I want to emphasize that these problems are not limited to death penalty cases. On the contrary, they apply across the board, to all of the convictions that reach the federal habeas stage -- murder, rape, robberies, and other violent crimes. Only a small percentage of these cases involve the death penalty.

The Streamlined Procedures Act (SPA) would help protect the rights of victims, and encourage the fair and effective use of the criminal justice system, in all of these cases.

I. PROBLEMS IN CURRENT HABEAS LITIGATION

DELAY

There are many costs associated with delay. The victims pay a heavy emotional cost, of course, because they and their families must relive the crimes again and again, without any closure or sense of justice. But they have no choice but to remain involved. Otherwise, the criminal is left alone to make his arguments, and pose as the victim of an unfair system, without any effective rebuttal.

The states also bear the cost of delay, because we have to pay for prosecutions that never really end. Let's take a small example. In the past five years, the number of attorneys in my office who are assigned as full-time habeas attorneys has increased by 400%.

The public, too, bears the cost of delay, both because it is expensive to support drawn-out litigation, and because time dilutes the effectiveness of the criminal justice system. Deterrence works best when punishment is swift and sure. When the process is open-ended, and nothing ever seems final, the system breaks down.

I want to emphasize one other important point: The truth is a casualty of delay. As years pass, memories fade. Evidence is lost. Witnesses who were once sure cannot remember everything. Other witnesses disappear. Some witnesses, who never wanted to get involved in the first place, are extremely reluctant to testify again years later. In fact, the longer the process goes on, the more opportunities exist for witness tampering and intimidation. After all, police and judges cannot protect witnesses forever, and, too often a "recantation" (or other new evidence) is simply the product of coercion. The point is, repetitive hearings and re-litigation of guilt do not increase reliability, and they can discourage witnesses from coming forward in the first place.

Causes of Delay -- Unenforced Deadline & "Equitable Tolling

In 1996, Congress and President Bill Clinton, with AEDPA, tried to end unnecessary delays by creating a one-year deadline for habeas cases. Delays still happen, though, because the deadline is not strictly enforced. Sometimes the courts invoke "equitable tolling" and refuse to enforce the deadline simply because its application might be "unfair" to the criminal, which is an unpredictable standard.

The deadlines are often suspended on "equitable" grounds, often in absurd situations. One defendant named Robert Graham, who pled guilty to rape and a series of armed robberies in 1977, filed a habeas petition twenty-four years later. His "excuse" for his late filing was that he had no lawyer, couldn't understand legal documents, and wasn't able to sufficiently "trust" anyone to help him with the preparation of a federal habeas petition. We pointed out that he had filed other legal petitions in state and federal court over the years, as well as many written prison grievances, and "trust" had never been a problem before. But the court held a hearing, and appointed counsel and a psychological expert for Graham. We were forced to hire our own expert, at a cost of many thousands of dollars. Our expert testified that Graham had been fully capable of filing on time. But the district court held that Graham's "difficulty in trusting and seeking the assistance of others" deserved "equitable tolling" and could go forward with his case. [Graham v. Kyler, 2002 U.S. Dist. LEXIS 26639, *30 (E.D. Pa. 2002)].

Or there is Mark Garrick, who robbed and murdered a man in 1975. Garrick said he couldn't file on time (more than twenty years later) because he didn't have enough money for the federal filing fee and he didn't have the right forms to file without it. We found out, however, that the prison did have the right forms, and anyway a few days before the filing Garrick had plenty of money in his account, but he spent most of it at the prison commissary on junk food.

We eventually won that case in the district court, but only after many briefs and a hearing. Even after all that, the Third Circuit somehow concluded this was a close case, and allowed Garrick (with his appointed counsel) to appeal. As a result, this case is still ongoing.

Needless to say, it is frustrating to see these cases, and others like them, continue to drag on. The "equitable tolling" standard is slippery and needs fixing.

Slow Litigation in the Federal Courts

Part of the problem is that federal courts often take too long to decide cases. We have seen some habeas matters sit in the district and circuit courts for years with no action. And there is almost nothing we can do about it.

