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July 28, 2005 - American Civil Liberties Union (ACLU-US)

ACLU Letter to the Senate Judiciary Committee Regarding S. 1088, the Streamlined Procedures Act of 2005

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The Honorable Arlen Specter
Chair, Senate Judiciary Committee
Washington, D.C. 20510

The Honorable Patrick Leahy
Ranking Member, Senate Judiciary Committee
Washington, D.C. 20510

S. 1088, the Streamlined Procedures Act of 2005 is Unconstitutional And Would Allow Innocent People to be Executed

Dear Senator Specter and Leahy:

Senator Kyl (R-AZ) has introduced S.1088, the Streamlined Procedures Act of 2005, which will essentially eliminate state prisoners' ability to challenge a wrongful conviction in federal court. By severely limiting the grounds under which state prisoners may file a Petition for a Writ of Habeas Corpus under 28 U.S.C. ß 2254, this legislation violates fundamental constitutional principles including the Separation of Powers doctrine, as well as undermining the independence of the federal judiciary. S.1088 infringes on state prisoners' constitutional right to access federal courts - often the court of last resort for the innocent and wrongfully convicted - whether the prisoner is under a death sentence or incarcerated after a state criminal conviction. The Senate Judiciary Committee is scheduled to mark up this bill on Thursday, July 28, 2005 and we strongly urge you to oppose this legislation.

S.1088 Would Result In Incarcerated Persons Who Have Had Their Constitutional Rights Violated Never Getting Their Day In Federal Court.

Since 1976, when capital punishment was resumed in some states, federal habeas corpus proceedings have been the principal means by which the federal courts have forced the states to adhere to constitutional standards for the imposition of the death penalty. Those standards are essential if capital punishment is to be administered in a fair and nondiscriminatory manner. Constitutional jurisprudence in this area can be arcane and complex ñ as a result, state trial courts often fail to interpret federal law governing prisoners' claims correctly. In addition, in many states, trial court judges are subject to tremendous political pressure to uphold convictions, no matter how egregious the constitutional violations might be - including claims of actual innocence. Thus, in many cases federal habeas corpus proceedings become the court of last resort for state prisoners with claims ranging from whether adequate legal counsel was provided to indigent (and often minority) defendants, to whether an innocent person may have been convicted wrongly. As the Framers so accurately predicted, Article III federal judges are the ones who uphold the federal Constitutional rights of those least likely to able to defend themselves against the state. If legislation such as S.1088 is enacted, the wrongfully convicted will be sent to their deaths without ever having an opportunity to establish their innocence in front of a federal judge.

This legislation would require state prisoners to litigate their federal claims in state court at the same time as they litigate any state claims regarding their incarceration. Under current law state prisoners are required to exhaust all state court remedies before pursuing federal habeas corpus claims in federal court. Presently, if a prisoner begins federal habeas proceedings before state litigation is complete he or she can postpone consideration of federal claims during state proceedings and continue federal litigation after exhausting state remedies. S.1088 would require federal courts to dismiss federal claims that are brought to court before the state court process is exhausted. There are many examples of persons incarcerated in state prisons who were exonerated after filing federal habeas claims prior to the completion of their state litigation; Thomas Goldstein's story is just one example:

In 1980, Thomas Goldstein was wrongfully convicted of murder in Long Beach, California and sentenced to 27 years to life. Prior to this, Goldstein had never been convicted of any crime. He is a native of Kansas and a Vietnam Veteran. The prosecution's case against Goldstein was based on one eyewitness, who reported seeing Goldstein run from the scene, and the 'snitch' testimony of one Edward Fink, who claimed Goldstein confessed to him when the two were housed together while Goldstein was in jail awaiting trial. Goldstein, acting as his own attorney, obtained records on Fink from a lawyer representing another inmate convicted based on Fink's testimony. He then used that information to file a new habeas petition in federal court. The court was sufficiently persuaded by Goldstein's pleadings to order an evidentiary hearing and appointed an attorney to represent him.

