Aaron Lindh v. James P. Murphy, Warden

prisoners corpus, filing to federal habeas as dis late fee before we will consider the (a their access to tort appeal. tinct from remedies merits of the emphasized Humphrey, in Heck v. distinction So ORDERED. (1994)). by drastically curtailing And

filing applications of second or successive corpus,

habeas the antiterrorism law ad corpus

dressed the context of habeas groundless litigation

same concern with Litigation

informs the Prison Reform Act response

and tailored its to that context. question (presented by 4. The last LINDH, Petitioner-Appellant, Aaron 96-2541) No. is whether this court should upon payment insist partial of the initial required by Litigation fee the Prison Reform MURPHY, Warden, James P. filing appeal by Act for the of an prisoner Respondent-Appellee. in a civil action covered the Act before we No. 95-3608. reach the merits even of a frivolous ease. agree

We with the Second Circuit that the Appeals, United States Court of “yes.” Lacy, answer Leonard v. 88 F.3d Seventh Circuit. (2d Cir.1996). To reach the merits of Argued April 1996. appeals insisting frivolous without on the ini payment produce tial paradox would Reargued En Banc June 1996. appellants get frivolous would a decision on Sept. Decided charge the merits without appellants while who had losing get colorable but eases would (the same) decision on the merits after

paying (assuming they pay have means of 1915(b)(4)).

ing, Congress U.S.C. want

ed pressures relieve on the federal

courts of prison frivolous suits inmates

and we can purpose by best achieve that

insisting payment every advance in

case which that is feasible. To be content frying to collect the dismissing fee after

the suit as frivolous would an be inferior

alternative, prisoner since that time the

will pay often not be able to even if he had pay

the means to appeal. when he filed the commissary

His may depleted account may release, verge he be on the so

that the account replenished, will not be have charges against accrued other perhaps stemming from other account — brought. suits that he has

In light of analysis, our decline to we dis-

miss petition for mandamus in No. 96- appeals

8027 or the in Nos. 96-2568 and 96- appellant

2267. And the in No. 96-2011 need

not obtain a appealability certificate of

order to maintain appeal. appellant his 96-2541, however, No. pay appel- must

858 Public Findley, A. Office the State

Keith WI, Defender, Madison, James S. Liebman City, Petitioner-Ap- (argued), York for New pellant. (argued),

Sally Office L. Wellman General, Department of Attorney Madison, WI, Justice, Respondent-Appel- for lee. Levenstam, Solovy, Ellen

Barry Jerold S. Leuin, Kordik, Jenner & B. R. Charles Ramo, Block, IL, Cooper Chicago, Roberta IL, Association, Chicago, Bar American Association, Amicus Curiae. Bar American Jarvis, Davis, Jeffrey Mitchell O. E. David Milwaukee, WI, Moser, Brady, Quarles & S. Kendall, City, for Nich- New York George H. Frankel, Bua, E. Susan Get- Marvin olas J. Gibbons, zendanner, A. Leon H. John Hufstedler, Shirley M. Higginbotham, Tone, Philip Harold Leighton, W. George N. Jr., Amici Tyler, Curiae. R. POSNER, Judge, subjects

Before Chief and Giglio cross-examination under CUMMINGS, COFFEY, FLAUM, States, v. United EASTERBROOK, RIPPLE, MANION, Instead Lindh ar KANNE, ROVNER, WOOD, gued County prosecu DIANE P. and that even if the Dane EVANS, provide quid tor could not Judges. pro quo by Circuit for going charges reducing severity, he

EASTERBROOK, Judge. Circuit might put good in a word with the Milwau January 1988 Aaron Lindh marched prosecutor; lenity kee and whether or not City-County Madison, Building into the cards, might Roberts believe that Wisconsin, strangers and shot three for no something gain helping had apparent pleaded Lindh, reason. Two died. Lindh convict analysis which could color his guilty carrying using a firearm in a testimony. argued Lindh that both public building; jury convicted him of two state law and the Confrontation Clause of attempted Amendment, During murders one murder. applied Sixth to the states phase the second proceeding, process of a bifurcated the due clause of the Four teenth, argued Lindh that he was insane at the time entitled him to cross-examine Rob shootings, potential erts which under Wisconsin law about all sources of bias. See place Kentucky, would Olden v. alter the of his confinement (from (1988); prison prison-hospital) to a and enti- Delaware Arsdall, 673, 1431, him Van 475 tle to release if at 106 some future time he (1986); should be United States v. jury deemed “recovered.” But the Abel, 45, 465, 469 U.S. 105 S.Ct. 83 found that Lindh did L.Ed.2d not have a mental (1984); Alaska, 308, 450 Davis v. 415 pulled disease when he trigger, the and the 1105, (1974). 39 L.Ed.2d judge 347 plus years him sentenced to life in prison. trial judge inquiry foreclosed into this subject (although permitted extensive principal

Lindh’s contention on appeal matters), cross-examination on other judge unduly was that restricted his reversed, Lindh, appeals court of State v. Roberts, Leigh cross-examination of Dr. 768, Wis.2d (Wis.App.1990), N.W.2d 564 psychiatrist day who interviewed him on the and the Court of Wisconsin re- (and shootings of the several times thereaf- turn, reinstating sentences, versed in ter) and prosecution during testified for the Lindh, State v. 161 Wis.2d 468 N.W.2d phase the second During of the trial. (1991). highest The state’s court con- March 1988 Roberts learned that he was possibility cluded that of bias was so investigation under engaging improp- for in remote, given appointment special of a er sexual patient; conduct with a female in prosecutor, prospect and the diverting at- May 1988 Roberts learned that the Medical (a tention to subject the sexual encounters Examining looking allega- Board was into no sanity) relevance to Lindh’s sufficiently tions made patients. By three female great, that judge the trial did not abuse the the time of in September trial 1988 a crimi- possessed discretion he both under state and investigation nal ongoing was —conducted federal law. Justice Abrahamson dissented County Milwaukee Attorney, District on grounds. state-law 468 N.W.2d at 185-89. acting special prosecutor as a after Lindh then commenced a collateral attack in (whose County Attorney Dane juris- District federal court. The district court denied the Madison) diction includes recused himself. petition, writing “agrees that it wholeheart- attorney Lindh’s sought explore the alle- edly analysis with the of’ the state’s Su- gations Roberts, against made contending preme appealed Court. Lindh to this court. pending investigation give would Roberts a reason to testimony slant his in days Fifteen panel after a argu- heard oral prosecution’s ment, favor. Lindh did not ar- signed President the Antiterrorism gue that Roberts had entered into discus- Penalty Effective Death Act of sions prosecutor with the about the sexual 104-132, Pub.L. 110 Stat. 1214. Section 104 allegations; any plea agreement misconduct § new statute amends 28 U.S.C. negotiations or progress in would have been the law under which Lindh seeks relief. 2254(a) other, in at the apply the law force Act, pro- we must § by the 1996 Unaffected say, the new is to time decision—which corpus issue habeas a writ of vides 2254(d) provision at § “the new is in petitioner] ground [the “on —unless legal consequences events or taches new of the Constitution custody in violation its completed before enactment.” It the United States.” treaties of laws at -, But what is a 114 S.Ct. at 1499. courts Federal further elaborate. does 2254(a) says consequence”? Landgraf legal § “new authority under exercising their counts; it every change in outcome legal conclu- that not state courts’ disregarded the adversely party affected judgments on matters whether independent and reached sions Allen, change legitimate reliance inter Brown v. to them. presented issues 407-08, operation of the former law. 97 ests 104(2) of the 1996 Section L.Ed. 2254(d), § former redesignates the

Act A fact, findings of state courts’ deals with 104(3) Act, 110 2254(e); Stat. § Congress question Has answered the first that for a new adds directly. 104 of the Section at hand? Not appropriate treatment specifies the time provision. Act lacks an effective-date by state courts: legal determinations Congress addressed the contends that Lindh subject indirectly, by providing that the new corpus a writ of habeas application An (28 §§ 2261- Chapter 154 of Title 28 U.S.C. custody pursuant person of a on behalf 66), Special Corpus captioned Habeas Proce shall not judgment court of State Capital Cases and contained dures respect to claim granted with 107(a) Act, applies “to cases of the 1996 adjudicated the merits State enactment of pending on or after the date of adjudication unless the proceedings 107(e), 110 Stat. 1226. Act.” Section of the claim— submits, establishes, §§ 101 This Lindh (1) that was con- in a decision resulted apply pending to the statute do not to 106 of to, unreasonable trary involved an or cases. of, clearly Feder- established application by as determined al strong a Sec- is too word. “Establishes” States; or of the United Chapter 153 of Title 101 to 106 amend tions (2) that was based in a decision resulted provides one Act Nothing in the 1996 an unreasonable determination on temporal extent of way another for the or presented light of the evidence facts in they collateral attacks changes. govern Do proceeding. in the State April after committed arising out of crimes reargument Ap- before this case for that date? We set after 1996? Convictions the new whether in order to decide Collateral full court after that date? pellate decisions and, if it pending cases provision applies to The statute after that date? attacks filed and does, invited it affects them. We issues for Congress how those addressed silent. par- from supplemental Chapter briefs 153. There received not Chapter but of briefs ties, the benefit we implication. and we have had Should negative at most a and a Bar Association that Con- competing from the American inference is it? A draw judges amici cu- group of former federal an effective-date agree on gress could Chapter riae. to provision for the amendments judicial subject to resolution. leaving the I Congress overlooked Perhaps instead (the drafting §§ 101-106 Products, subject when 511 Landgraf Film v. USI Chapter the new Chapter 153 and changes to 128 S.Ct. Houses of Con- in different originated First lays sequence of issues. out times) recognized its gress at different Congress has decid must decide whether we —or clear thought answer so has, importance but applies; if it a new law ed to which cases unnecessary. was express provision If that the statute. only is to follow task superior? understanding way or the Which provided one Congress has not 2264(b) § implications contending that has “no negative of effective- when Potential before, urged most provisions have been function other than to cause certain of the date Rights recently Landgraf. The Civil Act inapplicable Chapter 153 revisions otherwise 3). “[e]xcept provides as otherwise apply retroactively” (Supp. Reply Br. provided, 2264(a) this Act and the amend specifically that, provides Chapter Section when by this Act shall take effect ments made applies, only a court shall consider “a that this upon The Court held enactment.” claim or claims that have and been raised arguably suggest language not even “does decided on the merits in the State courts” any application to conduct [the Act] unless failure to raise a claim was caused that occurred at an earlier date.” 511 U.S. one of three identified circumstances. Sec- added). at -, (emphasis at 1493 2264(b) subject “Following tion adds: review Act provisions Two other of the 1991 are (e) (a), (d), to subsections and of section says explicit. more One the statute properly the court shall rule on the claims case; apply particular ongoing does not to a (a), (d), Why only before it.” “subsections says that extension of the civil the other (e) Surely and of section 2254”? not because rights employers “shall not laws overseas retroactive, these are to be while subsections apply respect occurring to conduct be with (i) (b), (e), (f), (h), (g), and are not. If as of the enactment of this Act.” fore the date Lindh believes the reason to include Landgraf argued that these two anti-retroac- 2264(b) § § apply pend- is to it to tivity provisions established the rest of cases, ing then this must also be the sole applied preceding the 1991Act to conduct its 2254(a) referring § reason for —but enactment. Otherwise the two anti-retroac- 2254(a) Act, § is not amended the 1996 irrelevant, tivity provisions would be many while subsections omitted from the list try interpret courts laws to avoid both 2264(b) § were amended added redundancy. Landgraf, irrelevance and 511 new statute. at -, 1494. The Court 2264(b) conveys meaning only Section its conceded this but held that the nonetheless 2264(a). together § when read Subsec- effectively question. 1991 Act is silent (b) (e) tions of 2254 have been omitted at - - -, Id. 114 S.Ct. at 1494-96. It 2264(a) replaces from the list because unwilling negative implication draw rule with one more favorable to the states. provisions in two have been 2254(b) (c) codify Section the exhaustion just Although serted to make double sure. 2264(a) requirement, displaces majority [may Congress “a of the 1991 have] Chapter remaining 154 cases. The subsec- application, favored retroactive even will § Chapter tions of 2254 likewise don’t fit the majority does not become law unless it 2254(i), example, § 154 scheme. For added I, path § follows the charted in Article el. Act, says the 1996 that “ineffectiveness or (511 at -, 2 of the Constitution” 114 incompetence during of counsel Federal or 1496) is, yields S.Ct. at unless it a text —that post-conviction State proceedings collateral agreed signed by on both Houses and ground shall not in proceed- be for relief President. ing arising under section 2254.” 110 Stat. argu- Just so with the 1996 Act. And the Chapter question 154 addresses this by negative implication ment is weaker for directly 2261(e), § in the new 28 U.S.C. 110 the 1996 Act than for the 1991 Act. The 2254(i) making § incorporation Stat. of holding Landgraf Court’s made 2264(b) inapt. “when,” Section tells us not two sections of the statute irrelevant. Noth- argument but “which.” Lindh’s therefore hold, other, ing way we could one or the misses the mark: this section neither ad- 107(c) §§ § deprive about 101-106 could of temporal dresses other section’s effec- independent meaning. enough, True 28 by applying tiveness nor is made irrelevant 2264(b), § Chapter U.S.C. refers to 2254(d) § pending eases. 107(e) 2254(d), § § requires applica- so 2254(d) Chapter § capital comprises many tion of the amended 154 rules that Congress evidently cases within scope Chapter apply 154. But wanted to forth- we think Chapter that Lindh misunderstands with no matter what the courts made 24; at - - -, 1499 n. see also id. example, new 28 U.S.C. For §§ 101-106. 2262(a) stays of ex- automatic S.Ct. at 1501-04. provides

