 485-86.

1247 That is, a statute which reaches both protected and unprotected expression and conduct.

In such cases, courts could no longer embrace the assumption that defense of the criminal prosecution “will generally assure ample vindication of constitutional rights,” because either the mere threat of prosecution or the long wait between prosecution and final vindication could result in a “chilling effect” upon First Amendment rights.1248 The principle apparently established by the Court was two-phased: a federal court should not abstain when there is a facially unconstitutional statute infringing upon speech and application of that statute discourages protected activities, and the court should further enjoin the state proceedings when there is prosecution or threat of prosecution under an overbroad statute regulating expression if the prosecution or threat of prosecution chills the exercise of freedom of expression.1249 These formulations were reaffirmed in Zwickler v. Koota,1250 in which a declaratory judgment was sought with regard to a statute prohibiting anonymous election literature. Abstention was deemed improper,1251 and further it was held that adjudication for purposes of declaratory judgment is not hemmed in by considerations attendant upon injunctive relief.1252

The aftermath of the Dombrowski and Zwickler decisions was a considerable expansion of federal-court adjudication of constitutional attack through requests for injunctive and declaratory relief, which gradually spread out from First Amendment areas to other constitutionally-protected activities.1253 However, these developments were highly controversial and after three arguments on the issue, the Court in a series of cases receded from its position and circumscribed the discretion of the lower federal courts to a considerable and ever-broadening degree.1254 The important difference between this series of cases and the Dombrowski-Zwickler line was that in the latter there were no prosecutions pending whereas in the former there were. Nevertheless, the care with which Justice Black for the majority undertook to distinguish and limit Dombrowski signified a limitation of its doctrine, which proved partially true in later cases.

1248 380 U.S. at 486-87.

1249 See Cameron v. Johnson, 381 U.S. 741 (1965); Cameron v. Johnson, 390 U.S. 611 (1968).

1250 389 U.S. 241 (1967). The state criminal conviction had been reversed by a state court on state law grounds and no new charge had been instituted.

1251 It was clear that the statute could not be construed by a state court to render a federal constitutional decision unnecessary. 389 U.S. at 248-52.

1252 389 U.S. at 254.

1253 Maraist, Federal Injunctive Relief Against State Court Proceedings: The Significance of Dombrowski, 48 TEX. L. REV. 535 (1970).

1254 Younger v. Harris, 401 U.S. 37 (1971); Samuels v. Mackell, 401 U.S. 66 (1971); Boyle v. Landry, 401 U.S. 77 (1971); Perez v. Ledesma, 401 U.S. 82 (1971); Dyson v. Stein, 401 U.S. 200 (1971); Byrne v. Karalexis, 401 U.S. 216 (1971).

Justice Black reviewed and reaffirmed the traditional rule of reluctance to interfere with state court proceedings except in extraordinary circumstances. The holding in Dombrowski, as distinguished from some of the language, did not change the general rule, because extraordinary circumstances had existed. Thus, Justice Black, with considerable support from the other Justices,1255 went on to affirm that where a criminal proceeding is already pending in a state court, if it is a single prosecution about which there is no allegation that it was brought in bad faith or that it was one of a series of repeated prosecutions which would be brought, and the defendant may put in issue his federal-constitutional defense at the trial, federal injunctive relief is improper, even if it is alleged that the statute on which the prosecution was based regulated expression and was overbroad.

Many statutes regulating expression were valid and some overbroad statutes could be validly applied and attacks on facial unconstitutionality abstracted from concrete factual situations was not a sound judicial method. “It is sufficient for purposes of the present case to hold, as we do, that the possible unconstitutionality of a statute ‘on its face’ does not in itself justify an injunction against good faith attempts to enforce it, and that appellee Harris has failed to make any showing of bad faith, harassment, or any other unusual circumstances that would call for equitable relief.”1256

1255 Only Justice Douglas dissented. 401 U.S. at 58. Justices Brennan, White, and Marshall generally concurred in somewhat restrained fashion. Id. at 56, 75, 93.

