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Direct Collateral Review Creates Path Around AEDPA Hurdles for State Prisoners Seeking Postconviction Relief

by Dale Chappell

It’s called “direct collateral review,” and it’s quickly becoming a way for state prisoners to get around the obstacles and roadblocks to receiving habeas relief in federal court. Never heard of it? Read on.

During the 1950s and 1960s, the Supreme Court of the United States (“SCOTUS”) expanded the writ of habeas corpus for state prisoners because of the state courts’ blatant violations of the federal rights of criminal defendants. With prison populations exploding the next few decades, however, the Court’s new chief justicedecidednumerous cases restricting access to habeas corpus. While these decisions bound the lower courts’ hearing habeas cases, they were not set in stone: SCOTUS could still make exceptions to its own decisions.

But then, in 1996, Congress codified these decisions with the Antiterrorism and Death Penalty Act (“AEDPA”). Now they were set in stone, taking all discretion from the courts in granting access to habeas relief, no matter how egregious the state court’s error. SCOTUS later took back control and opened a seldom-used road for habeas relief for state prisoners, one that it had previously rejected prior to the AEDPA: direct collateral review (“DCR”). This avenue avoids the AEDPA’s restrictions on habeas relief and allows SCOTUS to grant relief to state prisoners when it sees fit to do so. In this article, we will go over this rapidly emerging remedy and how it works.

All Roads Lead to
the Supreme Court

There are three roads a state prisoner can take to challenge their criminal case in the U.S. Supreme Court. First, there is the usual path of direct appeal. Following this path, the case works its way through the state appellate courts immediately after a conviction, ultimately ending in the Supreme Court. Most people are familiar with this method, even though SCOTUS has said many times that it is loath to intrude on a state court’s decision.

The second route is by way of the convoluted path of federal habeas corpus. This road trip starts with a state postconviction challenge in the state trial court, winds its way through the state appellate courts, and then on to the federal courts. Once in the federal courts, it starts again with a petition in the federal trial court (district court), slogs its way through the federal court of appeals, and potentially makes it to SCOTUS. This road has a lot of potholes and roadblocks that most habeas petitioners and lawyers cannot navigate on their own. It’s a rough road, but a familiar one to many state prisoners. Relief is rarely granted by any of the several courts along the way.

The third and less-traveled road is what some have begun calling “direct collateral review.” This trip starts like the habeas path above in the state trial court but never goes to the federal courts. Instead, after taking (and losing) their postconviction challenge to the state supreme court (or top appellate court within the jurisdiction), a prisoner takes their state postconviction challenge directly to SCOTUS. The reason most people have never heard of this route is because SCOTUS has flatly rejected it , “[deeming] federal habeas proceedings to be the more appropriate avenues for consideration of federal constitutional claims.” Kyles v. Whitley, 498 U.S. 931 (1990).

DCR is not just another form of habeas corpus in the Supreme Court, however. Under the habeas statutes, the Court gets its jurisdiction from 28 U.S.C. § 2254 to hear state prisoners’ claims. But under DCR, the Court gets its jurisdiction from 28 U.S.C. § 1257(a), the same as a direct appeal taken to the Supreme Court from a state court judgment. This distinction is important because it removes DCR from the realm of habeas corpus and all of its restrictions.

The Supreme Court Builds
New Habeas Roads

Habeas corpus originated in the English common law and was adopted into American law from the beginning. At its core, habeas is a challenge to the legality of a person’s imprisonment. Under the Habeas Corpus Act of 1867, Congress expanded the remedy to include state prisoners, as it was originally exclusive to prisoners of the federal government.

Starting in the 1950s, SCOTUS handed down many landmark criminal procedure decisions curtailing abuses by the states. The states were hostile to the Court’s hand in their prosecution of criminal cases, however, and ignored these decisions. SCOTUS then armed federal courts with broad powers under habeas corpus to provide relief to state prisoners when their federal rights were violated. During this era, federal habeas review of state convictions was mostly a new trial in the federal court. The decision of the state court was given very little weight by the federal court, under a de novo standard of review. Federal habeas corpus became an integral part of protecting the rights of defendants in state criminal cases.