§ for attacks cov- during initial collateral ecution Prisoners on death by Chapter 154. ered operate “A statute does not ‘retro if stays April on even

row received merely spectively’ applied because it is in a stays prior law. under had denied courts arising antedating from conduct case litigation executions while Having blocked enactment, upsets expectations statute’s continues, Congress curtailed the time feder- Rather, prior on law. the court must based example, a may take to act —for courts al provision ask whether the new attaches new capital appeal appeals must decide eourt of completed legal consequences to events be reply days filing of the after the within Landgraf, fore its enactment.” 511 U.S. at 2266(c)(1)(A). § Section 28 U.S.C. brief. (citation -, 114 S.Ct. at 1499 and footnote 107(c) pending capital limit to applies that omitted). 2254(d) not attach Section does quite cases, step serves a different legal consequences filing peti- new way or the other a decision one function from corpus, although tions for habeas some other 2254(d) § non- application about take parts of the 1996 Act do this. We obviously Congress wanted capital cases. proba- Landgraf it that under a certificate of stays of execution and that both the ensure appeal April cause to issued before ble provisions Chapter the time limits — appeal, although authorizes an after Chapter counterparts in 153—ex- without April appeal depends- on a “certificate of possible. Noth- many cases as to as tended § Act appealability” under the 1996 any implications that decision has ing about 2253(e)), (amending § not 28 U.S.C. which 107(c) § conclude Chapter 153. We only changes requires also the name but question at hand. Sec- govern does identify appealable issue. court to Simi- provision. lack an effective-date tions 101-106 already larly, petition a second or successive legisla- to do when the must decide what We require prior pending April 24 does not silent. tion is § appeals approval of the court of under 2244(b)), § (amending see 28 U.S.C. B Calderon, 83 F.3d 285-86 Williams long-estab two Landgraf reiterates (9th Cir.1996), although application govern legislature rules that when lished 2244(b) § substantive standards the new first, normally apply the law is silent: courts eligible for relief is a to determine who is decision; second, in force at the time question, which the court ad- more difficult application if not use the new law court does Parke, separately today in Burris v. dresses appeals Each side be “retroactive.” would (7th Cir.1996). F.3d 465 con propositions. one of these 2254(d), 2254(d) provision today’s For a such rule of deci tends that rejoins federal and state affects the relation between applied. Lindh sion and should courts, regulating the details of rather than would be “retroactive” to the petition was litigation, on which the prevailing. the date it reduces his chance extent any important than the filed can’t be more that he is entitled to a writ He also contends 2254(d) in Land on which the suits were filed corpus or not date of habeas whether Co., 7 F.3d 552 graf Mojica v. possibility of an Gannett applies, but he uses the Cir.1993) (en banc). (7th Landgraf of retroactivi effect as the definition adverse Rights Act of definition, the Civil not do—for it Court asked whether ty. it will As a employment deci rule, applied to turning it into 1991 could be obliterate the first would A lawsuit preceded that the statute. applies law in sions something like “a court governed by 1990 concerning conduct is it is time of its decision whenever force at the began, Land- along.” no matter when the suit in force all the same as the law (as Mojica, 7 F.3d held in graf held we had Landgraf explicit that uneon “[e]ven was 558-59). Roadway also Rivers v. may at See troversially prospective statutes unsettle Inc., 298, 114 S.Ct. past Express, impose burdens on expectations and (1994). parallel ques- - n. 24, 114 The at 128 L.Ed.2d at conduct”. may applied prisoner Act the 1996 overruled after the commenced his tion is whether pre- or state court decision when the crime collateral attack. The Court held 24,1996. April prisoner rely that the ceded could not on the over- (or ruled decision obtain relief because his argue Understandably, Lindh does not so, lawyer could), failed to do when he even that, deciding whether to commit a when though disappearance its out- reversed the so, one), (and, if which he relied on the crime come of his case. The Court’s discussion is availability of 2254 that of the version quoting: worth in 1988. Under the Ex Post on the books holding The dissent contends that this people charged with crime Facto clauses enforceable, retroactivity inconsistent with the an expectations rule powerful, have Lane, Teague nounced in apply that to legal about rules 1060, 1075, 103 310 [109 S.Ct. L.Ed.2d 334] change conduct. But the 1996 Act does not think Teague but we otherwise. any defining penalizing the rules crime. proposition Moreover, stands for the that new consti having judicial lost the state’s amendment, procedure tutional rules of criminal will system cannot before the Lindh applied not be announced or on collateral successfully argue change of law acknowledges, review. As the dissent judicial process. By any affected the stan- retroactivity dards, rule was motivated a re the former version of 2254 was spect strong for the States’ interest in the prisoners than more favorable to the current finality convictions, one, of criminal prospect and the and the of more intensive re- recognition pe that a State should not be view federal courts have made state relying nalized for on “the to constitutional courts more attentive claims under federal prevailed standards that light to the time the law. Lindh wants us cast a darker original' proceedings place.” took judges prospect “The state assume —to principle plenary ‘new rule’ therefore federal review made them inatten- validates rea sonable, good-faith interpretations of rights, they tive to federal because exist then (to ing precedents made state courts even appear tough improve could on crime though they contrary are shown to be knowing reelection while prospects) McKellar, later people they decisions.” Butler v. prison confine in would eventual- ly go. any [110 S.Ct. empirical be let He does not offer (1990). L.Ed.2d support believing judges 347] state wrongfully imprison people to further their A petitioner federal habeas has no interest careers, judges own and in Wisconsin who finality judgment of the state court proclaim willingness give defendants extra indeed, under which he is incarcerated: rights difficulty being have had no retained. very purpose petition of his habeas Shirley Abrahamson, Emergence S. judgment. overturn that Nor does such Law, State Constitutional 63 Tex.L.Rev. petitioner ordinarily have claim of appropriate It would not be judicial past precedent reliance on as a presume the Justices of the corresponds basis for his actions that poorly Court of Wisconsin treated Lindh be- the State’s interest quota- described in the they anticipated independent cause Butler, tion swpra. The result of review. these differences is that the State will Teague benefit from our decision in some regulate Section pri does not cases, pe- federal habeas while the habeas mary conduct. Instead it makes the initial n not, titioner will not. This result is as the judgment prisoners more Do stable. have it, dissent would have a “windfall” for the legitimate expectations scope about the State, perfectly logical but instead is a question collateral review? This is a Teague limitation of to the circumstances Supreme Court addressed in Lockhart v. gave which rise to it. Cessante ratione Fretwell, 364, 838, 506 U.S. 113 S.Ct. 122 legis, ipsa cessat et lex. (1993). prisoner L.Ed.2d A 180 called his lawyer (citations failing 372-73, 113 for ineffective to take full ad 506 U.S. at S.Ct. 844 vantage omitted). appellate words, of an opinion that was In legal changes other

865 Council, 184, 201-02, courts to set tral Trades 257 U.S. 42 willingness reduce 72, (1921); 75-76, Duplex to ex- 66 189 presumptively apply S.Ct. L.Ed. judgments aside 443, Printing Deering, v. isting Press Co. 254 U.S. judgments. 464, (1921), 41 S.Ct. 65 L.Ed. 349 all practice. The Su historical This is the favorably Landgraf, in discussed 511 U.S. at consistently statutory preme applies -, 114 S.Ct. at 1501. law normal Current attack to changes the law of collateral in ly governs “speak power when to the statutes cases, perforce newly filed and pending rights of the court rather to the than judgments en relief from cases that seek obligations parties,” Republic Nation the statute’s enactment. tered before Bank, States, Miami v. 506 al United - U.S. -, Turpin, 116 S.Ct. Felker v. U.S. 99-100, 565, 80, 554, 113 S.Ct. 121 L.Ed.2d 2333, de 827 the Court 135 L.Ed.2d (1992) (Thomas, J., concurring) (quoted 474 standards, cided under the 1996 Act’s a case at-, approval Landgraf, 511 though preceded the conviction even 1502). -, 1499, 114 S.Ct. at doWe not (The cor petition for habeas amendments. 2254(d) § suggest power reduces 1996, 24, pus April filed after in Felker was subject-matter juris the court in the sense of already explained why the date but we have diction, in 28 which survives intact U.S.C. Thirty dispositive.) cannot be petition 2241; may § a state waive the benefits of years Congress made amend ago extensive 2254(d), although § provisions other 153, ap Chapter which the Court ments Act, as 1996 such the revised exhaustion much plied under review without so to cases 2254(b), §in requirement suggest that coun remarking on the date of enactment. inattention to the niceties of federal sel’s 124-25, 122, 89 Yeager, 393 U.S. Smith v. practice does not forfeit the benefits the law (1968); 278-79, 277, 21 246 S.Ct. L.Ed.2d entity. on the state as an See also bestows LaVallee, 239, 234, 88 v. 391 U.S. Carafas (7th Welborn, Eaglin v. 57 F.3d 498-99 (1968). 1556, 1560, 20 L.Ed.2d bane) Cir.1995) (en (holding that a court of collateral amendments rules Earlier Teague on the decide case basis of even if brought pend attack likewise were to bear lawyers possibili the state’s overlooked that Schilder, ing v. cases. Gusik rather, ty). point, Our is that amended 4, 95 n. 151-52 & n. 131-33 & 2254(d) designed § to curtail collateral re (1950), implements the exhaustion L.Ed. 146 augment finality judgments, and view requirement introduced amend the 1948 strongly implies application existing Accord, Burford, ment Darr v. judgments. 94 L.Ed. C language of the amendments litigated Lindh and the State Wisconsin application. Re implies likewise immediate forums claim in the state’s the constitutional 2254(d) empower call does not a court ensuing to us. presents To leave to issue the writ. Instead it issuance forbids judgment force—and to leave all application not be the writ —the “shall governing primary rules intact —is conduct granted certain have been unless” conditions Landgraf “retroactive” uses not the sense a court prohibition prospective: met. The term, and the amended tomorrow, must unless.... the writ issue presumptively applicable. therefore We re- The difference between an authorization disagree contrary spectfully with the conclu- prohibition respect. is one we must Hannigan, Edens v. 87 F.3d sions of Cir.1995). (7th Ivey Harney, 47 F.3d v. (10th Keane, Cir.1996), Boria v. 1111 n. It is the sort of difference that the (2d Cir.1996). 90 F.3d 36 holding that Court has relied on when appli ability changes affecting judicial possibility law There remains a legal new supply prospective govern pending relief cation of the 1996Act “attach could Beals, consequences” to than the crime E.g., Hall v. events other cases. (1969); 200, 201-02, judgment. legal processes L.Ed.2d and the state’s Consider, filing Tri-City example, dead- Cen- how American Steel Foundries applies Supreme Act state of the law: he did not ask the § of the 1996 line in statute, the new existing judgments. Under of the United States to review the Court 2244(d), only petitioner Wisconsin, § a has one Supreme U.S.C. decision of the Court completion of direct year review and he did not file a collateral attack state attack; there was no collateral commence a of a court. Let us start with the omission prior although limit in corresponding petition for certiorari. Lindh observes that 9(a) Governing Rules Section of the Rule Court, Supreme engaged in direct review District in the United States Cases § under 28 not have been U.S.C. would amorphous an standard Courts established (and not) 2254(d). by § That still is affected prisoner A to the state. prejudice linked enough, but the former is true even under transgressing without a decade could wait petitioners § text of faced obstacles - Thomas, 9(a). Lonchar Rule See (such requirement, spe- as the exhaustion -, L.Ed.2d 440 protection findings of cial of state courts’ way attack under got his collateral Lindh doctrine) fact, Teague that did not and the Supreme year after the Court of less than a apply § A on direct review under suppose his case. But Wisconsin decided exercising appellate jurisdiction years, filing in 1993 rather had waited two now, authority had more 2244(d) apply § than we now 1992. Would hearing than a court a collat- correct errors A petition? Not at all. and dismiss by- eral attack. Defendants state cases prisoner’s filing perhaps to defer decision — pass opportunity to seek certiorari not research, legal waiting doing while while they expect un- because favorable treatment Supreme for the Court decide case § they recognize der but because influence the selection of issues —is the could Court of the United States sort of event to which the amended statute rarely grants requests. petition such “A for legal consequences.” “attach new would granted only a writ of certiorari will for Courts treat a reduction the statute of compelling reasons.” R. 10. As only. limitations as a rule for new eases matter, practical to obtain direct review 29, 114 Landgraf, 511 U.S. at-n. S.Ct. at only Lindh would have had to establish not although 1502 n. 29. And no decision of the importance question the national of the question Court addresses the di hand, but also that the decision of the Su- rectly, we do not doubt that the Court would preme interpreted Court of Wisconsin give plaintiff files after the who enactment way disagreeing in a Constitution get post-amendment a reasonable time to interpretation highest court of another underway. litigation A new statute is unlike state, appeals. or of a United court of States statute, judicial existing construction of an 10(b). argue S.Ct. R. Lindh does not his Pleva, Lampf, Lipkind, Prupis which after & presents legal question; case such an abstract Gilbertson, Petigrow v. argues instead he that the state’s courts mis- applied settled law to the facts of his case. Distilling Georgia, Jaimes B. Co. v. Beam prospect Such a contention had no in 1991 of 2439, 115 receiving an audience in the (1991), governs pending all cases. Section States, gave up United and Lindh 2244(d) enough is short that the “reasonable nothing by deciding of value not to seek April one-year time” after and the Lightning petition certiorari. can strike a coalesce; statutory period reliance interests certiorari, but Lindh’s would not have lead us to conclude that no collateral attack good lightning been a rod. by April filed be dismissed parallel provision under and the As for the omission of a collateral by § added to 28 U.S.C. 105 of the attack in state court: Wisconsin would not 1996Act. one, have entertained had Lindh it. filed permit