My colleague, Ronald Eisenberg, testified before the U.S. House subcommittee considering H.R. 3035 and H.R. 3060 about several cases which have languished for years in federal court, without any decision at all. As Mr. Eisenberg testified,

"Federal habeas courts have great power, simply because they are last in line. But they have little responsibility, because they are so far removed in time and space from the circumstances of the crime and the subtleties of the state proceedings. Accordingly, they have small motive to act expeditiously or efficiently, to give credit to the judgment of their brethren in state courts, or to consider the needs of crime victims. The only way that balance can be restored is by congressional statute."

Evading the Statute of Limitations by "Staying" Mixed Habeas Petitions

One common way in which prisoners and U.S. District Courts defeat the one-year habeas deadline is through "stay and abey" orders. What happens is this: Prisoners file habeas petitions that contain some claims that have already been rejected by the state courts, and one or more new claims. The District Court then "stays" the petition, and places it in suspense, while the petitioner tries to exhaust the new claim(s) in state court, in effect starting the process over again.

It hardly needs mention that this practice makes the one-year deadline meaningless. It converts habeas into a jurisdictional foot-in-the-door, where prisoners can park their claims without worrying about deadlines. Plus, the stay-and-abey practice effectively rewards prisoners who have failed to timely raise their claims in state courts in the first place.

The U.S. Supreme Court has recently partially restricted this kind of stay, in Rhines v. Weber, 125 S. Ct. 1528 (2005), but, under Rhines, a petitioner will still be able to get such a stay upon a showing of "good cause." This vague standard promises to create a wealth of new litigation. In the meantime, we continue to see many such stay orders issued by federal district courts, ensuring years of new delays.

RE-LITIGATION OF OLD CLAIMS

That is the law. It is relatively simple, and it makes sense. If federal courts were free to re-weigh the evidence or litigate new claims, the process would truly be endless, unworkable, and unconstitutional. State trials would merely be a prelude to the "main event" in federal court. States would be stripped of the power to enforce their own criminal laws.

Too often, however, federal courts do re-weigh the evidence, or entertain claims that have not been decided by the state courts. There are a number of ways that federal courts can do this. Each method allows the court to evade both the exhaustion requirement and the AEDPA deference standard.

Ignoring "Inconsistently Applied" State Rules

When a state court rejects a claim because it is improper under the state's own rules -- for example, it may be waived or raised too late -- a later federal habeas court is obligated to defer to the state court's application of its own rules, and must also decline to entertain the claim. Otherwise, a prisoner could violate any state procedural rule, knowing that, later, the federal court will hear all of his claims anyway. But under the "inadequacy" doctrine, a federal court may decide that the state rule is "inconsistent" and hear the claim anyway, even though the state courts have held that its rules have been violated.

In practice, this means that federal courts can ignore all of what happened in state court, and entertain defaulted claims as if they were fresh and properly preserved, simply by finding that a particular state rule is, in the opinion of the federal court, inconsistent. This is a powerful way around AEDPA's various restrictions. For example, the Third Circuit recently held that Pennsylvania's own time-limit on state collateral review was inconsistently applied in death penalty cases for the first few years after its enactment in 1996, despite the fact that the deadline has always been strictly and uniformly applied exactly as it was written. [See Bronshtein v. Horn, 404 F.3d 700, 707-710 (3d Cir. 2005).] For the Third Circuit, the mere possibility that death penalty defendants could imagine an exception to the deadline in capital cases -- an exception that is nowhere in the statute, and which was never applied to the time-bar by Pennsylvania courts -- rendered the state deadline somehow unpredictable and inadequate, until the State Supreme Court explicitly rejected it. As a result, there is now apparently no such thing as default in Pennsylvania capital cases pending in the late 1990's, which is virtually all of the cases now pending in habeas. Criminals in these cases are presumably able to raise entirely new claims and introduce new evidence, without any showing of innocence. The burden on the Commonwealth of Pennsylvania to relitigate these cases is huge, and the emotional burden on the victims' families is incalculable.

The loose application of "nadequacy" creates a perverse incentive for states to adopt rules with absolutely no exceptions and no room for judicial discretion. This is not a desirable result, for prisoners or anyone else.