The Supreme Court
Slows Down Traffic

As the population of the nation’s prisons exploded, so did the numbers of habeas petitions filed by state prisoners in the federal courts. SCOTUS, under a new Chief Justice, took steps to stop the flood, tossing around terms like “comity,” “finality,” and “federalism” to justify a slew of restrictions on habeas relief. During much of the Court’s criminal rights cases in the 1960s, federal habeas petitions by state prisoners jumped from just under 900 to about 5,000 per year. By 1970, that number was over 9,000. Today, it’s around 25,000 each year, despite many attempts by the Court and Congress to prevent habeas petitions by all prisoners.

Decisions by the Court to slow federal habeas petitions included Wainwright v. Sykes, 433 U.S. 72 (1977), in which the Court developed the procedural default rule that bars many petitions before they can begin. Under that doctrine, a claim cannot be heard by the federal habeas court unless it was first raised in the state courts. Similarly, the Court held in Rose v. Lundy, 544 U.S. 509 (1982), that a state prisoner must go through all avenues of relief in state court before going to the federal court. This “total exhaustion rule” purposely gave the state courts the chance to fix the error before the federal courts get involved. In a more confusing case that the Court still admits isn’t too clear, the Court held in Teague v. Lane, 489 U.S. 288 (1989), that decisions of the Supreme Court announcing new rules do not apply retroactively on habeas review, unless they meet some very narrow exceptions.

Congress Shuts Down
Most Habeas Roads

As if the Supreme Court’s decisions curbing federal habeas relief weren’t enough, Congress stepped in by enacting the AEDPA in 1996. Setting aside the fact that AEDPA did nothing over the last 25 years to make the death penalty more “effective” or prevent terrorist attacks (see my article on the 25th anniversary of the AEDPA in PLN, June 2021), the one thing it did do was codify all the Supreme Court decisions limiting habeas review for all prisoners. That is, it took those decisions and made them law.

Besides Congress turning the procedural default, nonretroactivity, and total exhaustion rules into federal law, lawmakers added several more laws based on Supreme Court decisions. This included an “in-custody” requirement for the petitioner, narrow standards for an evidentiary hearing in federal court, severe limits on second or successive petitions, and an out-of-the-blue one-year time limit not based on any Supreme Court case.

One of the biggest game-changers, however, was a law requiring federal courts to give deference to decisions of the state courts. No longer could a federal court disregard what the state court said. Under 28 U.S.C. § 2254(d), a claim that was “adjudicated on the merits in state court” must stand unless the state-court judgment (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law (i.e., a Supreme Court decision), or (2) was an “unreasonable determination of the facts” of the case. This killed the de novo standard of review the federal courts had long-employed in considering habeas relief. SeeKimmelman v. Morrison, 477 U.S. 365 (1986) (employing the de novo standard to an ineffective assistance of counsel claim on habeas review).

Now, federal courts mainly focus on whether a prisoner’s habeas petition can pass through all of those AEDPA hoops. The courts rarely hear actual habeas claims anymore, which two noted habeas scholars complained about in a 2011 study. “Far too much time and effort that federal court and states’ attorneys devote to habeas litigation has nothing to do with whether the petitioner is actually guilty or has been convicted or sentenced in violation of the Constitution,” they wrote.

It is rare for a prisoner to be able to get around all the AEDPA obstacles to have their claims heard. Experts note that most habeas petitioners can’t afford lawyers and have to go through it alone. Law professor Eve Brensike Primus wrote in a recent law review article that prisoners “either must proceed pro se or rely on pro bono assistance that typically comes from large law firms or legal institutions that do not focus on criminal cases.”