1256 401 U.S. at 54. On bad faith enforcement, see id. at 56 (Justices Stewart and Harlan concurring); 97 (Justices Brennan, White, and Marshall concurring in part and dissenting in part). For an example, see Universal Amusement Co. v. Vance, 559 F. 2d 1286, 1293-1301 (5th Cir. 1977), affd. per curiam sub nom., Dexter v. Butler, 587 F. 2d 176 (5th Cir.) (en banc), cert. denied, 442 U.S. 929 (1979).

The reason for the principle, said Justice Black, flows from “Our Federalism,” which requires federal courts to defer to state courts when there are proceedings pending in them.1257

Moreover, in a companion case, the Court held that when prosecutions are pending in state court, ordinarily the propriety of injunctive and declaratory relief should be judged by the same standards.1258 A declaratory judgment is as likely to interfere with state proceedings as an injunction, whether the federal decision be treated as res judicata or whether it is viewed as a strong precedent guiding the state court. Additionally, “the Declaratory Judgment Act provides that after a declaratory judgment is issued the district court may enforce it by granting ‘further necessary or proper relief’ and therefore a declaratory judgment issued while state proceedings are pending might serve as the basis for a subsequent injunction against those proceedings to ‘protect or effectuate’ the declaratory judgment, 28 U.S.C. § 2283, and thus result in a clearly improper interference with the state proceedings.”1259

When, however, there is no pending state prosecution, the Court is clear, “Our Federalism” is not offended if a plaintiff in a federal court is able to demonstrate a genuine threat of enforcement of a disputed criminal statute, whether the statute is attacked on its face or as applied, and becomes entitled to a federal declaratory judgment.1260 And, in fact, when no state prosecution is pending, a federal plaintiff need not demonstrate the existence of the Younger factors to justify the issuance of a preliminary or permanent injunction against prosecution under a disputed state statute.1261

1257 401 U.S. at 44.

1258 Samuels v. Mackell, 401 U.S. 66 (1971). The holding was in line with Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293 (1943).

1259 Samuels v. Mackell, 401 U.S. 66, 72 (1971).

1260 Steffel v. Thompson, 415 U.S. 452 (1974).

1261 Doran v. Salem Inn, 422 U.S. 922 (1975) (preliminary injunction may issue to preserve status quo while court considers whether to grant declaratory relief); Wooley v. Maynard, 430 U.S. 705 (1977) (when declaratory relief is given, permanent injunction may be issued if necessary to protect constitutional rights). However, it may not be easy to discern when state proceedings will be deemed to have been instituted prior to the federal proceeding. E.g., Hicks v. Miranda, 422 U.S. 332 (1975); Huffman v. Pursue. Ltd., 420 U.S. 592 (1975); see also Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 238 (1984).

Of much greater significance is the extension of Younger to civil proceedings in state courts1262 and to state administrative proceedings of a judicial nature.1263 The Younger principle applies whenever in civil or administrative proceedings important state interests are involved which the State, or its officers or agency, is seeking to promote. Indeed, the presence of important state interests in state proceedings has been held to raise the Younger bar to federal relief in proceedings which are entirely between private parties.1264 Comity, the Court said, requires abstention when States have “important” interests in pending civil proceedings between private parties,1265 as long as litigants are not precluded from asserting federal rights. Thus, the Court explained, “proper respect for the ability of state courts to resolve federal questions presented in state court litigation mandates that the federal court stay its hand.”1266

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.1267 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.1268 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.1269 Other cases expanded the want-of-jurisdiction rationale.1270 But the present status of the writ of habeas corpus may be said to have been started in its development in Frank v. Mangum,1271 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.

1262 Huffman v. Pursue, Ltd., 420 U.S. 592 (1975); Judice v. Vail, 430 U.S. 327 (1977); Trainor v. Hernandez, 431 U.S. 434 (1977); Moore v. Sims, 442 U.S. 415 (1979); Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423 (1982).

1263 Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc., 477 U.S. 619 (1986). The “judicial in nature” requirement is more fully explicated in New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U.S. 350, 366-373 (1989).

1264 Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987).