The investigation by Goldstein's attorneys revealed the prosecutor had allowed Fink to provide false testimony against Goldstein and then failed to disclose to the defense that Fink had been promised special treatment in exchange. Goldstein's attorneys then went back to the eyewitness, who told them that he had never been sure about his identification, but had been pressured by the police to pick Goldstein. The federal district court granted Goldstein relief and the Ninth Circuit affirmed, ordering Goldstein's immediate release. In 2004, after 24 years in prison, Thomas Goldstein finally walked out of prison, a free man.

If S.1088 had been in effect when Goldstein filed his federal habeas corpus petition it would have been denied, as he had failed to exhaust all of his federal claims in state court first. Goldstein had no money for an attorney and filed his claims in federal court himself. After appointing an attorney, the federal court gave him additional time to return to state court to exhaust his federal claims. The California Supreme Court, however, refused to even review the case, issuing a 'postcard' denial. Goldstein's attorneys then returned to federal court - where he was promptly granted relief. If S. 1088 had been the law, Goldstein would have been forever barred from having a federal court consider his claims because as an indigent pro se defendant, he was not familiar with the exhaustion requirement of ß 2254. Denied access to the federal court, Thomas Goldstein would have been an innocent man possibly serving a life sentence for a crime he did not commit.

There are three exceptions to the exhaustion of state remedies requirement under the bill: cases that involve a new, retroactively applied, rule of constitutional law decided by the Supreme Court; a factual predicate that could not have been previously discovered; and factual claims established by clear and convincing evidence that no reasonable jury could have found the petitioner guilty[1]. In addition, the petitioner must establish that denial of relief would be contrary to clearly established Supreme Court constitutional precedent.

None of these exceptions provide any real hope to a wrongly convicted prisoner. First, it is extremely rare for the Supreme Court to hand down opinions that apply retroactively. Also, requiring petitioners to establish that recently discovered facts could not have been uncovered during a trial under the due diligence standard will continue to result in innocent people remaining in prison. In many cases, facts, which create the basis for a federal claim, may be discovered years after state court review has begun or concluded. This aspect of the bill will foreclose the opportunity for many incarcerated people to prove their innocence. Many wrongful convictions are the result of inadequate appointed defense counsel at the trial stage. Under this standard an incarcerated person who discovers new facts to support his innocence, which his ineffective trial lawyer did not uncover in the early stages of the case, would be barred from presenting the evidence to a federal court. Therefore, these cases will not qualify for federal habeas relief and innocent people could be executed or remain in prison for a crime many years after their innocence has been proven.

In addition, this bill will allow state prisoners only one opportunity during the first year after the habeas petition is filed or before the state's answer to the petition is filed to amend their petition.[2] Many state prisoners, such as Thomas Goldstein, are pro se litigants who may not recognize important legal issues that could make the difference between years of incarceration and their freedom. For example in Goldstein's case, S.1088 would have barred the federal court from reviewing the merits of his claim. Acting as his own attorney, when Goldstein first filed his petition in federal court, he raised only the claim of misconduct of the prosecutor. Once the new information from the eyewitness was received, his appointed attorney amended the petition, which would be eliminated under S. 1088. The California Supreme Court declined to review his case. If Goldstein had presented his federal claims in state court as required by S.1088 and been denied review, it would[c1] have been very difficult for him to relitigate those claims in federal court after a state court had considered them. State prisoners will not have their claims heard in federal court or their petitions amended in order to pursue claims and correct legal errors.

Federal Courts Would Be Barred From Reviewing Wrongful Convictions Based on Fundamental Constitutional Errors.

Section 4 of S.1088 precludes federal courts from hearing claims state courts have found to be procedurally barred and claims involving procedural default due to ineffective assistance of counsel. [3] The constitutionality of this provision, which would bar federal courts from deciding a case such as those involving the denial of a petitioner's federal constitutional right to counsel is questionable. Consequently, state and federal courts would be prohibited from considering federal constitutional claims regardless of the merit of the claims, if a state court determines the claim is procedurally barred. Thus, federal courts would not be able to grant relief to a prisoner represented by inadequate defense counsel who failed to preserve a legal claim that due to the inadequacy of counsel would not exist in the first place. It is the proverbial Catch-22, except that the cost is in lives of the innocent and wrongfully convicted.