Federal habeas relief has been called a “pipe dream” by other scholars, and the numbers prove them right. Prior to the AEDPA, nearly 40% of capital (death penalty) habeas petitions were granted relief in federal court. After AEDPA, this dropped to 12%, and those are cases typically filed by lawyers. The success rate for non-capital habeas petitioners was a miserable one-third of one percent (0.29%), as noted in a 2007 study. That rate hasn’t changed much since then, according to data from the Bureau of Justice Statistics.

AEDPA has put up some formidable roadblocks to prisoners seeking federal habeas relief, nearly closing that road to many of them.

The Direct Collateral
Review Detour

Direct collateral review is a detour around the AEDPA. Prior to the AEDPA, this detour wasn’t needed because federal habeas was the better way to address violations of defendants’ federal rights by the state courts. Indeed, SCOTUS resolved only six DCR cases in the ten years leading up to the AEDPA and only one per year after that.

In 2016, DCR grew legs in the Court and took off—relatively speaking. In that year alone, SCOTUS decided on the merits five DCR cases. One of those was Williams v. Pennsylvania, 136 S. Ct. 1899 (2016). This case held that a state supreme court justice’s refusal to recuse himself violated the Due Process Clause, where the justice was the former district attorney who pushed for the petitioner’s death sentence. Without a clear Supreme Court holding previously established on that issue, the petitioner had no chance on federal habeas corpus when the state courts denied his challenges. DCR was his only hope, and it worked.

Two cases illustrate the Court’s about-face on DCR cases. In Kyles, noted above, SCOTUS denied certiorari in a DCR case, noting that the Court “rarely” heard DCR cases and that the petitioner should have filed a federal habeas petition. Five years later, the petitioner prevailed on his claim in the Supreme Court, after working through the courts with a habeas petition. Kyles v. Whitley, 514 U.S. 419 (1995). But then, in Dunn v. Madison, 138 S. Ct. 9 (2017), the Court flipped and told the habeas petitioner that he would have better luck with a DCR petition because the AEDPA forbade the Court from granting him relief. He listened and filed a request to stay his execution and a petition for certiorari, which were granted by the Court. It explained: “Because the case now comes to us on direct review of the state court’s decision (rather than in a habeas proceeding), ADEPA’s deferential standard no longer governs.” Madison v. Alabama, 139 S. Ct. 718 (2019).

Z. Payvand Ahdout wrote about the Court’s change of heart in a recent law review article titled “Direct Collateral Review.” He noted that SCOTUS’ “shadow docket” had opinions by justices referring petitioners to take the DCR road. The shadow docket is separate from the familiar docket of the Court’s merit opinions. It contains orders, reversals, and other opinions that never see daylight. Periodically, the Justices give advice to the petitioners, as happened in the cases just discussed.

The part of the AEDPA that caused this shift from habeas to DCR is the harsh rule under § 2254(d), requiring federal courts to uphold a state court decision—even if the court knows it is wrong. SCOTUS said this deference rule was created to “guard against extreme malfunctions in the state criminal justice systems, not [to act as] a substitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86 (2011). “If this standard is difficult to meet,” the Court explained, “that is because it was meant to be.”

There is a problem with forbidding a federal court from questioning a state court unless it went against a SCOTUS decision: if the Court has never addressed the error, the federal habeas court cannot hear it, no matter how obvious the error is. This has led to the obvious conclusion that the scope of federal habeas corpus is “frozen in time,” as Ahdout wrote in his article. In other words, a state prosecutor could commit the same error over and over, violating countless defendants’ constitutional rights, completely insulated from correction by any federal court on habeas review. This problem is one being faced in the controversial doctrine of qualified immunity, which gives police officers immunity from violations of civil rights simply because there is no “clearly established” law on the officers’ exact actions. See Sims v. City of Madisonville, 894 F.3d 632 (5th Cir. 2018) (lamenting that four times in three years the court has faced the same constitutional violation by a state actor with there being no “clearly established” law against it: “continuing to resolve the question at the clearly established step means the law will never get established”); see also CLN’s March 2021 cover story, “Qualified Immunity: A Legal, Practical, and Moral Failure.”

