Case Information
*1 Before WILKINSON, Chief Judge, HALL, Circuit Judge, and BUTZNER, Senior Circuit Judge. _________________________________________________________________ Vacated and remanded by published opinion. Chief Judge Wilkinson wrote the opinion, in which Judge Hall and Senior Judge Butzner joined.
_________________________________________________________________ *2 COUNSEL
ARGUED: Gwynn X. Kinsey, Jr., Assistant Attorney General, Crim- inal Appeals Division, OFFICE OF THE ATTORNEY GENERAL, Baltimore, Maryland, for Appellants. Peter Edward Keith, GAL- LAGHER, EVELIUS & JONES, Baltimore, Maryland; Gary Wilmer Christopher, Assistant Federal Public Defender, Baltimore, Maryland, for Appellees. ON BRIEF: J. Joseph Curran, Jr., Attorney General of Maryland, Criminal Appeals Division, OFFICE OF THE ATTOR- NEY GENERAL, Baltimore, Maryland, for Appellants. Nevett Steele, Jr., Michael J. Gentile, Towson, Maryland, for Appellee Booth; William B. Purpura, Baltimore, Maryland, for Appellee Baker; Fred Warren Bennett, CATHOLIC UNIVERSITY LAW SCHOOL, Washington, D.C., for Appellee Oken; Charles G. Bernstein, Balti- more, Maryland; Neil Ian Jacobs, Rockville, Maryland, for Appellee Collins; Jerome H. Nickerson, Bel Air, Maryland, for Appellee Gil- liam. _________________________________________________________________ OPINION
WILKINSON, Chief Judge:
Five death row prisoners sued the State of Maryland, its Governor,
Attorney General, and a state prison warden under 42 U.S.C. § 1983.
The prisoners sought a declaratory judgment that Maryland was not
entitled to the benefits of the new chapter 154 of the federal habeas
corpus statute, 28 U.S.C. §§ 2261-2266, and an injunction prohibiting
Maryland from raising chapter 154 as a defense in the inmates' pro-
spective federal habeas corpus cases. After denying the defendants
Eleventh Amendment immunity, the district court granted plaintiffs
the requested relief. Booth v. Maryland,
I.
The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) brought a number of changes to the federal habeas corpus *3 statute. The new chapter 154, entitled "Special Habeas Corpus Proce- dures in Capital Cases" creates incentives for state governments in capital cases. States that meet certain requirements for the appoint- ment and compensation of counsel in state post-conviction proceed- ings are known as "opt-in" states and are entitled to prompter and more deferential review in federal habeas proceedings. 28 U.S.C. §§ 2261-2266. Specifically, prisoners filing federal habeas suits in "opt-in" states must file their petitions within 180 days after the final state court affirmance of the conviction and sentence on direct review. 28 U.S.C. § 2263(a). In an opt-in state, the federal habeas court must, for example, consider the case before all noncapital matters, § 2266(a), and must enter a final judgment within 180 days from the filing date, § 2266(b)(1)(A). As a general matter, the court may not consider claims that were not raised and decided on the merits in state courts, § 2264, and it may not allow amendments to the habeas peti- tion after an answer to the petition has been filed,§ 2266(b)(3)(B). All five plaintiffs in this case have previously filed state petitions for post-conviction review that have been reviewed by the Maryland Court of Appeals. One of the five inmates had filed a federal habeas petition at the time this action was brought, and the other four planned to do so after their state remedies were exhausted. The prisoners brought this action seeking a declaratory judgment that the State of Maryland had failed to comply with the requirements of chapter 154 and an injunction forbidding Maryland from invoking chapter 154 until the state did comply.
The district court agreed with the inmates. After finding that Mary-
land and its officials were not entitled to Eleventh Amendment immu-
nity, the court ruled that Maryland had failed to comply with three of
the requirements of chapter 154. Specifically, the court held that
Maryland did not have codified "competency standards" for appoint-
ment of post-conviction counsel, 28 U.S.C. § 2261(b), that the com-
pensation rates for these attorneys did not satisfy the statute, id., and
that Maryland's policy of disallowing payment for computerized legal
research and photocopying expenses violated chapter 154's require-
ment of reimbursement of "reasonable litigation expenses," id. The
court therefore declared that Maryland was "not presently entitled to
invoke the benefits of Chapter 154" and enjoined the state from
*4
attempting to invoke the new standards in any future federal habeas
actions brought by the five inmates. Booth,
II.
