“The Plain Solution to Federal Habeas”

The title of this post is the title of this new article now available via SSRN and authored by Charles Hintz. Here is its abstract:

Federal habeas is a mess.  The reason is the current doctrine’s myopic proceduralism: its obsession with limiting relief through stringent and Byzantine procedural rules.  This has transformed our system of federal postconviction review into an impassible thicket of procedure that forecloses merits review in even strong cases; ensnares everyone in difficult threshold questions; and delays dispositions.  Habeas today is thus unfair, opaque, and inefficient, and it fails to promote its own values: fairness, judicial economy, federalism, finality, anti-gamesmanship, and non-technicality.

How should we fix this problem? This article advances a solution based on “plain error” review (which allows correcting obvious, prejudicial errors where necessary to uphold the fairness, integrity, or public reputation of judicial proceedings).  Under this approach, habeas’ strict procedural rules would be replaced by flexible procedural “norms.” Plain error would then be applied to all habeas cases, and the procedural norms would be enforced holistically via plain error’s discretionary fairness/integrity/public reputation standard. In essence, the greater the deviation from procedural regularity, the more merits scrutiny courts would apply.  This would much more appropriately vindicate habeas’ purposes: it would improve fairness by ensuring merits review in all cases; foster judicial economy, finality, and federalism by giving judges tools to deny weak claims and enforce procedural normality without trudging through a procedural minefield; effectively prevent gamesmanship by imposing tailored penalties for strategic behavior; and eliminate technicality by returning discretion to judges.  It would, in short, create a much better habeas system.