The Plain Solution to Federal Habeas

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. 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 standard of upholding the “fairness, integrity, and public reputation of judicial proceedings.” In essence, the greater the deviation from procedural regularity, the more merits scrutiny courts would apply, calibrated to a level designed to vindicate habeas’ animating values in each case. This approach would much more appropriately serve habeas’ primary purposes: it would improve fairness by ensuring merits review in all cases and facilitating relief in strong ones; 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. Procedural regularity is a matter of fundamental importance in the administration of justice. But procedural niceties that merely complicate and delay the resolution of disputes are another matter. In my opinion the federal habeas corpus statute should be construed to protect the former and, whenever possible, to avoid the latter. - Justice Stevens, dissenting in Rose v. Lundy