The New Habeas Corpus in Death Penalty Cases

This article offers the first systematic examination of Chapter 154, United States Code, which establishes new statutory arrangements for cases in which state prisoners under sentence of death file federal habeas corpus petitions challenging their convictions or sentences. Chapter 154 was enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996. Yet its provisions were made applicable only in capital cases arising from states that established qualifying schemes for providing indigent death row prisoners with counsel in state postconviction proceedings. No state’s system for supplying lawyers in state court won approval and, in consequence, Chapter 154’s rules and procedures for death penalty cases have been on hold for nearly twenty years. Recently, the Department of Justice has revised the standards that state legal services programs must satisfy. This article proceeds from the premise that some states will secure certification that their schemes conform and focuses on the interpretation the provisions in Chapter 154 should receive in the cases to which they apply. At the time of enactment, the rules and procedures in Chapter 154 were commonly said to be favorable to states responding to prisoners’ petitions. This article contends that when the provisions in Chapter 154 are interpreted sensibly and pragmatically, they do not establish especially state-friendly protocols for the conduct of capital habeas litigation. Other provisions in the 1996 Act and innovations adopted since have largely stolen the show inasmuch as they subject all habeas cases, capital and noncapital alike, to essentially the same arrangements