But Lindh Wisconsin does not an inferior court lacks reliance inter nearly strong. highest est His able to review a decision of the state’s counsel (rather, steps prisoner A identifies two he took court. Wis. Stat. 974.06. who omitted) reason, supposed prior reliance on can establish an unusual such as an

867 Safety may require it.” Lindh does not cite law, may wage a collat change of intervening authority proposition, state’s any after the for this even Wisconsin eral attack we merits, addressed think If the the contention feckless. new Supreme Court Escalona-Naranjo, 185 Wis.2d Writ, v. “suspends” see State it does Great Lindh does 168, but 157 25, 1996, 517 N.W.2d April for cases filed on so no less if he exception and, this qualify for not pending April 24. Yet to than for cases — open to him. does, remain courts the state alter standards on which writs issue Supreme Court that the Lindh contends “suspend” privilege of the writ. not to ques one factual misunderstood amendment made Felker so holds for another at the Uni privileges Roberts’ tion: whether 1996Act. Hospital had been sus versity of Wisconsin pre-trial was the The writ known 1789 trial. The court wrote by the time of pended power a to the executive’s to hold suspen a not show such the record did contest 173, says sion, captive, prevents Lindh device that arbi person 468 N.W.2d so, important, If and if this is wrong. trary trial. Ex Boll parte this is detention without rehearing in sought Cranch) Swartwout, (4 75, have Lindh could 2 man & 8 U.S. factual have introduced court or could McCardle, state (1807); parte Ex 73 L.Ed. 554 district position his in the federal support for (6 Wall.) 318, (1868); 18 L.Ed. 816 Ex U.S. neither, raising conten He did court. 241, 734, Royall, 117 parte S.Ct. supplemental time for the tion first (1886). Zant, McCleskey v. L.Ed. 868 See had been set for after the case briefs filed 1454, 1461-62, raised so belated rehearing en banc. Issues — (1991); Delo, Schlup v. forfeited; sup deny the motion to ly we are -, -, 115 S.Ct. delay Lindh’s cannot plement the record. (1995). power en The thus Act, ample had the 1996 as he attributed to ability did not include the to reexam shrined of events to make his version opportunity possessing judgments rendered courts ine § 2254 and current under both former known (7 Kearney, jurisdiction. parte Ex 2254(e)(1), (the 110 Stat. amended Wheat.) 38, (1822); also 5 L.Ed. 391 see dispute a factual petitioner a authorizes Oaks, Corpus Habeas in the Dallin H. court, although by a state determination 1776-1865, 32 U. Chi. L.Rev. States — convincing requires clear and proof of error (1965). original practice, 244-45 Under therefore, evidence). Lindh’s again, Once judgment rendered “a of conviction by the not affected litigating decisions were jurisdiction was general criminal §of between the versions difference legal confinement was proof conclusive rights party “impair The 1996 Act does of a writ”. prevented ... issuance [and] acted, party’s increase a possessed when Hayman, 342 U.S. United States conduct, impose new liability past (1952); L.Ed. 232 see already respect to transactions duties with Wall.) (8 parte Yerger, 75 U.S. also Ex at-, completed.” Landgraf, 511 U.S. (1869). 101, 19 L.Ed. 332 gov- law therefore at 1505. The new conten- of Lindh’s erns our consideration founding-era evidence historical tions. prevailing that state courts suggests a view protecting federal adequate D fora for were ' Farrand, 1 Records rights. Max afterthought, Lindh Almost as an 1787 124-25 Federal Convention of (with support the American Bar Asso (and is) assumption, there was Based on this curiae) ciation, asserts that as amicus mount constitutionally right to no enshrined scope of collateral review in the alteration judg a state court’s a collateral attack on petition under prisoner has filed after and, a Article III courts in the inferior ment I, 9,§ Art. cl. of the Consti 2254 violates judg that state court fortiori, no mandate of Habeas Privilege of the Writ tution: “The (or erro embracing questionable even ments suspended, unless when Corpus shall not be neous) Consti- interpretations of the federal public Invasion the of Rebellion or Cases by the inferior Article III II reviewed tution be courts. 2254(d)(1)provides may Section that a writ not issue unless the state court’s decision judgments accordingly review of Collateral to, contrary “was or an involved unreason- control, legislative subject as the first of, application clearly able established Feder- by who Congress, those wrote and dominated law, by Supreme al as determined Court Constitution, recognized. See Ex ratified the of the United States”. What does this mean? (3 Pet.) Watkins, 193, parte 28 U.S. 7 L.Ed. judicial congruent Is it with the role estab- (1830). Judiciary 14 of 650 Section Act by lished Article III of the Constitution? any inquiry by the prohibited 1789 federal And how does it affect Lindh’s contentions? custody. 1 propriety into the state courts Dorr, (3 How.) A 82; parte 44 see Ex U.S.

Stat. (1845). 103, Congress 11 L.Ed. 514 first Report The Conference on the 1996 Act power general of collateral review created says “requires § deference to 385, 1867, 14 repealed and then Stat. the determinations of state courts that are 44, to,’ year, step ‘contrary 15 sustained in next Stat. neither nor an ‘unreasonable of,’ (Limited 1833, application clearly established federal power's McCardle. creatéd 104r-518, H.R.Conf.Rep. Cong., law.” 634-35, 104th protect federal officers Stat. (1996). passage, 2d Ill together Sess. This interference, 1842, from and in state Stat. floor, with similar comments on the has led 539^10, nationals, foreign protect did not unproductive among parties to an debate cases.) gen affect the bulk of criminal and the amici about what “deference” en 1885, power eral was not reestablished until why legis tails. It is a wonderful illustration 437, subject 23 Stat. been to fre history lative so often misleads —for the word Congress quent by reinterpre revision —and appear “deference” does not in the statute. by Supreme tation Court —ever since. It does tell us to “defer” to state deci judgments Collateral review of entered after sions, as if thing the Constitution means one opportunity litigation full for is the work of in Wisconsin and another in Indiana. Nor Century. the 20th Whether the first occa does it tell us to way treat state courts the Allen, sion came in 1953 with Brown v. or agencies. we treat federal administrative belongs Waley that honor instead to v. John Deference after the fashion of Chevron ston, 101, 964, 316 U.S. 62 S.Ct. 86 L.Ed. U.S.A Inc. v. Natural Resources Defense eyen (1942), Mangum, or Frank v. 237 Council, Inc., 837, 104 2778, 467 U.S. 582, (1915), U.S. 35 S.Ct. 59 L.Ed. 969 (1984), depends L.Ed.2d 694 delegation. the rule that a writ stretched Barrett, Adams Fruit Co. v. 494 U.S. convicting “juris issue when the court lacks (see (18 parte Lange, diction” Ex Congress delegate interpretive did not either Wall.) 163, (1874)), 21 L.Ed. 872 does not power They executive to the state courts. question matter. Justices debated powers law, exercise under their domestic West, Wright by constrained the Constitution of the United jurisdictions as a matter of States. “Deference” to statu tory bound those constraints is not interpretation. “Judgments sensible. about the subject, pursue We see no need to how proper scope ‘normally of the writ are ever, - because our task is to construe the Felker, Congress to make.”’ at statute, Lonchar, enacted not to legislative construe its -, 2340, quoting history. - at-, Any S.Ct. at 1298. suggestion Suspension Clause for- 2254(d)(1)— phrase' The first every bids contraction of powers be- authorizing a federal court to issue the writ by Congress in expanded stowed “contrary when the state court’s decision is the 1948 and 1966 amendments to clearly to ... established Federal Suspension untenable. The is not a Clause determined Court of the States”, ratchet. preserves United rather than under- independent would not issuance a writ interpre- courts’ authorize under mines federal 2254(d)(1). courts are to ex- courts must knuckle power. Federal free State un- tive Court, legal independent opinion on all der to press decisions of but an if, for example, ease. So not of this Lindh must be able issues in the court. So had point-to held an Court Wisconsin authoritative decision Su- Clause does not entitle preme Confrontation in order to secure writ. He cross-examine witnesses to es- defendants to has Davis and Van Arsdall. We therefore bias, Davis v. Alaska would tablish then potentially not need shoulder the difficult “contrary ... decision is to show that the gloss determining appellate task of when an law, clearly Federal as deter- established Supreme on a decision of Court has the so Supreme of by mined the Court the United departed wellsprings far as to be from its the States”, arguments if decent could be even law, “real” source of or when the chain of the that Davis misunderstood constructed reasoning long so that the stretched rule Section re- Confrontation Clause. “clearly cannot be established” as called of give opinions courts’ a quires us to state the time the state court rendered its decision. carefully listen to respectful reading, and to presented questions These are the sorts of conclusions, the court their but when state standard, by Teague e.g., Gray the v. Nether- - legal question, it is the law “as addresses a land, -,-, U.S. 116 S.Ct. by the Court of the determined 2083-85, (1996); 135 L.Ed.2d 457 Saw- prevails. United States” Smith, 227, 236, yer v. U.S. (1990); prac- from This is a retrenchment former Saffle Parks, 110 S.Ct. U.S. tice, the United States courts which allowed (1990) (“compelled by rely appeals jurisprudence of to on their own existing “clearly precedent”), and the estab- the to that of Court. addition 2254(d)(1) language unlikely pose lished” to is differ- § novelty portion The of challenge. interpretive ent kind of “contrary part but to” the reference the to as determined the Su- “Federal 2254(d)(1) The a twist to new adds the (emphasis s” preme United State the of however, complexities Teague inquiry, added). principle Teague This extends the only the explicitly because it identifies Su- by limiting of doctrine the source on which “clearly preme Court as the font of estab- may rely addressing the federal court language lished” rules. could be un- This however, not, application It does for a writ. view adopt derstood an unfortunate indepen- purport to limit the federal courts’ applies unitary the model of the executive authority respect with interpretive dent department judicial department to the as questions. judiciary, well. Such view of the which explicit runs counter textual differ- a writ application An an vesting clauses of ences between the Articles grant a federal court invitation to III, Article assigns II and to the inferior III requested upon relief its review a criminal analogous a role to that of an execu- courts under law. conviction and confinement state - agency. perspective, flawed tive From this Felker, at-, agencies inferior are as courts seen authority 2339. to issue writ The authority judicial department de- parte statute. conferred on courts Ex power from in the rived vested Swartwout, supra. Bollman & It is doetri- Court. nally statutory grant from the distinct

jurisdiction controversy, to decide a case judicial power The Constitution vests just e.g., Congress § 1331. Yet 28 U.S.C. Court, supreme “in one such inferior jurisdiction of the inferior restrict Congress may from time to Courts as the courts, may prescribe so it limits Article III Ill Art. time ordain and establish.” granting extraordinary relief quite vesting III is of Article clause of habeas provided by corpus. the writ vesting clause of different from Article II, says Power