1265 “[T]he State’s interest in protecting ‘the authority of the judicial system, so that its orders and judgments are not rendered nugatory”’ was deemed sufficient. Id. at 14 n.12 (quoting Judice v. Vail, 430 U.S. 327, 336 n.12 (1977)).

1266 481 U.S. at 14.

1267 Ex parte Watkins, 28 U.S. (3 Pet.) 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.

1268 Ex parte Lange, 85 U.S. (18 Wall.) 163 (1874).

1269 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).

1270 Ex parte Wilson, 114 U.S. 417 (1885); In re Nielsen, 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, supra. 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).

1271 237 U.S. 309 (1915).

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,1272 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.1273 The landmark case was Brown v. Allen,1274 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.

1272 261 U.S. 86 (1923).

1273 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, 505 U.S. 277, 285-87 & n.3 (1992) (Justice Thomas for a plurality of the Court), with id. at 297-301 (Justice O’Connor concurring).

1274 344 U.S. 443 (1953). Brown is commonly thought to rest on the assumption that federal constututional 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, 505 U.S. 277, 297-99 (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. at 401-24, with id. at 450-61. See the material gathered and cited in Hart & Wechsler, supra at 1487-1505.

Almost plenary federal habeas review of state court convictions was authorized and rationalized in the Court’s famous “1963 trilogy.”1275 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 as to when district courts must hold a hearing and find facts.1276 “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.”1277 To “particularize” this general test, the Court went on to hold that an evidentiary hearing must take place when (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact finding procedure employed was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.1278

1275 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.

1276 Townsend v. Sain, 372 U.S. 293, 310-12 (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 factfinding. Id. at 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 factfinding. P.L. 89-711, 80 Stat. 1105, 28 U.S.C. § 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, 110-16 (1985). However, in Wright v. West, 505 U.S. 277 (1992), the Justices argued inconclusively whether deferential review of questions of law or especially of law and fact should be adopted.

1277 Townsend v. Sain, 372 U.S. 293, 312 (1963). The Court was unanimous on the statement, but it divided 5-to-4 on application.

1278 372 U.S. at 313-18. 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. § 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, 504 U.S. 1, 10, n.5 (1992). Compare id. at 20-21 (Justice O’Connor dissenting). Keeney formally overruled part of Townsend. Id. at 5.

Second, Sanders v. United States1279 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]onventional notions of finality of litigation have no place where life or liberty is at stake and infringement of constitutional rights is alleged,”1280 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 (1) the same ground presented was determined adversely to the applicant before, (2) the prior determination was on the merits, and (3) 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.1281 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.1282

1279 373 U.S. 1 (1963). Sanders was a § 2255 case, a federal prisoner petitioning for postconviction 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).

1280 373 U.S. at 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 caselaw. 373 U.S. at 11-14. But see id. at 27-28 (Justice Harlan dissenting).

1281 373 U.S. at 15. In codifying the Sanders standards in 1966, P.L. 89-711, 80 Stat. 1104, 28 U.S.C. § 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).

1282 373 U.S. at 17-19.

Third, the most controversial of the 1963 cases, Fay v. Noia,1283 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.1284 Whether a similar result prevailed upon habeas divided the Court in Brown v. Allen,1285 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.1286

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 dis-

cretion 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.1287

1283 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 postconviction 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).

1284 E.g., Murdock v. City of Memphis, 87 U.S. (20 Wall.) 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.

1285 344 U.S. 443 (1953).

1286 Fay v. Noia, 372 U.S. 391, 424-34 (1963).

1287 372 U.S. at 438-40.

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 also 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.1288 While the efforts were unsuccessful, complaints were received more sympathetically in a newly-constituted Supreme Court and more restrictive rulings 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.”1289 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.1290

1288 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.), § 4261, at 284-91.

1289 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, 504 U.S. 1, 8-10 (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. at 256-58, 274-75. As will be evident infra, some form of innocence standard now is pervasive in much of the Court’s habeas jurisprudence.

1290 433 U.S. at 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).

