UC Law Journal


During its 1990 Term, the United States Supreme Court developed a new retroactivity doctrine that, in effect, destroys independent federal habeas review of state prisoners' constitutional claims in situations other than those involving lack of jurisdiction or failure of process in state court. This new retroactivity doctrine marks the culmination of the Court's trend toward denying federal habeas review of state prisoners' claims in favor of finality of state court determinations. In this Article, Professor Patchel explores the process by which the Burger and Rehnquist Courts developed doctrines restricting the scope of habeas review in the face of Warren Court precedent interpreting Congress' grant of habeas jurisdiction very broadly. She argues that, while the cases restricting federal habeas review involve various legal doctrines, they share a common methodology developed by Judge Henry Friendly and Professor Paul Bator, which combines a result-oriented rhetoric of innocence with a process-oriented test for finality. This combination purportedly develops discretionary limits on habeas review that the Court then applies as mandatory restrictions on the habeas jurisdiction of the lower federal courts.

Professor Patchel concludes that, through these judicially developed restrictions on habeas, the Supreme Court in essence has recast the role of the lower federal courts from active participants in the development of constitutional doctrine to mere monitors of state criminal procedures, ensuring that the state court decisions comply with the minimal requirements of fundamental fairness. Ultimately, she argues, this transformation has returned the federal-state balance in the area of state criminal procedure to one very similar to that existing before the Warren Court and the advent of selective incorporation. At the same time, by labelling its habeas restrictions "discretionary," the Court has avoided direct confrontation with the Warren Court precedent, leaving the Warren Court's broad jurisdiction formally intact, but essentially irrelevant to the actual ability of federal courts to hear the merits of state prisoners' constitutional claims. Finally, Professor Patchel explores some of the consequences of the Court's methodology in terms of loss of principled adjudication, functional analysis of constitutional rights, loss of neutrality of procedure, denigration of the importance of the individual, and trivialization of the role of the lower federal courts in developing and applying constitutional doctrine.

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