A the “executive between decisions the Seventh conflict in a United Supreme Court of shall vested President Circuit and the immunity By right analogy. Principles are Art. II 1 cl. 1. America.” States single prospec- designed in Article II to a to draw the line between grant virtue of department damages governmental the executive person, agencies of tive relief and authority hand, on behalf of the body, payment from the exercise executive on the one States, Myers v. United employee, other. pocket public President. See of a on the 2254(d)(1) 71 L.Ed. 160 entirely serves an differ- Section then, Perhaps, unreason- ent function. contrast, given by judicial power is language under- able-application should be Arti- to each of the inferior the Constitution Teague. as another variation on Recall stood Accordingly, when these III courts. cle Teag- quotation in Lockhart from Butler: jurisdictions, they ex- courts act within reasonable, good-faith interpre- ue “validates judicial directly, though power ercise the precedents existing tations of made state revisionary jurisdic- subject limits of though they shown to be courts even are the Article III superior within tion of a contrary later Section decisions.” rely on hierarchy. inferior courts do not 2254(d)(1) generalizes principle of re- this authority for their to Supreme Court the spect by withdrawing the “later decisions” judicial power, power for this is exercise the proviso. directly by they III Article once given them established, ordained, provided and are leeway much the “unreasonable How does jurisdiction by Congress. application” language ques- create? on None here, stop to Lindh would like us interpretation. of It not authorize tions does changed § has not to announce that permit from or state courts to deviate the case, way to his and in material the law acting within Constitution. Federal courts that, proceed to decision. We cannot do to jurisdiction always to are entitled inter- ingredient of Lindh’s is because one claim pret independently. law Section the The Confrontation not well established. 2254(d)(1) as it no more than we read does (and principles the of Davis Clause therefore regulate relief. It tells federal courts: Arsdall) governs at trial of the Van off, judgment place in Hands unless the merits, sentencing. disposi not at Is the but grave enough based on an error to be called phase tional of a bifurcated trial closer to the (see practice “unreasonable.” Historical merits, sentencing? to We return to that above) Part I.D likewise counseled restraint Moreover, question in Part II.C. we do not limiting in use of the writ. Other rules “contrary language ...” to autho read the to remedy abound. We have mentioned official errs, rize issuance of a writ whenever a court cases, immunity in which federal courts re- prefer; as Lindh and the amici that would interpretive power, tain full but from forbear (“unreasonable applica vitiate the second Consider, too, using remedy damages. tion”) 2254(d)(1). clause of The two claus Leon, the doctrine of v. United States separate es have functions. We must ensure 82 L.Ed.2d 677 S.Ct. Court ad (1984), exclusionary under which the rule legal principles heres to articulated apply gathered does not to evidence in rea- But the United States. warrant, if sonable reliance on a search even meaning in dispute when the lies not the warrant was issued in violation of the Constitution, a application but its to Constitution. such cases the court retains is, particular set of facts —when (but exercise) identify power need not to phrase, question “mixed standard law the state court’s violation of the Fourth 2254(d)(1) grant restricts the fact” —sec. Amendment, 925,104 see 468 U.S. at relief to cases in collateral (and remedy suppression but ap state’s decision reflects “an unreasonable trial) new is withheld unless the violation is plication law. of’ the obvious, or the officer’s reliance unreason- applica- inevitable-discovery to an “unreasonable able. The The reference doctrine simi- larly specifies tion law” sounds like the official- of Federal situations which constitu- (established immunity question by independent liti- tional constitutional-tort violation courts) gation, quite but we doubt that review the federal does lead upsetting thing plenary a criminal less than remedy of convic review of all conten Williams, 431, 104 argument, tion. Nix v. tions based on federal law. Their (1984). 2601, 81 L.Ed.2d 377 distinct Lindh’s invocation of the Sus Clause, pension “judicial is that the Power of question of this answers the None (Art. 1) power the United States” Ill is the great as to “unrea departure is so when interpret independently. They the law sonable,” question lacks an abstract Madison, (1 rely Marburg answer, just as courts have been unable to Cranch) 137, 177, (1803) (“[i]t 2 L.Ed. 60 phrases give precise content such as emphatically province duty Application of “abuse of discretion.” Lean judicial is”) department say what the law required inquiry therefore has careful one and modern statements such as Plaut v. time, case at a and we do not see how - Farm, Inc., Spendthrift U.S.-,-, 2254(d)(1) application of can be much dif purposes enough ferent. For current it is - and Gutierrez de Lamagno, Martinez v. question say that when the constitutional is a -, -, degree, matter of rather than of concrete entitlements, a “reasonable” decision By posing state court must be honored. argument If this line of the amici mean question the state court’s whether treatment give judgment that federal courts must with- 2254(d)(1) “unreasonable,” § requires regard legal public out views other actors, federal courts to take into account the care regard and without to the resolution with which the state court considered the of litigation, contested issues state then subject. 2254(d). argument beyond § reaches far It would mean that deference administra- Questions degree questions about —like unconstitutional; tive law under is Chevron proper use of “discretion” —lack answers respect Congress that the accorded to when “right” “wrong” may to which the labels speaks questions (e.g., on constitutional subject painted be attached. When the is - U.S.-, City, Wisconsin v. New York grey, in contrasting shades of rather than -, 1091, 1100-01, 116 S.Ct. 134 colors, responsible, thoughtful a answer (1996); States, L.Ed.2d 167 Weiss v. United opportunity litigate reached a full after 163, 177, 752, 760-61, 510 114 U.S. S.Ct. 127 adequate support judgment. Think of (1994); 1 Dewey, L.Ed.2d Donovan v. 452 Speedy Trial Clause the Sixth Amend- 594, 603, 2534, 2540, 101 S.Ct. ment, Wingo, which after Barker v. 407 U.S. (1981); L.Ed.2d 262 v. United States Wat- 514, 2182, 92 S.Ct. 33 L.Ed.2d 101 son, 411, 416, 423 U.S. 96 S.Ct. prescribe long a does rule for “how is too (1976)), abandoned; L.Ed.2d 598 must be long” but rather establishes a list of factors and that the Full Faith and Credit Clause to consider. The Court of the (Art. 1)§IV conflicts III. with Article This United States sets the bounds of what is position would demolish numerous doctrines “reasonable”; a state decision within those in the law of collateral attack that no one respected limits must be because it is —not (until now) supposed pose has constitutional right, or because federal courts must aban- difficulties. independent decisionmaking, don their but grave remedy upsetting because the a Powell, 465, Consider Stone v. 428 U.S. judgment judicial system entered another 482, 96 S.Ct. 49 L.Ed.2d 1067 litigation grave after full is reserved for occa- (1976), which holds that a has when “State principal change sions. That is the effected provided opportunity an for full and fair liti- 2254(d)(1). § claim, gation of a Fourth Amendment require does not that a state Constitution

B prisoner granted be federal relief on habeas ground The American Bar Association and a in an un- evidence obtained group judges, appearing of former federal constitutional search and seizure was intro- 2254(d)(1) curiae, contemplates— amici contend that at the trial.” duced Stone requires any- requires unconstitutional to the extent it indeed it a federal court re- —that party a and the must be substituted as issuing a writ under 2264 even States from irain if that turns out to driver dismissed —even court is convinced the state though the compensation. deprive the victim though and even judges erred on the Smith, 160, 111 v. 499 U.S. United States ease. the outcome of the On error altered (1991). 1180, 113 L.Ed.2d 134 Even S.Ct. has occasions several Constitution, may on the there claims based grounds that on as a doctrine treated Stone Meyer, rights remedies. FDIC v. be without to other sub could be extended prudence 996, 1005-06, 471, 484-86, 114 510 U.S. S.Ct. not so extended jects (although the Court has (1994); v. 127 L.Ed.2d 308 Schweiker Chil it). 339, Farley, v. 512 U.S. See Reed 2460, 412, icky, 487 U.S. 108 S.Ct. (1994) (claims 2291, 129 L.Ed.2d Lucas, (1988); 462 U.S. L.Ed.2d 370 Bush v. Agreement on Detain- under the Interstate (1983); 2404, 103 S.Ct. 76 L.Ed.2d 648 Williams, 680, 113 ers); v. Withrow Wallace, Chappell v. (1993) (claims 123 L.Ed.2d too with So Arizona, based on Miranda 2254(d)(1). Congress power to revise lacks (1966)). 1602, 16 If meaning require or to the Constitution adopt Stone and consider ex Court could judges interpreta to “defer” creating gap scope, a between the tending its judi by state courts. Once the tions reached writ, obligation to issue a “merits” and the brought presen power cial to bear by amending the same Congress then do controversy justiciable case or tation of § 2254. statutory jurisdiction, grant within disjunction Teague likewise establishes independent interpretive au federal courts’ meaning of the Constitution between constitutionally impaired. thority cannot corpus. judg- If the use of habeas a state Regulating cry limiting relief is a far ment becomes final and the courts, interpretive power of the howev a new rule of constitutional Court articulates er, adjust Congress ample power to petition for collateral law then remedy the circumstances under which the in 1994 will fail —not because the review corpus deployed. of habeas is the writ merits, “right” on the but state court was rights This distinction between and reme some errors of constitutional law do because Every day, dies is fundamental. courts de support collateral relief. Section they judgments cline to disturb know 2254(d)(1) principle codifies and extends the wrong. principal are This is the function of Teojgue, Teague if is consistent and judgments. Suppose A B the law of and are 2254(d)(1) III, § then as we have Article so lawsuit, plaintiffs they in the same construed it. lose; wins, appeals A and while B does not neglect curiae The amici basic appeal. It that the has now been established recognizes: Congress distinction that Plant judgment wrong. May against B is B file a particular cannot courts how to decide a tell victory? new suit to obtain the benefit of A’s case, may make but it rules affect Department The answer is “no.” Federated - classes of cases. U.S. at - - Stores, Moitie, 394, 101 Inc. v. 452 U.S. S.Ct. -, 1452-53; 115 S.Ct. at see also Robert 2424, Full Faith 429, Society, son v. Seattle Audubon 503 U.S. designed and to make this Credit Clause 441, 1407, 1414-15, 112 S.Ct. 118 L.Ed.2d 73 result a matter of constitutional entitlement. (1992). Congress say cannot that a court today preclu although And we think of claim $35,000 being (res must award Jones for run over judicata) specialty as a of civil sion truck, postal may prescribe maxi but century it is in this that courts have cases, categories mum damages for Carter judgments treated civil and criminal differ States, (7th v. 1141 United 982 F.2d Cir. ently. Recall the discussion in Part I.D - 1992), provide Felker, at -, that victims of torts 116 above. See also U.S. 2340; Bator, employees punitive Finality federal cannot receive S.Ct. at Paul M. damages, may Corpus It see 28 U.S.C. es Law and Federal Habeas Criminal Prisoners, acting tablish that if the Harv.L.Rev. 465- driver within State 76 (1963) history). scope (tracing the employment, of his the United 99

873 coping 42 1983 and Bi and when with federal In suits under U.S.C. law is not Agents, 403 geographically, Unknown Named uniform vens Six see Eckstein v. Bal 1999, 29 619 Investors, (7th L.Ed.2d 1121, 1126-27 U.S. cor Film 8 F.3d (1971), frequently rule for the defen courts Cir.1993); Co., Olcott v. Delaware Flood 76 though plaintiff right dant even (10th 1538, 1544-48 Cir.1996). F.3d See also employees on the merits. Public receive Schein, Lehman Brothers v. legal questions benefit of the doubt on and 390-91, 1741, 1743-44, 40 L.Ed.2d damages only legal right pay must when the (1974); 215 Wright, Charles Alan Arthur R. sufficiently has been well and established Miller & Cooper, Edward H. 17A Federal particularized that a officialwould reasonable (2d 1988), Practice and Procedure 4248 ed. doing have understood what he is vio discussing a circumstance under which a right. Creighton, lates that See Anderson v. directly state court’s decision is binding in 97 S.Ct. litigation: ques the certification of a (1987); Rice, L.Ed.2d 523 Auriemma v. 910 tion of law ato state court. III Article does (7th Cir.1990) (en bane). F.2d 1449 Section system not establish a judges under which 2254(d)(1) approach creates a related and is always the inferior federal courts must ren no less with Article III. consistent Even judgment regard der without to the conclu cases, criminal courts sometimes enforce de sions of other courts. they cisions would not have made the first Stone, Leon, Nix, Teague, Shortly instance. before changed Brown v. Allen cases, e.g., rules, harmless-error Brecht v. Abra Learned Hand could write with confi- hamson, dence that (1993), among many are illustra upon corpus habeas a federal court does gap having good legal tions of the between not in sense review the decision in the argument winning custody. release from Here, state courts. for example, the Dis- joint

X Yand are indicted for a crime. X properly trict could not have issued pleads guilty; pleads jeopardy Y double writ, no matter how erroneous the wins, whereupon X claims that his sentence judge thought judge’s had the state conclu- illegal and asks for relief. United States v. sion the evidence did not out a make Broce, prima facie case of the deliberate use of X L.Ed.2d holds that must serve perjured testimony. The writ was limited sentence, plea guilty his because the rights assertion the relator’s un- arguments retrospect waives even that in are Amendment; der the Fourteenth and due known to be correct. process of law does not mean infallible 2254(d)(l)’s requirement Section that process of law. If the state courts have law, judges apply “Federal as determined honestly applied pertinent doctrines to States”, Supreme Court of the United ability, they their the best of have accord- understanding rather than their own rights. ed to an accused his constitutional law, is consistent with hierarchical nature Foster, (2d Schechtman F.2d judiciary. Judges of the federal of the inferi- Cir.1949). expression longstand- This implement or courts must the views of their ing custody, distinction unlawful between superiors, many from which follows that supported corpus, which a writ of habeas decisions of the lower courts will be inconsis- trial, procedure in unlawful the course of a judges tent with the conclusions their would not, which did reflected the law of the United reached, by precedent. have if unfettered Congress States until 1953. has elected to Applying, predicting, even the work of other hardly very move back that direction —but judges, reaching independent rather than far, preserving independent conclusions, federal review up makes the bulk of the work of law, questions pure subjecting on judge only interpreting a federal when —not Court, questions of law and fact to mixed review decisions but also diversity jur- reasonableness. We would to cast his- deciding when cases under the have isdiction, decision, tory say Tompkins, R.R. v. to the winds to that this see Erie (1938), respects fully-litigated judgments un- 82 L.Ed. 1188 under the seriously wrong, of’ federal because gone cation has court the state

less judges “trial retain limitations. Confrontation Clause transgresses constitutional impose limits latitude ... reasonable wide Bar fur American Association’s The on concerns on such cross-examination based (which joins) Lindh that the argument ther harassment, about, things, prej among other of the Fifth Amendment Due Process Clause issues, udice, confusion of the the witness’ unper from amendment § 2254 protects repetitive or safety, interrogation or that is that because ABA contends suasive. Arsdall, 475 only marginally relevant.” Van traditionally have conducted “courts 679, 106 at 1435. U.S. at rulingfs] on courts’ [state] review of plenary issues”, a re to such legal the entitlement rejoins that the first of these Lindh right” pro a “fundamental become view has arguments because the is untenable component of due by the substantive tected on did not decide the case Court Wisconsin this “tradi analysis. To establish process ground. Recall the amended role, ABA cites no case before tional” 2254(d) begins by saying petition that a Alabama, Norris v. any respect granted must not be “with that is a decision 79 L.Ed. adjudicated claim that was on the merits (Norris a collat hardly was not pertinent. proceedings” unless subsection State on certiorari to a state eral attack but arose (1) (2) step. Because the authorizes 1257.) is now The sum court under what Supreme Court of Wisconsin addressed in Part I.D of this mary collateral review restricting scope of propriety opinion, and Learned Hand’s assessment cross-examination, adjudicate on it did not law in should disabuse the state of the scope the merits the state’s “claim” about the plenary any of the belief that feder observer right. has this of the confrontation Lindh judgments is so al of state criminal review any making backwards. Wisconsin is firmly in American tradition that rooted “claim” on the Clause. based Confrontation beyond legislative pow passed alteration defending against that the It is Lindh’s claim express contains an er. The Constitution entitled him to cross- Confrontation Clause power Congress limit on over the writ about the criminal investi examine Roberts Suspension It corpus Clause. of habeas —the gation allegations. of the sexual-misconduct “judicial appropriate exercise of the is not an contention, prevail To on Lindh must Suspension supplement Power” to Clause propositions: establish two that the Confron of the 20th rule that enhancements dispositional applies tation Clause Century cannot be altered. trial, phase of a bifurcated limitations on were exces cross-examination