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.1291 Grounded as it is in the Court’s dissatisfaction with the exclusionary rule, the case has not since been extended to other constitutional grounds,1292 but the rationale of the opinion suggests the likelihood of reaching other exclusion questions.1293

Second, the Court has formulated a “new rule” exception to habeas cognizance. That is, subject to two exceptions,1294 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.”1295 A decision announces a new rule “if the result was not dictated by precedent existing at the time the defendant’s conviction became final.”1296 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.”1297

1291 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. at 493-95.

1292 Stone does not apply to a Sixth Amendment claim of inneffective 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).

1293 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, 413-14 (1977) (Justice Powell concurring), and id. at 415 (Chief Justice Burger dissenting); Wainwright v. Sykes, 433 U.S. 72, 87 n.11 (1977) (reserving Miranda).

1294 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).

1295 Teague v. Lane, 489 U.S. 288 (1989) (plurality opinion); Penry v. Lynaugh, 492 U.S. 302, 313-319 (1989).

1296 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)). This sentence was quoted again in Whorton v. Bockting, 549 U.S. 406, 416 (2007).

1297 494 U.S. at 415. See also Stringer v. Black, 503 U.S. 222, 228-29 (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).

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.1298 The Court overruled that point and substituted a much-stricter “cause-and-prejudice” standard.1299

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.1300 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. Wilson1301 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.1302

1298 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).

1299 Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992). This standard is imported from the cases abandoning Fay v. Noia and is discussed infra.

1300 373 U.S. 1, 15-18 (1963). The standards are embodied in 28 U.S.C. § 2244(b).

1301 477 U.S. 436 (1986).

1302 Sawyer v. Whitley, 503 U.S. 333 (1992). Language in the opinion suggests that the standard is not limited to capital cases. Id. at 339.

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.”1303 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 relinguishment. In McClesky v. Zant,1304 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.”1305

Fifth, the Court abandoned the rules of Fay v. Noia, although it was not until 1991 that it expressly overruled the case.1306 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.

1303 The standard is in 28 U.S.C. § 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. § 2254 Rule 9(b) (judge may dismiss successive petition raising new claims if failure to assert them previously was an abuse of the writ).

1304 499 U.S. 467 (1991).

1305 499 U.S. at 489-97. The “actual innocence” element runs through the cases under all the headings.

1306 Coleman v. Thompson, 501 U.S. 722, 744-51 (1991).

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.”1307 The “miscarriage-of-justice” element is probably limited to cases in which actual innocence or actual impairment of a guilty verdict can be shown.1308 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.”1309 As for the “prejudice” factor, it is an undeveloped concept, but the Court’s only case establishes a high barrier.1310

1307 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.

1308 E.g., Smith v. Murray, 477 U.S. 527, 538-39 (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.

1309 Murray v. Carrier, 477 U.S. at 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, 752-57 (1991) (because petitioner had no right to counsel in state postconviction 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).

1310 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”).

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,1311 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 a person claiming actual innocence would not by this reasoning, violate the Constitution.1312 Then, in In re Troy Anthony Davis,40 the Court found a death-row convict with a claim of actual innocence to be entitled to a District Court determination of his habeas petition. Justice Stevens, in a concurring opinion joined by Justices Ginsburg and Breyer, noted that the fact that seven of the state’s key witnesses had recanted their trial testimony, and that several people had implicated the state’s principal witness as the shooter, made the case “exceptional.”41

But, in Schlup v. Delo,1313 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.”1314 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.”1315

1311 506 U.S. 390 (1993).

1312 506 U.S. 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), 429 (Justice White concurring). In House v. Bell, 547 U.S. 518, 554-55 (2006), the Court declined to resolve the issue that in Herrera it had assumed without deciding: that “a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional.” See Eighth Amendment, Limitations on Habeas Corpus Review of Capital Sentences.

40 130 U.S. 1 (2009).

41 Justice Scalia, joined by Justice Thomas, dissented, writing, “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” He also wrote that the defendant’s “claim is a sure loser” and that the Supreme Court was sending the District Court “on a fool's errand.”

1313 513 U.S. 298 (1995).

1314 513 U.S. 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).

