Wednesday, June 16, 2010

Holland v. Florida and the Equity of the Writ

Steve Vladeck

Most media reports and early commentary on Monday’s Supreme Court decision in Holland v. Florida have focused (rightly, methinks) on the atmospherics—on the Court once again interfering with a capital sentence in a state court; on the slow-but-steady movement to the center in the Court’s jurisprudence with regard to professional standards of conduct in capital habeas cases; even on the surprising silence of the Chief Justice, the only one of the four Justices to Justice Kennedy’s right who joined the majority opinion without comment.

Lost in these discussions, though, is perhaps the far more interesting (and potentially more significant) thread underlying the holding in Holland—that equitable tolling is, and should be, generally available in post-conviction habeas cases under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). To be sure, the Justices differed somewhat (as lower courts have) over what would be an appropriate case for equitable tolling, but it’s fairly significant that, other than Justices Scalia and Thomas, the Court had no difficulty in applying a principle grounded in equity to the statutory codification of a common-law writ.

Thus, in discussing the applicability of the normal presumption in favor of equitable tolling, Justice Breyer wrote for the Court that, “In the case of AEDPA, the presumption’s strength is reinforced by the fact that equitable principles have traditionally governed the substantive law of habeas corpus, for we will not construe a statute to displace courts’ traditional equitable authority absent the clearest command.” [citations and quotation marks omitted]

What’s telling about this passage is not the notion that “equitable principles have traditionally governed the substantive law of habeas corpus”; that much is clearly true, even if it is (at least superficially) somewhat counterintuitive. As an amicus brief filed by habeas historians argued, it was well established by 1789 that habeas practice in England had expressly incorporated a host of equitable features into both the statutory and common-law forms of the writ, recognizing the uniqueness of the Great Writ and the need to maximize judicial flexibility. The question Holland really presented was whether those equitable principles survived AEDPA, and the Court unhesitatingly concluded that they did:

When Congress codified new rules governing this previously judicially managed area of law, it did so without losing sight of the fact that the writ of habeas corpus plays a vital role in protecting constitutional rights. It did not seek to end every possible delay at all costs. The importance of the Great Writ, the only writ explicitly protected by the Constitution, along with congressional efforts to harmonize the new statute with prior law, counsels hesitancy before interpreting AEDPA’s statutory silence as indicating a congressional intent to close courthouse doors that a strong equitable claim would ordinarily keep open.

As I’ve written elsewhere, our tendency to assume that the rules in post-conviction habeas cases have been rigidly circumscribed by Congress is a very recent development. The reality is that there was very little in the way of positive rules and procedures to govern such cases until 1948 at the earliest, and even through the 1970s and 1980s, when the Burger and Rehnquist Courts superimposed a series of procedural exhaustion, default, and waiver requirements primarily as a matter of judge-made law. Folks may well debate the merits of any or all of these decisions, but the basic gist was helpfully summarized in 1973 by Justice Brennan, when he wrote for the Court in Hensley v. Municipal Court, that “we have consistently rejected interpretations of the habeas corpus statute that would suffocate the writ in stifling formalisms or hobble its effectiveness with the manacles of arcane and scholastic procedural requirements.”

I don’t mean to make more out of these short passages in Holland than is actually there. Nothing in the majority opinion suggests that anything would stop Congress from precluding such equitable considerations in post-conviction habeas petitions, even though one might marshal constitutional arguments that, to the extent English practice at the Founding specifically recognized equitable arguments, such legislation would implicate the Suspension Clause. But it's refreshing to see the Court reiterate a fairly basic (and yet largely neglected) point about habeas corpus, reinforcing a more classical view of the writ that may well have been lost on other contemporary jurists.


the slow-but-steady movement to the center in the Court’s jurisprudence with regard to professional standards of conduct in capital habeas cases

Seems like understatement of a sort. Given Holland's attorney's utter incompetence/indifference, the decision in this case should have been a no-brainer.

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awesome article thanks

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