C sive. The Court of Wisconsin re arguments adversely At last we reach Lindh’s about solved this claim to Lindh merits, judge placed by deciding proposition trial on his the restrictions the second lawyer’s against Nothing Dr. him. calls on cross-examination of Roberts. opinions Lindh insists that he was entitled to cross- state courts to fill their with discus allegations lights unnecessary, are examine Roberts about the of sex- sions show, price avoiding ual if not actual of de novo review in feder misconduct order to the bias, may to make al court. There is a fundamental difference a reason Roberts have had practice and a prose- his assessment more favorable to the between a “claim” replies argu- legal theory. A “claim” is a demand for cutor. with two Wisconsin first, injury, may is not “con- relief from an identified be ments: that the decision (or defeated) by many trary clearly supported to ... Federal law” different established v. Indus because the Court has never held theories. See Christianson Colt 800, 807-10, during dispositional phase Operating Corp., that the tries 486 U.S. witnesses 2166, 2173-75, subject L.Ed.2d of bifurcated trials are to cross-exam- 100 811 ination; second, (1988); if Herrmann v. Associ that the Confrontation Cencom Cable (7th Cir.1993). ates, Inc., applies, limit 999 F.2d 223 Clause the decision to cross appli- injury here is the restriction of cross-exami- examination was not “an unreasonable

875 nation; relief, Starting premise trial. That claim from the that the a new the inapplicable resolved on the merits. Confrontation Clause is to sen has been tencing, disposi Wisconsin contends contrary espe- would have position Lindh’s phase tional of a bifurcated trial is more like cially consequences unfortunate when state sentencing than it is like the trial of the bypass particular a law leads a state court to trial, At of phase merits. the first Lindh’s legal theory. Suppose decides as Wisconsin jury deliberately determined that he matter of its law to extend the a domestic people third; killed two to kill a tried right sentencing. to A of cross-examination guilty pleaded Having to two crimes. other then that he is entitled to defendant contends beyond established all elements the crimes given to cross-examine witness uncover doubt, contends, reasonable Wisconsin it bias; highest disagrees the state’s everything entitled to treat that followed ground potential for bias is too as a matter of what be should done with the might justify lengthy to be a remote what (and, imprison criminal —whether to him if questioning. line of If the defendant then so, long) where and for how whether to corpus, a writ of a state should seeks habeas things, him. As sees “treat” the state “clearly reply entitled to that there is no be necessarily Williams two cases establish that creating any right established Federal law” person provides who evidence relevant non-capital sentenc- of cross-examination disposition against” is not a “witness clearly ing indeed, that it established that is — purposes defendant Confrontation none, Oklahoma, v. 358 there see Williams (“[i]n prosecutions, all Clause criminal 576, 584, 421, 426, U.S. 79 3 L.Ed.2d S.Ct. enjoy right accused shall ... to be con York, (1959); Williams v. New 516 him”). against fronted with the witnesses 1079, 241, 249-50, 1084-85, 93 L.Ed. Wise, (1949); questions sentencing, v. 1337 United States 976 F.2d Like about bane) (8th Cir.1992) (en 393, consequences insanity finding may 397 of an be —and jury’s cannot from purview. the state court’s decision therefore removed Shannon States, 573, “contrary clearly ... United 114 established Federal v. 512 S.Ct. U.S. 2419, 129 (1994). By response argument law”. Lindh’s this L.Ed.2d 459 Because “lack impermissible, mental which could transmute a rule disease” is not an element of the (the law, under of state law extension cross-examina- crimes state was free sentencing) question by preponderance decide tion into a rule constitution- assign purposes al at least for of that case. Yet of the evidence and even to the bur rule, persuasion A one well established altered den to the defendant. deci amendments, federal court that Lindh was at the time of the “[a] is that sion insane release; shootings him perceived not issue the writ on of a would not the basis entitle Harris, Pulley only change place v. of his confine error state law.” 465 would 37, 41, 104 875, process distinguishes U.S. 79 L.Ed.2d 29 ment. The due clause S.Ct. (1984). also, institutions, Taylor, e.g., prisons v. 508 mental see Vitek v. Gilmore Jones, 333, 342, 344, 2112, 2117-18, 445 S.Ct. 63 U.S. 100 S.Ct. (1993); Estelle v. Court held in L.Ed.2d 306 L.Ed.2d but the McGuire, 67-68, case that a choose to hold a state could (1991); using in a L.Ed.2d 385 Smith Phil criminal mental institution lips, procedures for civil than criminal tri rather although insanity finding If the Confrontation And an would als. particular if apply pro does not to a Lindh to seek release he could later permit Clause recovery, ceeding, then a restriction on the his is not dramatical mistaken establish scope nothing ly opportunity an different from to seek cross-examination but (which penal of state law how Justice Abra- from an sentence error release indeterminate “rehabilitation,” showing a dissenting opinion approached hamson’s feature of the on arguments). sentencing system until the last dec Lindh’s therefore conclude We today. systems and even that Wisconsin is to make both of its of some state entitled ade arguments, turn the first. the state submits. we to So indeterminate term judge impose to an of the not have a decision

Lindh does finding the defendant establishing day that this life on that clearly one Supreme Court bodily does harm to mem- mistaken. Neither a threat of argument is “constitutes line of in practice public, historical is an habitual offender that he contend bers psychiatric exposed Specht in prosecutions mentally held criminal ill.” Court for bias even testimony testimony bearing cross-examination these psychiatric that In- proceedings. its if state bifurcated be- subject to cross-examination issues was analogies. a different set of invokes punishment stead he the maximum cause it increased sys- unitary established a had If Wisconsin by law for the crime of beyond that set insanity a on the tem, was defense in which matter, practical a Colorado conviction. As (or sanity an element of which merits crime, by punishable life made it a had offense), plainly have Roberts would then mentally ill sex of- prison, habitual to be him; psy- and if a against” a “witness been anything of has not done fender. Wisconsin against been a witness would have chiatrist punishable life kind. Murder is trial, unitary how can in a the defendant beyond a rea- prison; proved the elements change things?, Lindh wonders. bifurcation phase of Lindh’s at the first sonable doubt respond that a chemist could Perhaps one punishment im- authorize the trial therefore powder a certain white testifying at trial that dispositional phase of- posed on him. The defendant, against the is a is cocaine witness mitigation, opportunity for Lindh the fered sentencing testifying at chemist but the same proceedings under the Sex Of- quite unlike (to subject determine the same about the fenders Act Colorado. not; drug) is the contra- quantity of the that, when the It well Supreme Court’s cur- built into the diction is question at finally considers the issue Court jurisprudence. rent here, testimony bearing that all it will decide point, that prepared to concede Not state, and its effect on the defendant’s mental Patterson, Specht v. Lindh contends punishment, comes from a “witness on his 1209, L.Ed.2d 326 accused, must be against” the and therefore (1967), psychiatrists are “wit establishes cross-examination, subject no matter how even at sentenc against” defendants nesses sentencing the trial and the state structures correct, Specht then would ing. If that held, yet and such process. But it has not so propo included “clearly the lesser establish” nontrivial extension a conclusion would be a are entitled to cross- sition that defendants say impossible think it of current law. We dispositional psychiatrists examine “clearly Federal as de- established actually Specht phase of a bifurcated trial. termined Unit- that if point, however: stands for different States”, to cross-examine ed entitled Lindh way separates a state issues such allegations of sexual mis- Roberts about the not establish all elements the main trial does patients. conduct with pun imposition of the maximum essential to to demonstrate that Lindh therefore has exposed, the defendant is ishment to which an the state court’s decision “involved unrea- protections of the Confrontation Clause of, clearly application established sonable (and many provisions) extend to ensu other Arsdall, Federal law”. Davis and Van they or not are ing proceedings, whether demonstrate that the Confrontation Clause Compare Bullington v. “sentencing.” called adverse entitles defendants cross-examine Missouri, jury, expose witnesses to their bias to the are Florida, (1981), and v. Gardner proper scope of cross- equally clear that the 51 L.Ed.2d 393 degree. quot- examination is a matter of We (1977), Farley, v. with Schiro language of Arsdall pertinent ed the Van Netherland, above. The Court Wisconsin Gray supra. Specht was con question inquir- liberties,” legally asked the correct that in of “indecent a crime victed ing judge trial abused his discre- whether the 10-year maximum sen Colorado carried tion; poses exactly how Van Arsdall this is tence. But was sentenced under Act, fact-specific answer can- the issue. And the state’s Offenders which allowed Sex issues, legal if even it is core such as whether the Con- called “unreasonable” not be (as court who wrong applies, members of this frontation and some Clause deferential re- believe). join opinion Roberts knew operational this view for within areas in decisions investigating allegations prosecutors were the constitutional norm allows discre- him, but, by the time he filed against 2254(d)(1) made requires tion. Section a federal testified, report and he also knew his final hearing a collateral attack court to accord at County prosecutor was not in that the Dane respect least that much to the state courts. thought that the Mil- charge. He have opinion The Court of Wis- County aid prosecutor would reward waukee careful; correctly in consin Lindh’s case is County if prosecutor Dane Rob- —but holdings states the of Davis and Ars- Van that, thought probably also believed erts he dall; transgress any clearly it does not es- many engagements prose- prior as his principles; tablished instead it addresses a expert carry would even more cutorial degree thoughtful peo- matter of about which Hindsight implies much. weight. can, do, ple portions and special prosecutor filed misdemeanor differ. Several pleaded guilty opinion suggest in charges, to which Roberts that as a matter of state January proba- sentenced to holding judge 1989. He was the court was the trial law to agreed prison, standard, time in and he to higher thought tion without an even which it special surrender his medical license. The satisfied. Lindh believes the state sentencing judge of prosecutor informed the put weight objective much too on factors expert many appearances as an wit- (such Roberts’ County prosecu- as whether the Dane career; long course of his ness over the testimony) tor could reward favorable and singled Lindh’s case was not out. (such enough subjective ones as the possibility that Roberts credited the Dane Nothing in the record shows Roberts County prosecutor with more influence than his initial interview altered his views between exercise). (before possessed, willing By or was any allegations of miscon- with Lindh 2254(d)(1) restricting scope in the new testimony light) duct had come to and his at extraordinary provided relief possibility that Roberts altered trial. The Congress corpus, writ of habeas has instruct- prosecutors thing telling his one views— the inferior federal courts to refrain from orally offering of the case but ed the outset view, Lindh, tuning. accordingly this sort of fine hold another less favorable to We report open that Lindh is not entitled to a writ of habeas written and on the stand —was corpus. cross-examination. Lindh’s unfettered counsel did not need to mention the sexual AFFIRMED. allegations explore ques- misconduct circumstances, depth.

