Habeas Standards of Review Under 28 U.S.C. Section 2254(D)(1): A Commentary on Statutory Text and Supreme Court Precedent

Abstract

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") extensively revised of the law of habeas corpus as practiced within the federal judicial system. One of those revisions is found in 28 U.S.C. section 2254(d), which limits a federal court's authority to grant writs of habeas corpus on behalf of persons held in state custody. Consistent with this section, a federal court's jurisdictional authority is constrained by three specified standards of review, two pertaining to errors of law and one pertaining to errors of fact. The focus of this article is on subsection (d)(1), which creates the critical review standards applicable to errors of law. A mere seventy-six words in length, subsection (d)(1) is enormously important because it controls all "error of law" access to federal habeas review. As a practical matter, the operational scope of subsection (d)(1) depends on the interpretation of its two key textual components. The first limits the grant of federal habeas to state court decisions that contravene "clearly established Federal law, as determined by the Supreme Court." Careful attention to these words is required to appreciate the nature and scope of the claims that may be asserted on habeas. The second component creates two alternative standards of review, one pertaining to state court decisions that are "contrary to" that clearly established federal law, and the other pertaining to state court decisions that "involve an unreasonable application of" that law. This article presents a detailed examination of the text of section 2254(d)(1) and a close examination of all the key Supreme Court precedents interpreting and applying that text, including the quartet of section 2254(d)(1) decisions issued during the October 2002 Term of the Court. The goal is to capture a sense of how one might navigate this text in the real world of habeas litigation. The author's ultimate conclusion is that the text is more significant than the precedents construing it and that properly understood the text is not the draconian measure many have assumed it to be.