The "Ends of Justice" Exception

Another way around procedural default is through use of the "independence" requirement -- that is, a state procedural rule must be "independent" of federal law, or the federal courts can overlook it. The rationale is, if the state rule is intertwined with, or dependent on, federal law, then the application of the rule amounts to a decision on the merits of the federal claim. But, sometimes, the "independence" requirement is applied in peculiar ways. For example, many states have an "ends of justice" exception to their rules and deadlines. Some federal courts have held that, if the "ends of justice" exception involves a cursory review of the merits of the claim -- however fleeting -- then the application of the rule is "dependent"on federal law and there is no default. [See, e.g., Russell v. Rolfs, 893 F.2d 1033 (9th Cir. 1990) (no default under Washington State rule because it includes "ends of justice" exception).

In addition to providing yet another mechanism for evading AEDPA's deference requirements, as well as the rule of exhaustion, this creates another perverse incentive for states to create absolute rules with zero exceptions, whether it serves justice or not.

The "Actual Innocence" Standard

A showing of "actual innocence" allows petitioners to go forward with their habeas case, despite the existence of various bars. This obviously serves the interest of justice. No one wants to see the innocent wrongly punished. But the bar must be set high for these claims, and it is easy to see why.

Claims of innocence are routinely made. They are the rule, not the exception. For the most part, however, claims of "innocence" are simply dressed-up attempts to argue the evidence all over again. If the mere allegation of innocence is enough to re-open otherwise barred claims, then nothing would ever be final. The only workable solution is to set the bar very high for claims of "actual innocence." The presumption of guilt, which attaches when a defendant is convicted, should not be pierced unless there is new evidence that the jury did not hear. Nor is this enough by itself, because it is always possible to find (or create) unpersuasive new evidence. The new evidence must be convincing enough to mean that no reasonable juror would have voted to convict. This is the standard of Schlup v. Delo, 513 U.S. 298, 329 (1995), and it is the standard used at various points in the Streamlined Procedures Act. It is the only bar-overcoming "innocence" standard that makes sense.

In her concurring opinion in Herrera v. Collins, 506 U.S. 390, 419-20, 426-27 (1993), U.S. Supreme Court Justice Sandra Day O'Connor, with Justice Anthony M. Kennedy concurring, stressed this point: If the "actual innocence" standard is too easy to meet, "the federal courts will be deluged with frivolous claims of actual innocence" by prisoners "who, refusing to accept the jury's verdict, demand[ a hearing in which to have [their] culpability determined once again." To avoid such a result, "[I]f the federal courts are to entertain claims of actual innocence, their attention, efforts, and energy must be reserved for the truly extraordinary case."

A couple of examples from my recent experience will, I hope, make the point more clear. First, there is a man named Raymond Smolsky who, about seventeen years ago, repeatedly molested and raped a five-year-old girl in Philadelphia. He filed a habeas petition in 2000, raising some claims which he had not properly presented to the state courts, and also claiming that he was "innocent" and that the victim had recanted, therefore contending that everything was subject to more review. But the recantation was ambiguously worded. When we investigated, the victim -- now a young woman -- told us that the defense investigator had misled her. This defense investigator, not clearly identifying herself as a member of the defense team; had urged the victim to sign the statement and assured her that Smolsky would remain in prison. The statement (written by the defense) had been worded just ambiguously enough to make it sound as if Smolsky had not committed rape, when in fact he had. The victim was mortified when we told her that she had signed a defense-prepared affidavit that was designed to get Smolsky out of prison.

Smolsky's strategy had been to manufacture evidence to qualify under the "actual evidence" standard; otherwise, his claims were barred. We were able to convince the court that this new "evidence" should be examined first by the state court, and the habeas petition is now stayed, pending a state court hearing. In the meantime, the victim has been dragged back into the case. An easy-to-meet, defendant-friendly standard will encourage more of this kind of abuse.

Aaron Jones is another criminal who has tried to take advantage of the "actual innocence" standard to relitigate his case. Jones was the head of a notorious and violent Philadelphia drug gang, which was finally brought to justice after extensive federal and state investigations. Part of the problem was that this gang had a pattern of murdering witnesses (including other gang members) who would dare cooperate with authorities. Jones was finally, after much effort, convicted of murder and sentenced to death. After years of state court appeals and review, Jones filed a federal habeas petition with many completely new claims, and a request for wide-ranging discovery into state and federal files, including information about witnesses who are still in the witness protection program. We pointed out that many of his claims were unreviewable because they had not been properly presented to the state courts, and the discovery was thus unjustified. But Jones argued that he had made a claim of "actual innocence" which put everything back on the table. His evidence of innocence, however, was simply a re-hash of his earlier argument that the prosecution's witnesses were lying to curry favor with the government. He simply hoped to obtain more discovery because he might discover something helpful that he hadn't found before.