tion in Under these judge responsible might reasonable and con- WOOD, Judge, DIANE P. Circuit clude that cross-examination based on the concurring part dissenting part, allegations that Roberts had sexual relations ROVNER, with whom RIPPLE Circuit patients with three female would divert at- join Judges, Part II. principal tention from the issue at hand— importance This case underscores both had a whether Lindh mental disease Janu- difficulty and the of the task with which ary producing 1988—without concrete evi- charged courts are under the Antiterrorism judge dence of bias. When a district comes Penalty Death Act of and Effective conclusion, ap- court of such 104-132, 1214, in apply- No. 110 Stat. Pub.L. review, peals will exercise deferential see for the Hernandez, ing the new substantive standards v. United States 84 F.3d (7th corpus pro- Cir.1996), issuance of writs of habeas greater accord 933-34 will ceedings brought by prisoners under 28 state thoughtfully weight reasoned decisions. Although I concur with most U.S.C. Beasley, 809 F.2d Cf. United States (7th Cir.1987). draws, majority’s analysis I of the new 1278-79 Hernandez way applied it has been practice, dissent from the for federal a line similar to 2254(d)(1): appellate De novo review here. below, explain majority’s I in more detail the description of the scheme is in- Wisconsin reservation, I I concur in Part of one With complete, potentially is and therefore mis- majority’s opinion, which holds that the the leading. the court Whether Wisconsin la- applies § 2254 Lindh’s version of amended “dispositional” phase opinion in its beled this only My relates to the reservation case. Koput, State v. Wis.2d deny motion to ancillary decision to Lindh’s controlling is as N.W.2d 804 not in this record court. See supplement the questions, of federal law. are matter These ante, Lindh wanted demonstrate at 867. however, go application that to the of amend- re- record in the Wisconsin court that the 2254(d), § compatibility ed not to its with Leigh suspension Roberts’ of Dr. flected III. Article University of privileges the by Hospitals the time trial. This Finally, agree in broad terms I with the new introduce evidence an effort to not majority’s interpretation key compo- term; it is an effort to of that sense 2254(d)(1) § explanation nents of and its legitimately in the record us what was show something the “contrary difference between view, In my courts. the Wisconsin before clearly to” something established law and changes in the law light that have application that is an of’ “unreasonable such prejudice and lack of to all occurred My law. concern is with a few statements concerned, grant that we motion. should that I could be fear misunderstood. For agreement I also in substantial with am majority example, broadly states majority’s opinion, II.A and II.B of Parts “contrary language § to” does not hold that the amended version of of a authorize issuance writ whenever a court 2254(d)(1), properly, construed does by errs. If all it means that is that doctrines unconstitutionally trample on Article III apply, like harmless error continue to then judiciary. particu- of the federal powers is a If statement harmless truism. it lar, nothing language agree I imply were that prejudicial read to errors of 2254(d) requires the federal courts to “de- however, ignored, law can be it would be legal determinations of the state fer” wrong. The statute authorize does issuance courts, need and therefore we not confront writ, of a if the state court has committed a issues serious constitutional that would pure of law. This error is because the feder- contrary begin were true. I if the arise power al court has the to decide whether the majority company part where state clearly court followed established law in Part its discussion II.C of its foreshadows the Supreme declared Court of the suggests and that we opinion “need not and United States because no deference is potentially difficult shoulder task of de- owed state court’s own views gloss termining appellate when an on a deci- problem issue. The real is a familiar one depart- has so sion of the far familiar): (though being no for easier when is wellsprings ed from its as to the ‘real’ law, purely the issue one of and when it a law_” Ante, at 869. source of For better question mixed of law and fact. If the feder- worse, will be or for that task ours virtual- (de novo) al court concludes the state ly every case comes before us under the law, not made an error of then the it is rare amended because indeed that question becomes whether there has been an something identical in particu- we will see all This, application unreasonable of the law. I already lars to a decided case the Su- agree, way describing is another preme Court. minor factual However question “mixed of law fact” situation. variations, we can and look for both must as a Unreasonableness makes sense standard decisions, guidance in our own decisions from here, if no other reason than the defer- (federal state), appellate other courts ence that is owed to court’s deter- the state persuasive secondary sources. 2254(e). facts, mination of the see disagree I majority’s majority suggests also with the state- that when the constitution- ment, question ante at that one al ingredient degree, is a matter of rather than entitlements, claim Lindh’s not well As I established. concrete the federal court Fosdal, pointed Roberts and Dr. Frederick decision honor a “reasonable” must psychiatrist, another forensic to examine entitlements Most constitutional state court. Shortly Lindh on behalf of the state. there- procedure ele criminal have in the area of after, University Roberts learned that the rights under if a defendant’s ments of both: Hospitals investigating were alle- Brady Maryland, 373 U.S. gations engaged that he had in sexual mis- 1194, 10 violat have been L.Ed.2d patient allegations conduct with a female prosecutor’s respect part of the ed with — that he knew could lead to loss of his license file, prosecutor little comfort that it is material; penalties. May criminal Brady other the same turned over Examining Board asked rights Medical Roberts Clause of the goes for Confrontation records, provide revealing it with to Roberts here. Just because one can sort we have Board, too, was about prior concerned a witness about inconsis cross-examine allegations. statements, these example, does not mean tent unnecessary that cross-examination meantime, In the Roberts continued to plea witness had a bar show that the same 22, 1988, on the Lindh case. work On June Many gain government. of these with the again. very interviewed Lindh next short, degree rights, in not be matters of will 23,1988, attorneys day, for the June Univer- proper them at the level of when we address sity Hospitals the sex- of Wisconsin referred clear, deprivation will be and the detail: the allegations ual misconduct to the Dane Coun- right must decide whether the federal court ty attorney’s Recognizing district office. was violated. interest, potential for a conflict of that office special prosecutor referred the case to a II attorney’s from the Milwaukee district office. explain why disagree I In order to with the appointment of that and of Roberts learned majority’s own case un- resolution of Lindh’s 8,1988. July investigation criminal on It principles opinion, forth in its it is der the set August was not until that Roberts necessary supplement the statement of case, report produced first a written on the description procedures facts and the of the suffering which concluded that Lindh was not plea of not used Wisconsin cases where from a mental disease defect at the time guilty by or defect reason mental disease 22,1988, shootings. August On he inter- is entered. alleges, as viewed Lindh a final time. Lindh above, that the trial court record noted state shooting rampage on his in the Lindh went suspended was from the shows Roberts Madison, Wisconsin, City-County Building in during University Hospitals some time January 1988. He himself was shot allega- the status of that summer. Whatever melee, apprehended during the was immedi- supple- and his unsuccessful motion to tion hospital ately, and was taken to the under record, it is clear that the state ment custody. p.m. evening, police At 9:00 Examining a civil com- Medical Board filed attorney’s Dr. the district office contacted away against August him in to take his plaint at his and asked him to inter- Roberts home license, alleged exploitation based on sexual care unit. Rob- view Lindh the intensive patients. Crucially, all these events of three agreed promptly hospi- went to the erts transpired trial in Lindh’s case. tal, arriving p.m. spoke 9:30 Lindh around before time, telling him Roberts for some about September the state filed On preceding the circumstances the murders requesting that the trial motion in limine feelings. Roberts elicited statements and his prohibit any cross-examination of Rob- indicating experi- from Lindh that he was not concerning allegations of misconduct erts feelings, depression, encing suicidal halluci- concerning any rami- pending against him or nations, or the like. pending charges. Lindh fications of those motion, circum- County arguing that the arraigned opposed in Dane Cir- Lindh was 26,1988, questions about Rob- February and entered stances raised serious cuit Court on motive, First, bias, Rob- and interest. pleas guilty guilty of not and not reason of erts’ distinguished time, himself as a ap- present At the court erts would mental disease. ability jury might give Emphasizing superior diagnose his and the less professional, contemporaneous opinion proceed- if it knew that Lindh due to interview his weight to pending. shooting, his license were he had conducted on the date ings to revoke Second, noted that Universi- Lindh was not defense counsel Roberts testified that suffer- already suspended ing any psychosis at time ty Hospitals had Roberts’ important jury shootings fully capable for the privileges, which and was under- Finally, argued standing wrongfulness Lindh that Roberts of his to know. actions and prose- please conforming requirements an incentive to his would have behavior cution, of fact called regardless the technical of the law. The defense Dr. Ezra attorney Griffith, prosecuting was from who that Lindh particular testified suffered the personality rather than The Milwaukee Madison. case from a mixed disorder and was in notoriety, during psychosis had received state-wide Rob- a brief reactive the shoot- expert According Griffith, a ings. himself was well-known wit- Lindh un- erts to was by arguments, appreciate wrongfulness ness. Unmoved Lindh’s the to of his able the granted motion the state’s conduct to trial actions and conform his the law investiga- relating to the in Finally, found that evidence he was a state. the when such Fosdal, “totally prosecution of Roberts’ misconduct was irrel- Dr. expert, tion other offered immaterial.” opinion evant and an in the somewhere middle: agreed suffering with Griffith that Lindh was took Roberts the stand to offer his When disorder, personality a mixed but he testimony, Lindh’s fears were real- worst disagreed experienced had Lindh a brief During presentation the of ized. initial his psychosis during shootings. the reactive credentials, jury the learned that Roberts it, the jury With this evidence before found faculty University member of the was a of appreciate that Lindh was the wrong- able to School, Medical that he was “on of his and to fulness conduct conform it to faculty adjunct of the the San Francisco 971.15(1). § law. See Ann. the Wis. Stat. Seminary,” Theological that he had chaired judge accordance with Wisconsin the religion “in conferences relation to and men- proceeded sentencing phase therefore the health,” years that about tal three before he proceeding, of the see Wis. Ann. Stat. essentially “honored ... had been the 971.165(3)(a), § imposed a sentence of and, psychiatrist year,” mid-west of the prison. in life that, loving grandfa- top of all that he was a eight grandchildren “up nearly three-phase proceeding- ther with Wisconsin uses a age responsibility Lindh.” in cases in which mental the of Mr. Because of the trial the of A ruling, jury court’s the never learned the defendant is at issue. defendant is University couple guilty plea Roberts’ affiliation with the entitled of not a of guilty peril, plea that he of not of mental Wisconsin was nor was reason disease defect, standing pursuant Ann. prestigious about to lose the or to Wis. the Stat. 971.165(1). profession up § enjoyed he had to that The statute establishes or- time. all, of jury proceedings pleas Worst never learned that der of for the two as fol- might Roberts have had a motive to favor lows: prosecution testimony. in his (a) separation There shall be sequential proof issues with a order of in a requires As Wisconsin law in cases like plea guilty continuous trial. The of not Lindh’s, there was a “continuous trial” in plea shall be first and the determined of jury