This provision of the bill also bars federal courts from considering claims that state courts deny on their merits and which were not raised properly under state procedural rules. Thus, if a state court denies a claim both on its merits and for procedural reasons, under this legislation, a federal court is barred from waiving the procedural default and considering the claim on its merits. Pro se litigants often are not familiar with court rules and procedures, therefore may miss deadlines to file documents with the court. Also, many wrongful convictions are due to ineffective counsel who may miss filing deadlines or do not adequately identify issues. This bill bars federal courts from hearing these claims based on state court rulings no matter how bad a person's lawyer was or how many mistakes that lawyer made. It is unconscionable to allow an innocent person to remain in prison because an incompetent lawyer missed a court deadline. It is intolerable to allow someone to be executed for that reason.

Moreover, federal courts would be forced to accept state court determinations of federal constitutional claims of plain or fundamental error. Under this legislation, federal courts would be prohibited from reviewing any procedurally barred claims which the state court did not find rose to the level of plain or fundamental error. Plain and fundamental errors involve basic rights guaranteed under the Constitution and which typically require courts to review them even if they have previously been procedurally defaulted.[4] S. 1088 will strip federal courts of jurisdiction to review even the most egregious errors involving violations of basic constitutional rights.

Federal Court Would Essentially Be Unable To Release A Person Who Was Given A Sentence Longer Than He or She Deserved.

Most habeas corpus petitions that challenge a person's criminal sentence are brought to federal court based on a constitutional error that under the law is considered 'harmless' or 'non-prejudicial.' These types of legal errors do not involve substantial rights and do not necessarily result in a person being released for custody.[5] Section 6 of S.1088 would prevent federal courts from hearing claims in death penalty cases that involve claims of cruel and unusual punishment under the Eighth Amendment or whether a defendant's lawyer was ineffective during the sentencing phase of a capital case, which are typically bifurcated. [6] Federal courts would be unable to review a state court decision to determine whether a constitutional error was in fact 'harmless' or 'non-prejudicial' under S.1088. However, federal courts would be expected to resolve constitutional claims in state cases without the ability to make determinations on important federal legal issues. This provision of the bill has serious implications for the independence of the federal judiciary. Congress' attempt to strip Article III courts of their constitutional habeas corpus jurisdiction in cases[7] is unconstitutional under the doctrine of Separation of Powers. The American system of checks and balances was created to ensure limits on the exercise of government authority and that the protection of individual liberty does not depend on the good faith of government officials. Removing jurisdiction over many habeas claims from federal courts ignores the separation of powers doctrine by eliminating the role of the courts in upholding constitutional rights of prisoners.

The Authority To Decide When A State Has A Competent System Of Legal Representation In Death Penalty Cases Would Be Taken Out Of The Hands Of The Courts.

Presently, if a state establishes an effective system for providing competent counsel to indigent defendants in death penalty proceedings it will qualify for a relaxed set of procedural rules for federal habeas proceedings that are beneficial to the state. After enactment of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), [8] federal courts have been responsible for determining whether states are providing competent counsel in death row habeas cases. No state has qualified under the so-called 'opt-in' provision of AEDPA. Section 9 of S. 1088 would strip federal courts of jurisdiction to consider cases in states that 'opt-in' under Chapter 154 of the AEDPA.

In addition, federal courts would no longer decide whether a state has established a competent counsel system for indigent persons in capital punishment proceedings under this bill,[9] but would give the decision to the U.S. Attorney General. Giving the Attorney General, the chief prosecuting officer of the United States, the authority to effectively decide whether state defense indigent defense counsel systems pass constitutional muster is inappropriate and demonstrates a lack of sincere interest in providing adequate representation in post-conviction cases.

S.1088 Would Change The Rules Midstream In Cases That Have Been In The Courts For More Than 10 Years.

Sections 7 and 14 of the legislation would allow provisions of this bill to apply retroactively to cases pending at the time the AEDPA was enacted and cases pending at the time this bill becomes law. The constitutionality of Congress' authority to retroactively apply legislation is questionable, at best. This effectively results in Congress changing the rules in the middle of many pending cases. In addition, this provision would result in more innocent people languishing in prison while being unable to prove their innocence. The case of Gloria Killian is a good example of how applying this legislation retroactively will have devastating consequences.