We begin with a brief reiteration of the basic history of the Elev- enth Amendment. At the time the Constitution was drafted,
[t]he right of the Federal Judiciary to summon a State as
defendant and to adjudicate its rights and liabilities had been
the subject of deep apprehension and active debate .. . but
the existence of any such right had been disclaimed by many
of the most eminent advocates of the new Federal Govern-
ment, and it was largely owing to their successful dissipa-
tion of the fear of the existence of such Federal power that
the Constitution was finally adopted. 1 C. Warren, The
Supreme Court in United States History 91 (rev. ed.
1937)(quoted with approval in Edelman v. Jordan , 415 U.S.
651, 660 (1974)).
In the first few years of its existence, the Supreme Court nonethe-
less heard numerous suits against states. In the most famous of these,
Chisholm v. Georgia,
The judicial power of the United States shall not be con-
strued to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign
State. U.S. Const. amend. XI.
Although the Amendment is silent as to suits brought against a
state by it own citizens, the Supreme Court "has consistently held that
an unconsenting State is immune from suits brought in federal courts
by her own citizens as well as by citizens of another State." Edelman,
Under settled precedent, then, the Eleventh Amendment protects the sovereign rights of states from abridgement by the federal judi- ciary. Thus, the State of Maryland and the named officials are not subject to this suit unless the plaintiffs can demonstrate that this case falls within one of the exceptions to Eleventh Amendment immunity. III.
The defendants assert the Eleventh Amendment as an absolute bar
to this action. The plaintiff inmates, on the other hand, argue that the
defendants' Eleventh Amendment defense fails on three grounds: (1)
the case concerns a continuing violation of federal law and therefore
_________________________________________________________________
1
Some Justices distinguish between Eleventh Amendment immunity
(applicable when a state is sued by citizens of a foreign state) and sover-
eign immunity (applicable when a state is sued by its own citizens). See,
e.g., Edelman,
A.
The prisoners first argue that the doctrine of Ex Parte Young
defeats the state defendants' claim of immunity. In Ex Parte Young,
the Supreme Court ruled that the Eleventh Amendment does not bar
suits seeking to enjoin state officials from committing continuing vio-
lations of federal law.
The reasons for limiting the Ex Parte Young exception to Eleventh
Amendment immunity are not difficult to discern. Requiring an ongo-
ing violation of federal law sets a minimum threshold for abrogating
a state's constitutional immunity. To have a state sued in federal court
without even a contention of an ongoing violation of federal law
would only multiply "the indignity of subjecting a State to the coer-
cive process of judicial tribunals at the instance of private parties."
*7
Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc.,
The plaintiffs' Ex Parte Young argument in this case founders on
a basic point -- they have shown no continuing violation of federal
law. In fact, plaintiffs can demonstrate no violation of federal law at
all -- past, present, or potential. They allege only that Maryland has
announced an intention to invoke a federal statutory defense in future
habeas corpus actions. If, for example, a prisoner files a habeas cor-
pus petition after chapter 154's six-month deadline has expired,
Maryland is free to move for dismissal based on lack of timeliness.
See 28 U.S.C. § 2263(a). In response, the prisoner is free to argue that
a one-year rather than a six-month deadline applies because Maryland
is not in compliance with the requirements of chapter 154. See 28
U.S.C. § 2244(d)(1) (one-year filing deadline for all federal habeas
corpus petitions). Whether or not Maryland successfully invokes the
defense, the state cannot have violated federal law merely by raising
it. To hold otherwise would ignore the limits of the Ex Parte Young
exception. Seminole Tribe,
We disagree. A party bringing suit must always take the possibility
of a successful affirmative defense into account in its litigation strat-
egy. In many different actions, litigants must file a case and plot a
strategy without clear foreknowledge of how the case will unfold. To
file earlier rather than later is a decision many a prudent litigant will
make. A plaintiff bringing suit under the Federal Tort Claims Act
("FTCA"), for example, was for many years uncertain as to whether
its two-year statute of limitations, 28 U.S.C. § 2401(b), began to run
at the time he discovered his injury, at the time he discovered the
cause of his injury, at the time he should have known of both the
injury and cause, or at the time he became aware that the injury was
negligently inflicted. See United States v. Kubrick,
Plaintiffs can, of course, avail themselves of an opportunity to decide the applicability of chapter 154 in a proceeding which is less damaging to state sovereignty. They need only raise their contention during federal habeas corpus proceedings. In order to ascertain what procedures will govern federal review of a capital case, a federal court may be required to determine whether the state has satisfied the *9 requirements of chapter 154. This is true even where the prisoner meets the earlier filing deadline because chapter 154 implements sev- eral other changes. Where it applies, for example, chapter 154 requires a federal district court to: (1) review only claims that were raised before a state court, 28 U.S.C. § 2264, (2) consider the case before all noncapital matters, § 2266(a), and (3) enter a final judg- ment within six months from the filing date, § 2266(b). Hence, indi- vidual habeas actions are a natural and adequate forum in which to challenge chapter 154's applicability. These rulings, like any other, would be subject to appeal.
