As I mentioned in this week's Weekly Review below, I wanted to do a separate post on a procedural issue that I have noticed in the past and that again popped up twice last week (in cases 5 & 6, Robinson and DeJesus).
The procedural issue has to do with exhaustion. In those cases, the DJ relied upon 2254(b)(2) -- a provision that was added to the statute by the AEDPA -- and addressed the merits of claims that were unexhausted.
I don't think this was right. I think those claims should have been denied as procedurally defaulted. Now, in some ways, it could be argued that this was better for petitioners since the judges were addressing the merits of the claims and not denying the petition on procedural grounds. In the abstract, I guess that's true. Kind of (I'll get into why it isn't really better for the petitioner below the fold). But, in my mind, the DJ's got the procedural analysis wrong. And wrong is wrong, so I feel like I should discuss it.
So below the fold I'll enter into the exciting world of exhaustion (including the magical land that is known as the AEDPA) . . .
Exhaustion is a basic concept. Here is how I define it in the FAQ's:
“Exhaustion” is kind of a federalism/state rights concept. Before a state prisoner can obtain federal habeas relief, the prisoner must first have “exhausted” all state court remedies. It means that the prisoner must have raised the federal constitutional claim at all possible moments in the state court proceeding before coming to federal court to get relief. The idea is to give the state court all possible chances to correct the error before the federal court will intervene. At least, I think that is why it was originally developed.
Here is how exhaustion worked prior to the AEDPA:
(1) if a petitioner raised a claim in federal terms at all appropriate times, then the claim was exhausted and the federal courts addressed the merits
(2) if a petitioner failed to raise a claim at all appropriate times or did not present it as a federal claim, it was considered unexhausted. However, in most situations, the petitioner was left with no other avenue for raising it in state court because he failed to raise it at the appropriate times. In such a situation (which was 99 out of 100 times), the claim was "deemed exhausted" (one of my absolute favorite terms for some reason) but procedurally defaulted. The merits could not be addressed unless a petitioner could show cause and prejudice or fundamental miscarriage of justice.
(3) if a petitioner raised a petition that had an unexhausted claim that could be raised in state court, the DJ's were supposed to dismiss the petition without prejudice to allow the petitioner to go to state court to exhaust the claim in the first instance. The Supreme Court established this procedure for a "mixed petition" (as unexhausted claims usually were presented in a petition with exhausted claims) in a case entitled Rose v. Lundy (as with "deemed exhausted," I just loved those words together -- I think it's the dissonance in sound and feeling between the names Rose and Lundy).
Then comes the AEDPA. And remember the whole point of the AEDPA was to make the law worse for petitioners in every conceivable way.
In the AEDPA, Congress added the following provision:
(b)(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
In my mind, I believe that this provision was solely meant to address situation (3) above. Knowing that the whole point of the AEDPA is to screw over habeas petitioners, why would Congress grant federal courts the power to review the merits of a claim that would have previously been found to be procedurally defaulted (such as what would happen in situation (2))? I don't think that was the intent. Of course, the language of the AEDPA is infamously terrible, so the way that it is written means that it could easily apply to situation (2). Nevertheless, I don't think it's supposed to. And I feel pretty comfortable in saying that.
However, that's exactly what the DJ's did in Robinson and DeJesus (and other cases, not to single out these two DJ's). The unexhausted claims in those cases clearly fall under situation (2).* I believe that the DJ's should have found the claims procedurally defaulted. In other words, they should not have addressed the merits of these claims under (b)(2).
*Actually, to be fair, in DeJesus, some of them may be situation (3) issues. I don't think so, but it's arguable that they were.
Okay, someone could say, "Hey, Mr. Habeas Petitioner crusader. Why are you complaining? Isn't it better that the judges address the merits of the claims?" In theory, yes. But in reality, no. Section 2254(b)(2) is a discretionary power. It says, "may be denied on the merits." Neither the Supreme Court nor the Second Circuit has established the standard for when courts should exercise this discretionary authority. Nonetheless, no matter what the standard is, courts have stated that it should be exercised when it is clear that the claims have absolutely no merit. So that's why I don't think it is better for courts to address the merits here: they are doing it because they think the claims are basically frivolous. So if a court truly believes that the claim falls under situation (3), I'd rather see them dismiss without prejudice. If it's a situation (2) and the court is wrongly addressing the merits, then the judge is doing that simply to say that the claim is junk. So it's nothing more than a small consolation that the judge is addressing the merits.
In the end, wrong is wrong. Section 2254(b)(2) should not be used in this way.