In 1986, Gloria Killian was wrongfully convicted of first-degree felony murder in Sacramento, California. The case against her was based almost entirely on the testimony of informant witness Gary Masse who was serving a sentence of life without parole for the same murder. Killian came very close to being sentenced to death for a crime she did not commit.

The attorney for one of Masse's cohorts discovered letters that Masse sent to the prosecutor stating that he had 'lied his ass off on the stand' to get Killian convicted. The prosecutor failed to give these letters to Killian's attorneys. Killian, however, had no money and no court appointed attorney to pursue the evidence. After a benefactor gave Killian the money to hire an attorney, her lawyer first pursued her claims in state court. Nonetheless, the California Supreme Court, failed to give the case any consideration, issuing a 'postcard' denial. Killian's attorney then filed a federal habeas petition and was granted an evidentiary hearing. The Ninth Circuit reversed her conviction and ordered Killian released in 2002, after more than 16 years in prison.

If S.1088 had been in effect, Killian would never have had a fair hearing in court. Because Killian did not yet know about the letters that the witness sent to the prosecutor, she did not have the evidence she needed to file her petition within one year of the end of her appeals in state court. When she finally got the information, Congress passed the Anti-Terrorism and Effective Death Penalty Act, imposing new deadlines on filing habeas petitions. But because the act only affected cases from that point on, not pending cases, Killian was able to file her petition by the one-year deadline of the effective date, making her petition timely. However, S.1088 applies to all pending cases, immediately and permanently cutting off people's access to the courts with no warning. If Killian were still in prison now and if this legislation were passed, she would be forever barred from bringing her case to court, with no warning at all.


If the goal of S.1088 is to expedite state habeas corpus cases through the federal system, it will not achieve that objective. In light of the many constitutional questions this bill creates, the litigation that will follow enactment will continue to tie up federal courts for years to come. We strongly urge you to oppose S.1088 in order to preserve constitutional authority of federal courts to give people incarcerated at the state level access to federal court. We look forward to working with you on this matter.

Sincerely, Caroline Fredrickson, Director & Jesselyn McCurdy, Legislative Counsel
Cc: Senate Judiciary Committee


[1] Section 2 of the legislation references 28 U.S.C. Sec 2254 (e)(2) as valid grounds for federal courts to review habeas petitions. Title 28 U.S.C. Sec. 2254 refers to claims that relies on (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence and the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense. In addition, if the denial of such relief is contrary to, or would entail an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.

[2] Under S.1088 habeas petitioners could amend their application more than once when (i) a new rule of constitutional law, is made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence and the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense. See 28 U.S.C. Sec.2244 (b) (2).

[3]Section 4 of the legislation references 28 U.S.C. Sec 2254 (e)(2) as valid grounds for federal courts to review habeas petitions. Title 28 U.S.C. Sec. 2254 refers to claims that rely on (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence and the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense.

[4] Fed.R.Crim P. 52.

[5] Id.

[6] Section 6 of S.1088 includes an exception for when an error is considered a structural error. The Supreme Court labels the class of errors not subject to harmless error analysis as "structural defects in the constitution of the trial mechanism . . . .' Arizona v. Fulminante, 499 U.S. 279, 309 (1991). These errors are reversible per se because "they defy analysis by 'harmless-error' standards." Ibid. They are deemed structural not because the rights are more fundamental than others, but because analyzing them for harmless error makes no sense. In the two classic examples of structural error, the complete denial of counsel and the biased judge, the odds are so heavily stacked against the defendant that the "criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair." Rose, 478 U.S. at 577-578 (citation omitted). However, few cases are reversed based on a structural error. [7] US Constitution Article I Section 9 states ' [t]he Privilege of Writ of Habeas Corpus shall not be suspended, unless when Cases of Rebellion or Invasion the public safety may require it.

[8] Title 28 U.S.C. Sec. 2261 et. al.

[9] Section 9 of the legislation references valid grounds for federal courts to review habeas petitions in 'opt in' states when the claims that relies on (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence and the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense.

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