Indeed, many plaintiffs have sought and obtained adjudication of
a state's eligibility to invoke chapter 154 in precisely this manner. In
Hamblin v. Anderson,
Under these circumstances, we find no authorization in Ex Parte
Young for abrogating Maryland's Eleventh Amendment immunity.
Since injunctive relief is not available in this case under Ex Parte
Young, declaratory relief is not available either. Green,
B.
Plaintiffs next claim that this case falls within the habeas corpus
exception to Eleventh Amendment immunity. It is true that the Elev-
*10
enth Amendment offers no bar to a habeas corpus petition against a
state which is holding a prisoner in violation of the Constitution or
laws of the United States. From the earliest times, Eleventh Amend-
ment immunity has not prevented actions seeking a writ of habeas
corpus, whether the defendant be the sovereign itself, or some agent
of the sovereign. Fitzpatrick v. Bitzer,
This action, however, involves no petition for habeas corpus. The prisoners do not challenge their convictions or sentences. They do not complain in this action that the State of Maryland or its officials are violating their rights by holding them in custody in violation of the Constitution or laws of the United States. They do not request any relief within the scope of the habeas corpus statute. By their own admission the plaintiffs brought this suit with the specific objective of obtaining a ruling apart from any actual federal habeas petitions. While the controversy "involves" the federal habeas corpus statute, it is not an action for a writ of habeas corpus. The prisoners cannot, therefore, invoke the habeas corpus exception to Eleventh Amend- ment immunity.
C.
Finally, Maryland's announced intention to invoke chapter 154
does not constitute a waiver of Eleventh Amendment immunity on the
part of the state. This waiver theory fails under Atascadero State Hos-
pital v. Scanlon,
Neither theory of waiver applies to this case. The prisoners cite no
Maryland statute or constitutional provision waiving Maryland's
immunity. Likewise, the inmates point to no element of the old fed-
eral habeas statute or the AEDPA amendments which would condi-
tion state "participation" on the state's consent to be subject to a non-
habeas civil suit. In fact, the AEDPA is replete with provisions which
evidence an intent to increase federal judicial deference toward the
states. See, e.g., 28 U.S.C. § 2254(d)(1) (no relief for claims decided
in state court unless decision was contrary to clearly established fed-
eral law); 28 U.S.C. § 2254(e)(1) (factual determination of state court
presumed correct unless rebutted by clear and convincing evidence);
28 U.S.C. § 2264(a) (in capital cases in complying states, federal
court can consider only claims that were raised and decided on merits
in state court). To find that the AEDPA implicitly subjected states to
increased exposure to lawsuits would be to stand the statute on its
head, as well as to flout the criteria set forth in Atascadero. In short,
no express or implied waiver occurred in this case.
2
_________________________________________________________________
2
Plaintiffs contend that the Attorney General of Maryland somehow
expressly waived immunity in this case. This court has held, however,
that the Attorney General of Maryland lacks the authority to waive Elev-
enth Amendment immunity on behalf of the state and its officials.
Linkenhoker v. Weinberger,
IV.
Plaintiffs have repeatedly urged us to rule on their contentions in this consolidated action rather than in individual habeas petitions because of considerations of judicial economy and convenience. They maintain that if "five judges of the lower court would each have power and jurisdiction during the five inmates' individual habeas pro- ceedings to consider whether Maryland satisfies the requirements of Chapter 154, then as a matter of judicial economy and power this question can surely be addressed by a single judge in a single pro- ceeding." Appellees' Brief at 15. They further contend that this approach is "appropriate, cost-effective and consistent with the intent of Congress to control the expense of litigation." Id. at 22.
The Constitution, however, is not simply a document of judicial
economy and convenience. It might, of course, be more convenient
for government to ignore the requirements of the warrant clause, or
the right against self-incrimination, or the dictates of due process, yet
it goes without saying that our founding charter does not permit such
short-cuts. The same document that guarantees rights to citizens
imbues the states with attributes of sovereignty. Here Maryland has
interposed that sovereignty against the efficiencies embodied in con-
solidated proceedings and in the Declaratory Judgment Act. This it
has every right to do. "Policy, no matter how compelling, is insuffi-
cient, standing alone, to waive [sovereign] immunity." Library of
Congress v. Shaw,
V.
We thus vacate the judgment of the district court and remand with instructions to dismiss. In view of our disposition, we have no occa- sion to visit the merits of the district court's rulings.
VACATED AND REMANDED