which plea first considered of guilty by not reason of mental disease or and, guilty, having not concluded that Lindh defect shall determined second. guilty, plea then his considered guilty by Ann., 971.15(3), provides reason of mental disease or defect. Stat. Section Wis. 971.165(l)(a). “[mjental Ann. excluding Wis. Stat. or disease defect jury’s picture par- one-sided responsibility of Roberts was an affirmative defense which ticularly troubling Roberts was to a because the defendant must establish reasonable prosecution’s during degree certainty by greater star weight witness second (mental disease) stage proceedings. credible evidence.” process guilty proceeding the criminal jury the defendant not If the finds proof the court must enter the defendant has the burden of plea, first on the discharge acquittal and the de- judgment responsibility establish his lack of to a rea- 971.165(l)(d). If, on the other certainty by greater weight fendant. sonable hand, jury guilty on finds the defendant credible evidence.” 418 N.W.2d into plea, then the trial continues the first rejected public arguments It defender’s judgment phase and the court withholds two trial, protections that the usual for a criminal jury’s determination on the sec- pending the such as the need for a unanimous verdict plea. At the end of the second ond Id. twelve, jury requirement and the jury finds that the defen- phase, the either doubt, proof beyond applied a reasonable disease guilty is not reason of mental dant phase proceeding. two The affirmative (ie. defect, guilty or that the defendant is during phase defense tried two related fails). 971.165(B). his affirmative defense “responsibility,” and had the effect of re- judg- enters a point, At that the court either lieving person of the sanctions for crimi- guilty by “not reason of mental ment of finding guilt during nal conduct. The defect,” judgment of or or it enters a disease one, however, by phase phase is unaffected appropriate judg- conviction. Id. After the reason, two. For that the Wisconsin Court entered, pro- the court concludes the ment is phase “dispositional” concluded that two was three, ceedings phase which is either jury phase in nature and that the rules for hearing pursuant to commitment inapplicable. one were Id. at 812. 971.17(2)(a) sentencing proceeding § or a ease, opinion In its in Lindh’s the Wiscon- 972.13, 972.14, §§ pursuant to and 972.15. Supreme indicated sin Court that the Con- guilty not reason of For those found Amendment, frontation Clause of the Sixth defect, requires mental or the statute disease I, analog in as well as its Article section 7 of person depart- commit the to the the court to Constitution, applies the Wisconsin speci- ment of health and social services for a Lindh, phase proceeding. two See State v. exceeding period fied not two-thirds 324, 168, 161 Wis.2d 468 N.W.2d 175 imprisonment maximum term of that could level, us, enough one that is almost for On imposed, been unless the maximum have significance it us the because tells life, imprisonment in case term of stage proceedings. to this attaches period can also be life. the commitment independent But an matter of federal as § 971.17. As soon as six months after the conclusion is the Wisconsin Court’s committed, person petition he is entitled to Clearly plainly established law from correct. 971.17(4)(a). § for conditional He release. nothing shows that about filing every petitions can continue these once justify an phase proceeding two would Importantly, six months. the court “shall exemption from the Confrontation Clause. grant petition it finds clear and unless convincing person evidence would First, practice determining Wisconsin’s significant bodily to pose a risk of harm responsibility stage in criminal the second or herself or to others or of serious himself trial, where the defendant has a bifurcated conditionally property damage if released.” proof, is no from the burden of different 971.17(4)(e). person A who wins condition- many other state rules that petition al release can then the court for approved similarly shift the Court has of the order of commitment. termination See, Oregon, proof. e.g., Leland v. burden of 971.17(5). 1002, 96 L.Ed. (state (1952) prove may require accused to Supreme Court discussed The Wisconsin doubt); insanity beyond a reasonable his predecessor statute to 971.165 exten- York, 97 S.Ct. Patterson v. New sively Koput, supra, in in which the State (1977) (constitutional to principal jury verdict issue was whether prove affirmative de require defendant phase two must be unanimous. It distin- disturbance fense of extreme emotional guished responsibility phase of the bifur- mitigating factor that qualify for order to cated trial used Wisconsin from the charge manslaughter); McMil guilt/innocence phase, labeling special it reduced a “a incarceration, combination of or some fine or Pennsylvania, 477 U.S. lan v. proba- might period include a (1986) (constitutional the two. It L.Ed.2d release; construing the supervised tion or stan of the evidence” “preponderance use commit- broadly, might even include term proof at sen burden for the State’s dard period institution for ment to mental law); sentencing Mar minimum tencing for simply not before years. These issues are Ohio, tin v. jury during phase two court or the (constitutional (1987) for Ohio to L.Ed.2d purpose is in- Its sole trial Wisconsin. prove affirmative de require defendant person is crimi- to decide whether stead preponderance, fense of self-defense will receive a nally responsible, and hence required prosecution to long as instructions sentence, person if is not to or criminal aggravat of the offense of prove all elements to receive responsible and instead is be held doubt). beyond a reasonable ed murder involuntary commitment to a mental institu- Thus, Supreme Court was the Wisconsin (The latter, course, every day occurs tion. nothing it found ground Koput when firm far from the criminal in contexts removed non-unani objectionable the use of a about justice system.) The fact that the verdict of proof in the burden of jury a shift mous “guilty” phase one stands does not dis- responsibility deter criminal for Wisconsin’s many tinguish this from other situations— mination. self-defense, justi- passion, heat of such as Second, purposes no matter how it is clear that the defendant fication —where to characterize wishes state law Wisconsin act, the criminal but he will committed two, that it is the definitive phase it is clear Furthermore, analogy punished for it. finding a of criminal step yields that either indeterminate parole or release under an offense, in- the and hence responsibility for sentencing up. does not hold No scheme carceration, finding a of no criminal re- or I system of which am aware confers an such hospitalization for as sponsibility, and hence on the defendant to win release entitlement much as a lifetime. months or as little as six clear and convinc- unless the finds disregards provisions of majority the The ing that must remain incarcerat- evidence he asserts, it Ann. 971.17 when Wis. Stat. exactly this is how the commitment ed. Yet 875, only consequence of a at that the ante operate in Wisconsin for individuals rules criminally Lindh was not re- decision that criminally responsible to for found not place “change the of sponsible would be Stat. Ann. acts. See Wis. majority dismisses confinement.” The his 971.17(4)(d), under 971.17 as possibility of release always Supreme required Court has The trivial, it chance of release equating to the application of the Confrontation Clause to sentencing scheme. under an indeterminate begin plea of not proceedings with however, overlooks both the position, This finding guilt guilty and conclude with a of or phase of second of the critical features York, 186, acquittal. v. New Cruz defining proceeding and the char- 1714, 1717, L.Ed.2d 162 107 S.Ct. 95 any sentencing proceeding. acteristics (1987) (for purposes of the Confrontation undisputed phase that the second trial It is Clause, against any- a witness defendant plea guilty by reason of begins with a of “not body testimony part “is of the one whose jury and ends with a verdict mental disease” jury may in as- evidence that the consider jury guilty guilty. Texas, not Like all verdicts guilt.”); sessing his Pointer v. 380 guilty, “dispositive” in guilty 1065, 1067-68, or not 400, 403, 85 U.S. governs fur- (1965) that it what kind of right the sense (holding of con- L.Ed.2d required, but it proceedings will be applicable ther to the states frontation under Amendment). way that, in the same a sentenc- “dispositive” than it Fourteenth More stating ing proceeding capi- is. At the risk applied the Confrontation Clause to sentencing hearing obvious, purpose sentencing proceedings, of a it is true tal where sentence, jury’s pronounce and the difference is in the nature of is to (albeit begin exceptionally phase imposed does not even an two verdict sentence difference), explicitly recognizing subject. might important address that A sentence be a points The Court reiterated all these in debate such for adversarial the need Florida, ease, Notably v. generally Gardner Van Arsdall. Lindh’s context. See 97 S.Ct. drew a distinction between trial court control (1977) (“Our belief that debate harassment, L.Ed.2d 393 of cross-examination to limit often essential to the adversaries is between confusion, repetition, marginally or the rele- requires us truth-seeking function of trials vant, prohibition inquiry and the of all into importance giving recognize the also to possibility of a witness’s bias. 475 U.S. opportunity to comment on facts counsel an at 1435. It held that: sentencing decision influence a criminal defendant states a violation of cases”). plain fact here is capital The by showing the Confrontation Clause could, in that Lindh the words Wiscon prohibited engaging was other- Court, ... “relieve[d] sin have been appropriate wise cross-examination de- for criminal conduct” at the of the sanctions signed prototypical form show of bias phase proceeding. two See Ko end of the witness, thereby part on the “to expansion It put, 418 at 812. is no N.W.2d expose jury to the the facts from which clearly law to established jurors appropriately ... could draw infer- magnitude in that stakes of this find here relating reliability ences of the wit- bring proceeding the Confrontation Clause ness.” 475 U.S. at 106 S.Ct. at Supreme Court play, into as the Wisconsin quoting from Davis Alaska recognized. itself Court of the Decisions of particular risk of bias in Van Arsdall States also establish Lindh’s United quite type similar to the Lindh wished impermissibly right to confront Roberts was put jury. before the The trial court restricted, through grant court’s the trial inquiry prohibited Van Arsdall into the cases, key the motion in limine. The two agreement terms of an the witness had made Alaska, majority agrees, are Davis v. prosecutor drop driving a drunk charge exchange testimony for his about Arsdall, (1974), and Delaware v. Van nothing the murder. There was unusual or 1431, 89 L.Ed.2d 674 unprecedented in Lindh’s effort to show that decision, In the Davis Su- Roberts, too, might shading have his been preme began Court with the observation that testimony with the ulterior motive secur- “[cjonfrontation being al- means more than Thus, ing from the better treatment state. physically.” witness lowed to confront the Supreme Court decisions establish both that at 1110. The main 415 U.S. at apples Clause to the kind Confrontation purpose and of confrontation is “to essential here, proceeding we have and that opponent opportunity secure for Confrontation Clause is violated when 315-16, cross-examination.” Id. at precluded exposing “possi- defendant is (emphasis original). at 1110 Cross-exami- biases, prejudices, ble or ulterior motives.” testing of nation both the the wit- involves Davis, 94 S.Ct. at 1110. story impeachment discrediting ness’s and or only question remaining is The whether said, As the Davis Court of the witness. here, was violated the Confrontation Clause particular more attack on witness’ “[a] precluded inquiry all when the trial court credibility by means of cross-ex- is effected proceedings risked into the at which Roberts revealing possible toward amination directed license, professional obloquy from loss of his biases, prejudices, or ulterior motives peers, and criminal conviction. Both the his they may directly witness as relate to issues majority Supreme Court and the personalities in the case at hand.” Id. at transfer here believe that the administrative 1110. The held that 94 S.Ct. at County prosecu- from the Dane of the case opportunity counsel should have had the prosecu- special tor’s office to the Milwaukee question whether to ask the witness biased, possibility all of concern from explore why tor erased but also to he view, my this asked the Roberts’ mind. might biased or otherwise lacked have been (i.e. wrong question was it sufficient when impartiality. facing charges formal insulation was both criminal and civil steps taken assure were Second, prosecutor proceedings from the Dane to revoke his license. of the Milwaukee office), produced wrong County and thus as Justice Abrahamson of the Wisconsin Su- must instead be on Rob- The focus preme ably answer. Court so demonstrated in her testimony, just to shade his erts’ motivations subjectively may dissenting opinion, Roberts It is worth recall- as it was in Van Arsdall. hoped “good perfor- have believed or that a Roberts, already happened ing had what part might mance” on his for the state cause trial erred deciding whether the before leniently. him prosecutor to treat The impeachment in its total exclusion prosecutor “special fact that the was called a testimony. July critical dates are The two prosecutor” County, than for Dane rather August than and 1988. No later staff, member of the usual cannot have made July Roberts knew that a criminal subjective difference from Roberts’ view- underway, investigation of his activities was point. regularly The courts see witnesses implied with all that for his career. Yet it charges multiple criminal trials who face August far as was not until (federal jurisdictions state, and or several shows, con- record that he first reduced his states), parts states or and the witnesses majori- writing. clusions about Lindh performance being are aware ty comments that there is no reason to be- watched all concerned. If a witness were changed his mind between the lieve Roberts testifying in a case before the Circuit Court shooting initial on the date of the interview Illinois, DuPage County, witness obviously way August but there is no facing charges County, were Cook inquiry if to know the trial court forbade Attorney ground State’s would have no (The on the matter. ma- cross-examination keeping designed out cross-examination jority suggests open that Roberts was hope show of favorable treatment at issue, cross-examination” on this “unfettered County hands of the Cook authorities. Rob- given but that cannot be true the fact that erts’ case is no different. question Lindh’s counsel was forbidden to Indeed, stronger ease even for find- might fact that Roberts on the one have led ing that Roberts have entertained such change legal prob- Roberts to his mind: his hope. prosecutions Not all criminal —not lems, hope winning and his favorable prosecutions all even murder state- —receive prosecutors.) By treatment from the publicity, wide but the Lindh case did. Rob- started, Ex- time the trial the state Medical erts, who had testified his own account all amining complaint Board had also filed a civil state, over the knew that he was known in against away to take his Roberts license. Milwaukee, just as he was known in other this; Again, jury nothing knew in- parts every of Wisconsin. He had reason to stead, it was informed he was “mid-west begin leniency his efforts for on the witness psychiatrist year.” of the (Although stand Lindh’s case. it is not legal diffi Cross-examination Roberts’ ruling relevant to the trial court’s on the required for at culties was least two reasons. here, motion in limine the record of the First, expert proffered when witnesses are sentencing actual criminal place that took jury quali is entitled to learn about their charges after Roberts was convicted on the fications. Daubert v. Merrell Dow Phar expectations shows that his were well found- maceuticals, 509 U.S. 113 S.Ct. prosecutor judge ed. Both the and the ex- (1993). Particularly 125 L.Ed.2d 469 in a pressed regret having intense at to sentence psychiatry, methodologies field where like all, anything given him to outstanding his readily subject objec are not to the kind of many years.) service to the state over verification the tive scientific Court Daubert, Van jury Arsdall and Davis make clear that called for is entitled to nothing” the trial court did not suggest weight evidence that will what face an “all or give expert’s opinions. option respect proffered with impeach- should It is to the jury give testimony. place fanciful to assume that a ment It would was entitled to weight it, psychiatrist having same to the “mid-west reasonable limits on to avoid year” give jury problems. as it would who someone distracted with Roberts’ The enduring importance could, permitted most is whether example, have trial court compatible with the existence of the new section about the cross-examination judicial forbidden discussion role of the United States courts re- charges and pending basis, jury by instructing quired that the na- the Third Article the Constitu- subsection, charges problematic misconduct tion. The identified professional ture of the This, possible approval or other as such the President his not relevant. was limitations, by legislators mini- legislation1 have eliminated or who fa- would measure, exploration opposed of vored and forbids the risk of a salacious mized proclivities. problem corpus The issuance of a writ of habeas unless the sexual Roberts’ Arsdatt, to, here, lay contrary in the total decision of the state court “was Van of, impossible, application It is or involved an unreasonable of the evidence. exclusion clearly validation of Federal as deter- given the absence of scientific established say diagnosis, psychiatric this kind of mined United literally jury The error was harmless. States.” accept: whose word it would had to decide Fosdal’s,

Roberts’, must or We Griffith’s. only Roberts testified both recall that statutory rules of construction are Several personality disorder and that Lindh had no First, pertinent analysis. to our we must time of the offense. responsible was at the interpret that the statute must be remember entirely differ- jury would have seen an language The amended ed as whole. discredited, had been picture ent if Roberts considered in relation to therefore must be Fosdal, only agreed who and it was left language. give the unamended We must ev personality had a disorder but that Lindh ery meaning. word of the statute We time, responsible at the thought he was who Congress intended cer cannot assume Griffith, thought Lindh had the who phrases to have no force and tain words responsible for what he and was not disorder Mackey v. Lanier Collection effect. See Lindh, recall, persuade had did. Serv., Agency & jury by preponderance evidence (1988). 2182, 2189, 100 L.Ed.2d 836 We also suffering disease or he was from mental in a attempt interpret the statute must his actions to and could not conform defect that renders it constitutional. See manner the law. Robison, 361, 366-67, Johnson v. view, (1974). adjudication of Lindh’s my 1160, 1165-66, In resulted, in the so, however, in the courts give claim doing we must not 2254(d)(1), that was clearly in a decision meaning words statute a strained See, contrary clearly established federal law as e.g., Congress. Semi not the intent - Florida, Supreme Court of the determined Florida v. nole Tribe of might To the extent it better -, - n. United States. 1124 n. question of law characterized as a mixed fact, an un- decision was the Wisconsin briefly preliminary turn to another We clearly application of established reasonable The text of the amended stat- consideration. I For the reasons have ex- law. characterized se- forth what can be ute sets grant I the writ of habeas plained, would (1) mantically separate requirements: as two corpus. con- underlying state decision be the applica- unreasonable trary to or involve an RIPPLE, Judge, with whom Circuit (2) law; and tion of federal constitutional ROVNER, Judge, joins, dissenting.* Circuit law applicable federal constitutional that the Supreme determined involving have been presents This case several issues presentation Ease of of the United States. to section 2254 of the the new amendments certainly suggests a divi- issues, such one of and discussion Among those Judicial Code. * States Judge of the United Judge Ripple joins 1. Statement of the President II of Wood’s also Part Bill, April Signing Upon the Antiterrorism dissenting opinion. House). (White WL 203049 analy- principle It the federal majority adopts it as its is a “basic and the

sion follow, judiciary supreme exposition is in the of the paragraphs that the same In the sis. Constitution, principle law of the and that preliminary followed as a pattern be will respected per- ... However, has ever since been we must also remember matter. can, indispensable of our con- analysis manent feature of our that the structure Aaron, system.” does, Cooper stitutional v. predetermine the result. indeed often approach, helpftd as it is in two-pronged This (1 Madison, material, Marbury As of the must presentation Cranch) 137, because, L.Ed. 60 made clear critically although it has evaluated days Republic, clarity, may the earliest of the this obli- well not reveal the virtue constitutionally gation flows from the im- operation the true and effect the statute posed obligation of the courts decide cases present a skewed model for and therefore jurisdiction within their and to determine and the amendment’s final evaluation of constitu- apply necessary adjudicate the law those tionality. cases. that, important Finally, it is to note both determining In Congress whether has in- in question, after the amendment before and impermissibly judicial truded into the federal judiciary the fundamental task of the under function, must, majority we as the acknowl- unchanged: Congress this statute remains determine, edges, specificity, first with courts, including given the federal this judicial power. nature of the There can be court, determining task of whether disagreement proposition no with the basic custody prisoner is “in in violation of state Constitution, text, very its makes the Constitution or laws or treaties of the that, created, clear once the inferior federal States,” § 2254. United 28 U.S.C. Under the judicial power courts share the “one statute, previous version of the the federal Supreme explicitly Court” mentioned in the applicable on its court determined own constitutional text. Nor can there be federal constitutional standard. The new disagreement power that such must be exer- decidedly operates in a different man- statute light “revisionary” jurisdiction cised in of the Having given the ner. federal courts the Beyond point, of the Court. jurisdiction person to determine whether a however, it pre- is difficult to determine the custody in being held in violation of the majority’s concept cise contours of the of the States, Constitution and laws of the United judicial power. Despite emphasis its Congress has also now mandated how the responsibility on the distinctive of an inferior applicable courts will determine constitu- court, it describes the role of that inferior tional standard. simply placing “gloss” court as on the work