As of this date, both state and federal authorities have provided yet more discovery in the Jones case, and the District Court is currently considering whether Jones' allegation of innocence entitles him to anything more, or to litigate anything he wants. While it is important to protect the innocent, an "actual innocence" exception to various bars and deadlines is a potentially major loophole. It provides a continuing incentive to re-argue old facts, manufacture new evidence, and intimidate victims and witnesses. The "innocence" exception must be strict, and it must be guarded carefully.

Evading Rules Through Allegations of "Ineffective" Counsel

Perhaps the most common way of reviving waived claims, in both state and federal court, is through an allegation that defense counsel provided such incompetent representation as to violate the constitutional guarantee of effective counsel. Usually, the petitioner complains that his lawyer should have made an objection of some kind, but did not. Such claims turn on three inquiries: (1) How meritorious was the claim that wasn't raised? (2) Did the defense counsel have an understandable reason for not making the argument? And (3) Did the "omission" change the outcome of the trial? In federal habeas cases, these claims too often focus on the first prong (the merits of the waived claim), without any consideration of the second or third (counsel's possible reasoning, and the prejudice to the defendant). In practice, that means that the waived claim gets reviewed, as if it were properly preserved. Even more disturbingly, these allegations often involve issues of state law that the defense lawyer didn't raise -- for example, an evidentiary objection, or a state rule of procedure -- and the federal court simply converts itself into an arbiter of state law as it decides whether the foregone objection was meritorious.

Sometimes, the issue is even further confused by misapplication of the exhaustion rules. Some federal judges have held that, where a prisoner has raised a claim of ineffectiveness in state court, this not only serves to exhaust the ineffectiveness claim, but the underlying issue as well, which can be freely reviewed on the merits by the federal court, as if the defense lawyer had actually made the objection. [For example, see Veal v. Myers, 326 F.Supp.2d 612, 617 (E.D. Pa. 2004).]

The only way to justify federal court adjudication of ineffectiveness claims, is to focus on counsel's conduct, rather than the underlying allegation of error, and to recognize that exhaustion of an ineffectiveness claim is very different from proper preservation and exhaustion of the underlying claim. Otherwise, the federal court will routinely decide waived claims, and resolve state law issues, without a proper focus on the lawyer's conduct.

II. SECTION-BY-SECTION ANALYSIS OF HOW THE STREAMLINED PROCEDURES ACT WILL ADDRESS THE FOREGOING PROBLEMS

SECTION 2: MIXED PETITIONS

Section 2 also would clarify requirements for pleading exhaustion of state remedies. Under the new 2254(b)(1)(A)(i), the prisoner would have to clearly present the federal claim to state courts, and he would have identify the stage of the state proceedings where he did so, in order to proceed on the claim in federal habeas. This would ensure that states actually have the chance to decide each and every federal claim the petitioner later presented to federal court, instead of having to guess what the prisoner might mean by vague references to "due process" or the like.

Finally, this provision would set out a standard of review for unexhausted claims that, nevertheless, ultimately qualify for federal review. These claims would have to be denied, unless "the denial of relief is contrary to, or would entail an unreasonable application of, clearly established U.S. federal law, as determined by the Supreme Court of the United States." [See Section 2254(b)(1)(B)(ii).] This is the familiar AEDPA standard that, elsewhere, governs review of claims that have been decided by the state courts. (In several other sections of the SPA, the same familiar standard would be applied to other claims that qualify for federal review, but were not decided by the state courts, either because they were never submitted, or were not submitted in accordance with state rules.) Applying this standard across the board would ensure that petitioners who did not properly submit their claims to the state courts were not in a better position, with a more claimant-friendly standard of review, than prisoners who did properly submit their claims to the state courts. This standard also would codify a presumption of constitutionality: If reasonable minds could disagree over whether there was any error, then, in deference to the states, the conviction would remain undisturbed.