This prompted Justice Ginsburg to speak out on the Court’s critical role in hearing DCR cases with significant constitutional claims that would otherwise be ignored because of § 2254(d). “Since AEDPA ... our consideration of state habeas petitions has become more pressing,” she wrote in her dissenting opinion in Lawrence v. Florida, 549 U.S. 327 (2007). “Even if rare, the importance of our review of state [collateral review] proceedings is evident.” She cited other DCR cases decided by the Court before the AEDPA to resolve important constitutional questions, such as death sentences for minors and visible shackling of a defendant during a capital murder trial.

The benefit of DCR is that the standard of review is the same as if the case were on direct review from the criminal judgment: the de novo standard. The Court doesn’t have to give deference to the state court decision. So far, Congress hasn’t spoken on SCOTUS’ standard of review for DCR cases, and some scholars say this should remain intact because of the critical role of the Court in DCR cases.

Some have mentioned that cases on direct appeal and federal prisoner motions under 28 U.S.C. § 2255 can still create “clearly established federal law” for state prisoners on habeas review. That, however, is unlikely. First, cases before the Supreme Court that come up through a direct appeal are usually not the same issues that arise in habeas cases. Issues such as ineffective assistance of counsel, a prosecutor withholding evidence, and retroactivity of new rules are almost always reserved for habeas review.

Second, § 2255 motions deal with federal law, not state law. While § 2255 motions aren’t constrained by the deference rule under § 2254(d) and new case law can be made, this will rarely happen. That is because the federal government, who is the respondent in § 2255 cases, can insulate new issues from becoming a Supreme Court decision (i.e., clearly established federal law) simply by conceding the point in a single case. This ensures that the Court will not rule on the issue in the petitioner’s favor, opening the door for other petitioners. The government’s concession in a case does not apply to any other case.

Even if the issue does reach SCOTUS in a § 2255 appeal, the Solicitor General, often called the “Tenth Justice,” manipulates the Court by either conceding error or convincing the Court to remand (or return) the case back to the lower courts to fix the error without a decision from SCOTUS. The Solicitor General controls what gets appealed when the U.S. government is a party in a case, such as a § 2255 motion.

However, the Solicitor General has no control over DCR cases by state prisoners, making them an increasingly popular way to create new clearly established federal law for habeas review. Still, DCR to the Supreme Court has not been fully incorporated into state collateral review proceedings. The “normal” route continues to be weaving through federal habeas corpus, instead of going straight to SCOTUS when the state court denies postconviction relief. Fortunately, a state prisoner can do both—federal habeas corpus and DCR. They should know, however, that their habeas petition in the federal court must be filed within the one-year limit. While that clock is tolled during state collateral proceedings, it is not tolled after the state’s highest court denies relief. That means if a state prisoner heads directly to SCOTUS on DCR, they must also file their habeas petition in federal court to stop the clock.


Although it has always existed, direct collateral review in the Supreme Court of state prisoners’ constitutional claims has become a viable alternative for addressing important federal rights and for creating new “clearly established federal law” that can apply not only on direct appeal and DCR but also in future federal habeas cases filed by state prisoners. 


Source: A. Payvand Ahdout, “Direct Collateral Review,” Columbia Law Review (2019)


Dale Chappell is a staff writer for Criminal Legal News and Prison Legal News on habeas corpus and criminal justice issues affecting prisoners. His writing has been noted by various news outlets and law blogs, and he is a recognized authority on federal habeas corpus. As a member of the National Lawyers Guild, Chappell has advocated for prisoners for over a decade. He is the author of WinningCites: Habeas Corpus for Federal Prisoners, and other books on criminal law. Watch his regular columns in Criminal Legal News for more information on these books.

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