of the If Court. we are to under- stand the constitutional function that we are duty protect, carefully bound to a far more amendment, in ascertaining Under the new description drawn of its contours is indicated. been whether there has a violation of the helps negative; It little to it in define it is Constitution, the courts are restricted to the obviously “agency relationship” case law of the Court of the United exists between the Chief Executive and the States; they permitted rely are not as well departments government. executive short, upon precedent. their own Con- gress, although continuing relationship to vest the federal and interreaction of the authority courts with the to decide judiciary molding whether a various levels of person being custody held state product viola- constitutional doctrine is the of a Constitution, tion specified carefully has now power crafted balance of between judiciary required disregard judiciary legislative and the branch. product components, work of of one its a That power constitutionally balance of upon source of Through law the courts other- appel based. its control of the rely adjudication jurisdiction wise would in the of the Supreme late of the Court and courts, case. jurisdiction the entire of the lower case, the United States. It must decide the certainly can influence the devel Congress believes, doctrine. constitutional it it as it opment of but must decide after However, limits on the just as there are study upon existing of and reflection case judicial authority constitutional Supreme of the Court United States branch, pow are limits on the so too there it under would decide the Constitution. See process of Congress to dictate the er of (7th 457, Heffernan, Levine v. 864 F.2d judicial depart decision-making within the denied, Cir.1988), cert. 493 U.S. meaning respect to the ment with 204, 107 L.Ed.2d 157 S.Ct. Su Congress Although has Constitution. determines, course, preme Court then due authority abolish the lower to create and development the doctrinal will be whether juris regulate and to federal courts long-term part short-lived or remain a of the diction, power no to dictate how it has jurisprudence fabric of the constitutional governing law will be deter of the content judicial department government. One In judicial department.- within the mined justice interrelationship of described the jurisdictional or structure present Supreme work of the inferior and responsibility it by Congress, is the dained Supreme scrutiny explaining the Court’s Supreme Court of the United States of the the work of the lower courts in these terms: through the doc regulate, principally “Across the screen each Term come the wor precedent, decisis and trines of stare people— and concerns of the American ries lower federal courts. jurisprudence of the concrete, high presented tangi low— making function of the of the law Control ble form.” Tidewater Oil Co. United courts, within the hierarchical lower federal States, judiciary, a mat of the is therefore nature (1972) J., (Douglas, dissent province Supreme of the ter within the longevity ju ing). The of our constitutional Supreme Court of the United Court. The Congress risprudence is a matter that can States, bring authority to a court with the only through heal, control the initiation of the appeals to doctrinal determines ought amendatory process through altera degree the lower courts to which engage jurisdictional in constitutional permitted Congress tion of the scheme. ! development. right doctrinal no more than we to otherwise has aspects jurisprudence those of our determine fed a ease comes before an inferior When Supreme that the Court will allow to endure. in the normal course of its exer eral court duty jurisdiction, it is the of that cise of 2254, Congress given In section ques to determine the constitutional determining task of wheth district court the it. The inferior courts have tion before being person er a held violation responsibility to refine the basic consti clear judicia require To the federal Constitution. principles the Su tutional enunciated is no constitutional ry to hold that there accomplished preme Court. The task is no case of simply violation because there process elaboration through the of reasoned Court of the United States disciplined by the doctrines of stare decisis directly deny right to point, is to it the duty say precedent. The “to what the corpus jurisprudence to which refer unitary unitary within the law is” is a one “say what the law is.” it turns when must judicial department created the Constitu (1 Cranch) Madison, Marbury v. - Farm, Spendthrift tion. Plaut v. (1803); Wright v. 2 L.Ed. 60 see also -, -, West, 277, 305, 112 (1995) (“not uncon a batch of (1992) (“We always have 120 L.Ed.2d courts, judicial department but a com nected courts, habeas, even on held that federal posed and ‘one of ‘inferior Courts’ say independent obligation to what have an ”) perform (emphasis original). Court’ is.”) (O’Connor, J., concurring). the law function, ing court is an inferior federal requires that we decide The amended statute not free to determine the content custody person is in in violation whether a to the exist Constitution without reference consulting body without the Constitution ing jurisprudence of the Court of remedy: judicial in of what the de- tained the amendment as one determines law that of Congress simply has determined requires.2 says the Constitution partment prisoners only writ is to be available to state departure when the state court’s from the “unreasonable.” Ha- federal norm had been Limiting judicial function of determin- is to to those instances beas relief be limited a meaning of the Constitution to ing the degree departure in from the which the Supreme scrutiny decisions of the of the great as to have federal standard is so is, itself, a sufficient constitutional in Court gross deprivation protec- of federal worked An infirmity the amended statute. to vitiate argument tion. This can be best evaluated requirement,” in- of the “second examination majority examining support that the first, raises, however, sub- dependent of the offers for this characterization. its at- about the amend- stantial additional concerns tempt justify approach, majority this integrity on the constitutional ment’s effect which, points despite to other instances Third Branch. violation, of a constitutional the existence that, requires al- statute The amended may plenary relief to an be available obligation though district court has aggrieved glance, At first these individual. issue the writ when the under the statute to present analogues instances seductive person is held in violation of the federal present Upon scrutiny, situation. closer Constitution, accept the court must as defini- however, it is clear that in none of these interpretation tive an of the federal Constitu- deprived instances is the federal court of its court, interpretation if that tion the state responsibility prerogative essential precedent is a reasonable view clear meaning define the of the federal Constitu- Supreme Assuming arguendo Court. apply tion and to it to the case before it. only precedent to the clear reference superficial comparisons pro- Therefore these constitutionally Supreme Court is ac- support vide no for the statute under review Supreme ceptable, even the decisions present in the case. form the substantive rule of Court do not There are several instances in which feder- granting denying or un- decision in the writ courts, although declaring apply- al both state court’s decision is deemed un- less the States, ing the Constitution the United Even if the Court’s reasonable. place significant limitations on the available “clearly is es- rendition of Constitution remedy. example, adjudicating For a civil tablished,” the rule of decision it becomes rights matter under section interpretation if court’s the state applicable court determines the federal con- very is deemed to be federal Constitution applies stitutional rule and it to the ease that of the different from view, before it. Its not the view of other Otherwise, the United States. the state’s sovereign, applicable determines the consti- Constitution, not the

view Nevertheless, tutional standard. if a viola- view, operative. Court’s tion of a substantive constitutional standard identified, light, argument, remedy best vary Cast its the available will bottom, depending too, characterizes restriction eon- on the circumstances.3 So majority appears incongruity Congress, having 2. The to sense the that the once enacted a cause acknowledges position seemingly authority of its when it of action and vested a tribunal with the it, judiciary’s adjudicate arising long- that such an intrusion into the federal cases under can no adjudicative permissible would not be function er dictate the rule of decision for the resolution it, regular controversy acceptable ipse case or but is of cases under we are told—as a matter of corpus. majority, in the case of habeas For the dixit—that the situation different with habeas. corpus proceeding habeas is somehow less of a instance, controversy properly although constitutional case with- 3. For a state official’s conduct jurisdiction may prevailing in the of the federal courts. Al- be determined to have violated a standard, though apparently this distinction is crucial its constitutional the official be held holding, majority why enjoy immunity, Stump Spark never discloses how or to man, absolute see jurisdiction the habeas of the federal courts 55 L.Ed.2d (1978) (holding judge enjoys somehow is different than other areas of the 331 immunity that a absolute jurisdiction. Although very judicial jurisdic- courts’ it is clear acts within his

889 authority, adjudicate jurisprudence, obligation, the to the our Fourth Amendment Adjudication always case. involves more remains a mat- the than legality of the search just opportunity the the although the declare content ter of constitutional federal law; meaning remedy exclusionary inapplica- rule is of the it also involves the of the authority to apply officer reason- that law as well. ble when the law enforcement judicially ably upon a issued search relied 4. Leon, v. 468 warrant. States See United magnitude deprivation 82 The of the U.S. worked judicial appreciat- the can L.Ed.2d 677 on function best be ed, however, by assessing impact of the the corpus, In the of habeas the same area phrases together. two of the amendment Powell, pattern is Stone v. 428 U.S. evident. scheme, only permissible Under the new the (1976), 96 S.Ct. reference to law federal constitutional is to simply that violations of the Fourth holds clearly Supreme prece- established cognizable not on habeas Amendment are precedent That dent. becomes the rule does review because the violation not affect respect decision to the issuance the truth-finding process principal that is the the only if the writ state court reaches an unrea- no depriva- focus of relief. There is habeas pause view. to reflect sonable When we declaring tion of the law function or either Supreme role of the Court of United adjudicatory of the function federal adjudication States constitutional and on Lane, courts. 109 Teague v. majority’s to how view as reasonableness (1989), 1060, 103 L.Ed.2d 334 likewise measured, is to be clear that it becomes leaves intact the essential functions suggestion that of decision a federal rule will adjudicat- ease is adjudicatory process. The applied adjudications be under section by the on the basis ed federal court of feder- illusory. 2254 is application al law. rules of retroactive The First, it be remembered that it must has adjusted developments new are take never been role of the Court of into account the nature of habeas relief.4 It micro-manage the United States to the devel- accurate, therefore, is not to term this opment of jurispru- federal constitutional principle amendment a extension of the mere days From dence. Great Chief Teague. qualitative is a differ- There (4 Maryland, 17 Justice M’Culloch v. U.S. ence —a constitutional difference —between Wheat.) (1818) 316, 407, 4 L.Ed. 579 “[W]e— fixing the frame at which law time federal forget must never that it is a constitution we requiring that applied will be the federal expounding” Congress’ ratification of are any application —to defer to constitution- that role latest reassessment principle al that cannot be characterized as statute, certiorari see U.S.C. approach, the latter unreasonable. Under function has Court’s statute, mandated the amended the feder- set, significantly at broad level of been appli- al court content with a careful must be generality, guiding principles of our con- Constitution, if it wrong. cation of even applica- jurisprudence. stitutional Further essence, court is free have the federal principles those been the work of tion of opinion requires, its own federal law of what scrutiny the lower federal courts under deny grant it or the writ on the but must Court. basis of another non-federal tribunal’s view. however, courts, gener- merely proceedings, must In state criminal these Federal not them; in the expound they principles applied, al first on the eases before must - instance, Plant, at -, courts. See must the state U.S. decide them. review, judicial power Art. the ma- the Const. VI. On habeas S.Ct. at 1453. tion), Malley Teague, at qualified immunity, Briggs, or see context, (noting "[alp- 1095-96, that in the habeas review plication of rules not in existence constitutional (1986) (stating qualified immu- seriously final at the time conviction became nity for executive officials—state federal—is principle finality undermines which is norm), damages remedy, although not from a justice operation criminal essential to the system"). of our remedy. prospective equitable from a simply a matter of each of the three coordinate branches jority holds giving respectful responsibilities court’s own and vests each their the lower Olson, interpretation con of the federal powers. heed to the own Morrison v. 487 U.S. by the state court. Rath 654, 693, 2597, 2620, rendered stitution 108 S.Ct. L.Ed.2d accept er, court must as the lower federal although Supreme And the state court’s view rule of decision federal rejected the formalist view that Court Moreover, given preferable to its own. as there is to be no “control or coercive influ- generality at which the the broad level of another, ence,” by one over exerted branch usually gener Supreme articulates the Court branch, actions, through “unduly if one its proce constitutional criminal principles al another, with the role of such interfered” dure, the difference between views Morrison, actions are void. 487 U.S. at and state court indeed be sub federal making 108 S.Ct. at 2620. In this determina- Nevertheless, majority tells us stantial. Congress] tion of an Act dis- [of “whether “[questions degree” that these issues are rupts proper balance between coordi- decision of the state and that a reasonable branches,” nate are to focus “on we “Questions court must be honored. of de prevents extent to which it ... [another] subjects “painted grey, gree” are shades of accomplishing Branch from its constitutional- contrasting than in colors....” This rather Nixon, ly assigned functions.” 433 U.S. statement stands in stark contrast 443, 97 S.Ct. at 2790. The statute amended description own of “con Court’s significantly judicial with the “interfered” Estin, trasting colors” Estin v. 334 U.S. great prevents judi- role and to a extent 541, 545, 1213, 1216, 92 L.Ed. 1561 department accomplishing cial its “con- (1948): “there are few areas of the law in stitutionally assigned Simply functions.” greys black and white. The are dominant statute, amended, put, deprives as a fed- and even between them the shades are innu adjudicate right eral court of the the ease. problem merable. For the eternal of the law adjudicate And a court that does not advises: making is one of accommodation between decidedly a role different than the one the conflicting majority requires interests.” The judges Constitution envisions for courts and Yet, questions degree. deference on all of the Third Article. itself reminded us in Estin, discerning among grey the shades of adjudicatory

is the essence of the function. Fenton,

See Miller v. 474 U.S. (1985) 445, 450-51, (“But, reaffirm, ques as we now the ultimate Application In the Matter of The whether, totality tion under the of the cir COUNTY COLLECTOR OF the COUN cumstances, challenged confession was WINNEBAGO, ILLINOIS, TY OF compatible in a manner obtained requirements of the Constitution is a matter Appeal O’BRIEN, of Michael F. Alice J. determination.”). independent By federal O’Brien, Maher, Edward M. et al. suggesting deprives that the amendment 96-1709, Nos. 96-1710 and 96-1716. responsibility federal district court of for all Appeals, United States Court of questions degree, majority points Seventh Circuit. graphically why the amendment does not leave integrity intact of the Third Argued June 1996. deprives Branch: the federal court not Sept. Decided 1996. prerogative of its to determine the con Rehearing Denied Oct. tent of right but also of its duty apply that law to the case before it.

As the Court has reaffirmed again,”

“time assigns the Constitution Servs., States, 869, 874, 5. Nixon v. Administrator Gen. 425, 441-42, 53 L.Ed.2d (1935)). L.Ed. 1611 (1977) (citing Humphrey’s Ex’r v. United

Case Details

Case Name: Aaron Lindh v. James P. Murphy, Warden

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Sep 12, 1996

Citation: 96 F.3d 856

Docket Number: 95-3608

Court Abbreviation: 7th Cir.