SECTION 3: AMENDMENTS TO PETITIONS

SECTION 4: PROCEDURALLY DEFAULTED CLAIMS

The message of Section 4 is clear. All federal claims must be properly exhausted in the state courts, in accordance with state rules, or the federal court will not hear it without a meaningful showing of innocence. Enactment of this provision would give back to the states the power to make and enforce their own procedural rules without undue federal interference.

SECTION 5: TOLLING OF LIMITATION PERIOD

Under the current § 2244(d)(2), that deadline is tolled while the prisoner pursues state collateral relief -- specifically, the habeas clock stops while a "properly filed" state collateral petition is "pending." The proposed language in Section 5 of the SPA would clarify several key points. First, the habeas deadline would be tolled only where the petitioner sought review of federal claims that might later form the basis of a habeas petition; litigation of unrelated state claims would not extend the federal deadline. Second, Section 5 would clearly limit tolling to the period where the claims were actually pending before a state court. If the prisoner's state petition was rejected by one court, and he waited awhile before appealing or otherwise challenging the decision, the time in-between would not be "pending" and would have no tolling effect. This would eliminate the phantom, make-believe period of "pendingness," when nothing was actually pending, the period that Judge Frank H. Easterbrook criticized in Fernandez v. Sternes , 227 F.3d 977, 980 (7th Cir. 2000).

The third change is, I think, the most important. The new § 2254(d)(4) would limit the grounds for allowing tolling of the one-year habeas deadline to those grounds actually identified in the statute. This would curtail the enormous explosion of "equitable tolling" litigation. If the prisoner had new evidence, or relied on a new rule of law, or had been prevented from filing by government officials, or was properly pursuing state collateral review, the deadline would be tolled. Otherwise, it would not be tolled. This would prevent results like that in the Robert Graham case described above, where a costly battle of experts, and Graham's supposed inability to "trust" others to do his legal work, was enough for the prisoner to evade the deadline for years. It is also common sense, because, presumably, AEDPA means what it says, and, if a ground for tolling does not appear in the statute, then it should not be applied.

SECTION 6: HARMLESS ERROR IN SENTENCING

The proposed new language would replace the fact-intensive inquiry with a legal inquiry. Rather than asking about the likely impact of the weight of the evidence on local juries, the new standard would ask whether the error itself rose to the level of "structural" error. The U.S. Supreme Court has identified several kinds of "structural"errors that merit reversal without a harmlessness analysis. If the alleged sentencing error fits into this category, then relief may issue. If not, then a sentencing error that was determined by the state courts to have been harmless may not be second-guessed.

It is worth emphasizing that this section of the SPA would only apply to sentencing claims. Also, no one who asserted innocence of the underlying offense would see his options limited by this section. Section 6 would merely preclude a repeat of the state review process in federal court for sentencing errors that were not related to guilt of the underlying offense.

SECTION 7: UNIFIED REVIEW STANDARD

SECTION 8: APPEALS

This section would accomplish two other things as well. Subsection 8(l)(1) would provide that the state was automatically entitled to a stay of the judgment while it appealed the U.S. District Court's grant of relief, which has sometimes been the subject of unnecessary litigation. Subsection 8(b) would bar U.S Courts of Appeals from rehearing successive petition applications on their own motion. Current law bars petitioners from seeking rehearing of denials of such petitions, but some courts have concluded that they have the power to rehear these applications sua sponte. This provision of the SPA would close the loophole.

SECTION 9: CAPITAL CASES

The proposed subsection of Section 9 of theSPA would fix this problem by placing the eligibility decision in the hands of the U.S. Attorney General, with review of his decision in the D.C. Circuit. In addition, the new provision would grant U.S. District Courts more time to review these capital petitions (15 months, instead of 6 months), and would limit relief to claims implicating meaningful evidence of actual innocence.

SECTION 10: CLEMENCY AND PARDON DECISIONS

SECTION 11: EX PARTE FUNDING REQUESTS

SECTION 12: CRIME VICTIMS' RIGHTS

SECTION 13: TECHNICAL CORRECTIONS

SECTION 14: APPLICATION TO PENDING CASES

CONCLUSION

Thomas Dolgenos is a Pennsylvania assistant district attorney and Chief of the Federal Litigation Unit in the Philadelphia District Attorney's Office, Philadelphia, Pennsylvania. The foregoing statement by Mr. Delgenos was presented, on July 13, 2005, at a hearing held by U.S. Senate Committee on the Judiciary.

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