1315 513 U.S. at 327. This standard was drawn from Murray v. Carrier, 477 U.S. 478 (1986).

In the Antiterrorism and Effective Death Penalty Act of 1996,1316 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.1317 An important new restriction on the authority of federal habeas courts found in the new law 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.”1318

For the future, barring changes in Court membership, other curtailing of habeas jurisdiction can be expected. Perhaps the Court will impose some form of showing of innocence as a predicate to obtaining a hearing. More far-reaching would be, as the Court continues to emphasize broad federalism concerns, rather than simply comity and respect for state courts, an overturning of Brown v. Allen itself and the renunciation of any oversight, save for the extremely limited direct review of state court convictions in the Supreme Court.

Removal.—In the Judiciary Act of 1789, Congress provided that civil actions commenced in the state courts which could have been brought in the original jurisdiction of the inferior federal courts could be removed by the defendant from the state court to the federal court.1319 Generally, as Congress expanded the original jurisdiction of the inferior federal courts, it similarly expanded removal jurisdiction.1320 Although there is potentiality for intra-court conflict here, of course, in the implied mistrust of state courts’ willingness or ability to protect federal interests, it is rather with regard to the limited areas of removal that do not correspond to federal court original jurisdiction that the greatest amount of conflict is likely to arise.

1316 P. L. 104-132, Title I, 110 Stat. 1217-21, amending 28 U.S.C. §§ 2244, 2253, 2254, and Rule 22 of the Federal Rules of Appellate Procedure.

1317 518 U.S. 651 (1996).

1318 The amended 28 U.S.C. § 2254(d) (emphasis supplied). The provision was applied in Bell v. Cone, 122 S. Ct. 1843 (2002). See also Renico v. Lett, 130 S. Ct. 1855, 1864-66 (2010). For analysis of its constitutionality, 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).

1319 § 12, 1 Stat. 79. The removal provision contained the same jurisdictional amount requirement as the original jurisdictional statute. It applied in the main to aliens and defendants not residents of the State in which suit was brought.

1320 Thus the Act of March 3, 1875, § 2, 18 Stat. 470, conferring federal question jurisdiction on the inferior federal courts, provided for removal of such actions. The constitutionality of congressional authorization for removal is well-established. Chicago & N.W. Ry. v. Whitton’s Administrator, 80 U.S. (13 Wall.) 270 (1871); Tennessee v. Davis, 100 U.S. 257 (1879); Ames v. Kansas ex rel. Johnston, 111 U.S. 449 (1884). See City of Greenwood v. Peacock, 384 U.S. 808, 833 (1966).

If a federal officer is sued or prosecuted in a state court for acts done under color of law1321 or if a federal employee is sued for a wrongful or negligent act that the Attorney General certifies was done while she was acting within the scope of her employment,1322 the actions may be removed. But the statute most open to federal-state court dispute is the civil rights removal law, which authorizes removal of any action, civil or criminal, which is commenced in a state court “[a]gainst any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof.”1323 In the years after enactment of this statute, however, the court narrowly construed the removal privilege granted,1324 and recent decisions for the most part confirm this restrictive interpretation,1325 so that instances of successful resort to the statute are fairly rare.

1321 See 28 U.S.C. § 1442. This statute had its origins in the Act of February 4, 1815, § 8, 3 Stat. 198 (removal of civil and criminal actions against federal customs officers for official acts), and the Act of March 2, 1833, § 3, 4 Stat. 633 (removal of civil and criminal actions against federal officers on account of acts done under the revenue laws), both of which grew out of disputes arising when certain States attempted to nullify federal laws, and the Act of March 3, 1863, § 5, 12 Stat. 756 (removal of civil and criminal actions against federal officers for acts done during the existence of the Civil War under color of federal authority). In Mesa v. California, 489 U.S. 121 (1989), the Court held that the statute authorized federal officer removal only when the defendant avers a federal defense. See Willingham v. Morgan, 395 U.S. 402 (1969).

1322 28 U.S.C. § 2679(d), enacted after Westfall v. Erwin, 484 U.S. 292 (1988).

