Some kinds of claims-like the retroactivity of newly articulated rights under Teague v. Because state criminal cases are both more numerous and comparatively poorly funded, the Supreme Court must get creative if it wants to keep setting the contours of federal rights.ĭirect appeals have their own problems. By choosing not to contest broad applications of Supreme Court precedent in lower federal courts, DOJ and the Solicitor General can perversely insulate the Supreme Court from deciding important questions about federal rights-even as those same questions arise in state criminal proceedings. Most cases the Supreme Court hears come from federal courts. The Department of Justice has played a role as well. In sum, federal habeas is a worse vehicle than it used to be. Second, and more subtly, it puts increased pressure on the Supreme Court to determine the content of clearly established federal law-because no one else may do so. First, it robs lower federal courts of the chance to develop constitutional doctrine in habeas cases, since lower court precedent is not relevant for purposes of AEDPA. Under that law, habeas is limited to cases in which a state court has unreasonably applied clearly established federal law “as determined by the Supreme Court.” This bar has two effects, Ahdout argues. Congress imposed a host of new procedural hurdles on habeas petitioners in 1996’s AEDPA. So much for the presumption that the Court “rarely grants review” on this posture.Īhdout traces this shift in the Supreme Court’s certiorari practice to developments in the two coordinate branches. The trend continued with another four cases in 2016, and three each in 20. 2015 marked the break: the Court took five cases on direct collateral review that term, more than it had taken in the preceding six terms combined. While it was once true that the Supreme Court disfavored direct collateral review-from 1986 until 2003, the Court took only nine such cases-that is changing. The Court protests too much, Ahdout thinks. This presumption reflects the Court’s traditional view that the intermediate posture of direct collateral review makes such cases poor vehicles for resolving contested questions of federal law. #WHAT DOES A HAIL MARY FOOTBALL FULL#Justice Stevens once noted that the Court “rarely grants review at this stage … even when the application … is supported by arguably meritorious constitutional claims,” a point later endorsed by the full Court. The conventional wisdom is that the Supreme Court reviews cases in this posture only infrequently. In arguing that direct collateral review is a viable vehicle on the rise, this paper takes on a formidable task. #WHAT DOES A HAIL MARY FOOTBALL TRIAL#There are even substantial benefits for judicial federalism, because the Supreme Court can supervise the application of federal rights in state courts without undermining the presumption of parity between federal and state trial courts.Īmbitious papers traverse pitched terrain Ahdout’s is no exception. Yet in Direct Collateral Review, a dazzling tour through both postconviction doctrinal weeds and high habeas theory, Payvand Ahdout shows that this hybrid approach has promise for individual criminal defendants and the development of constitutional doctrine. At first blush, this hybrid approach seems to combine the challenges faced by its alternatives, because to succeed it must hurdle many procedural obstacles and then complete a desperate, Hail Mary pass. Finally, a defendant could choose a hybrid: file a habeas-like petition for postconviction review in state court, and hope that the Supreme Court will grant certiorari after state courts deny relief. But like the flea-flicker or the hook-and-ladder, federal habeas involves avoiding many procedural obstacles. Second, a defendant can petition a federal district court for a writ of habeas corpus. But these prayers for relief, like Hail Marys, most often go unanswered. First, a criminal defendant can appeal directly to the highest civil authority by petitioning the U.S. Winning review of a state criminal conviction in federal court requires a higher-stakes and less fair version of the same choice among long shots. #WHAT DOES A HAIL MARY FOOTBALL SERIES#Which play should you call? A Hail Mary pass into the end zone, reducing the game’s outcome to a lone, long-shot attempt? Or perhaps a trick play-a conceit from the back of the playbook with a colorful name like flea-flicker, fumblerooski, or Statue of Liberty-requiring you to avoid a series of tackles in an unlikely bid to run the ball to victory? In other words, would you rather face nearly impossible odds once or even odds a half dozen times? If you don’t score a touchdown, the game’s over.
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