1323 28 U.S.C. § 1443(1). Subsection (2) provides for the removal of state court actions “[f]or any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.” This subsection “is available only to federal officers and to persons assisting such officers in the performance of their official duties.” City of Greenwood v. Peacock, 384 U.S. 808, 815 (1966).

1324 Strauder v. West Virginia, 100 U.S. 303 (1880); Virginia v. Rives, 100 U.S. 313 (1880); Neal v. Delaware, 103 U.S. 370 (1880); Bush v. Kentucky, 107 U.S. 110 (1883); Gibson v. Mississippi, 162 U.S. 565 (1896); Smith v. Mississippi, 162 U.S. 592 (1896); Murray v. Louisiana, 163 U.S. 101 (1896); Williams v. Mississippi, 170 U.S. 213 (1898); Kentucky v. Powers, 201 U.S. 1 (1906).

1325 Georgia v. Rachel, 384 U.S. 780 (1966); City of Greenwood v. Peacock, 384 U.S. 808 (1966). There was a hiatus of cases reviewing removal from 1906 to 1966 because from 1887 to 1964 there was no provision for an appeal of an order of a federal court remanding a removed case to the state courts. § 901 of the Civil Rights Act of 1964, 78 Stat. 266, 28 U.S.C. § 1447(d).

Thus, the Court’s position holds, one may not obtain removal simply by an assertion that he is being denied equal rights or that he cannot enforce the law granting equal rights. Because the removal statute requires the denial to be “in the courts of such State,” the pretrial conduct of police and prosecutors was deemed irrelevant, because it afforded no basis for predicting that state courts would not vindicate the federal rights of defendants.1326 Moreover, in predicting a denial of rights, only an assertion founded on a facially unconstitutional state statute denying the right in question would suffice. From the existence of such a law, it could be predicted that defendant’s rights would be denied.1327 Furthermore, the removal statute’s reference to “any law providing for . . . equal rights” covered only laws “providing for specific civil rights stated in terms of racial equality.”1328 Thus, apparently federal constitutional provisions and many general federal laws do not qualify as a basis for such removal.1329

1326 Georgia v. Rachel, 384 U.S. 780, 803 (1966); City of Greenwood v. Peacock, 384 U.S. 808, 827 (1966). Justice Douglas in dissent, joined by Justices Black, Fortas, and Chief Justice Warren, argued that “in the courts of such State” modified only “cannot enforce,” so that one could be denied rights prior to as well as during a trial and police and prosecutorial conduct would be relevant. Alternately, he argued that state courts could be implicated in the denial prior to trial by certain actions. Id. at 844-55.

1327 Georgia v. Rachel, 384 U.S. 780, 797-802 (1966). Thus, in Strauder v. West Virginia, 100 U.S. 303 (1880), African-Americans were excluded by statute from service on grand and petit juries, and it was held that a black defendant’s criminal indictment should have been removed because federal law secured nondiscriminatory jury service and it could be predicted that he would be denied his rights before a discriminatorily-selected state jury. In Virginia v. Rives, 100 U.S. 313 (1880), there was no state statute, but there was exclusion of Negroes from juries pursuant to custom and removal was denied. In Neal v. Delaware, 103 U.S. 370 (1880), the state provision authorizing discrimination in jury selection had been held invalid under federal law by a state court, and a similar situation existed in Bush v. Kentucky, 107 U.S. 110 (1882). Removal was denied in both cases. The dissenters in City of Greenwood v. Peacock, 384 U.S. 808, 848-852 (1966), argued that federal courts should consider facially valid statutes which might be applied unconstitution-ally and state court enforcement of custom as well in evaluating whether a removal petitioner could enforce his federal rights in state court.

1328 Georgia v. Rachel, 384 U.S. 780, 788-94 (1966); City of Greenwood v. Peacock, 384 U.S. 808, 824-27 (1966), See also id. at 847-48 (Justice Douglas dissenting).

1329 City of Greenwood v. Peacock, 384 U.S. at 824-27. See also Johnson v. Mississippi, 421 U.S. 213 (1975).

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