Academic journal article Harvard Law Review

Suspended Justice: The Case against 28 U.S.C. S. 2255's Statute of Limitations

Academic journal article Harvard Law Review

Suspended Justice: The Case against 28 U.S.C. S. 2255's Statute of Limitations

Article excerpt

Habeas corpus has become almost a dead letter in American law. Many claims are still filed, and some are still granted, but after the Burger and Rehnquist Courts' paring of habeas corpus's scope and accessibility, (1) as well as the introduction of a statute of limitations and restrictions on successive motions in the Antiterrorism and Effective Death Penalty Act of 1996 (2) (AEDPA), habeas has lost its luster.

However, there is still hope for habeas to be restored to its place as the ultimate protector of liberty. Although neither Congress nor the Court is likely to remove obstacles to habeas in the near future, there are seeds of a future resurgence. This Note focuses on one green shoot, arguing that AEDPA's statute of limitations on habeas corpus for federal prisoners should be recognized as a violation of the Suspension Clause. (3) Alternatively, should the Supreme Court refuse to find that the writ has been suspended, federal prisoners should still have access to the residual federal habeas corpus right that is protected by the Constitution even after the statute of limitations has expired.

Part I will describe the origins of the statute that governs federal prisoners' applications for collateral review, AEDPA's revisions to the previous habeas regime, and the motives that drove AEDPA's development. Part II argues that the statute of limitations on collateral review of federal prisoners' detention likely violates the Suspension Clause under the Court's primary recent cases dealing with suspension issues, Felker v. Turpin (4) and Boumediene v. Bush. (5) Although neither case decides the issue directly, Felker's concerns and its justifications for finding no Suspension Clause violation do not apply to the statute of limitations under discussion here, while Boumediene's reasoning suggests that the statute of limitations may rise to the level of a constitutional violation. Finally, even if the Court were not to recognize a Suspension Clause violation, there are still prudential and statutory reasons to find that, even after the statute of limitations under 28 U.S.C. [section] 2255 has run, prisoners should have access to habeas corpus with a pre-AEDPA scope.


A. Section 2255

The inclusion of the Suspension Clause in the Constitution underscores the Founders' keen interest in adopting habeas corpus from the English common law. The first Congress wasted no time enshrining the writ in American statutory law, authorizing federal courts to grant it in the Judiciary Act of 1789. (6) Habeas corpus initially applied only to prisoners held by the federal government until, in 1867, Congress passed a Habeas Corpus Act (7) that extended the writ to prisoners convicted by a state. For the next eighty years, habeas corpus remained relatively stable.

In 1948, however, Congress passed an act that fundamentally reshaped habeas corpus for federal prisoners. Among other changes, Congress introduced 28 U.S.C. [section] 2255, (8) the statute under which prisoners being held on federal convictions apply for collateral review to this day. Initially, [section] 2255 aimed solely to clean up a jurisdictional mess. A prisoner filing a habeas corpus petition was, at common law, required to file in the jurisdiction he was being confined in. Thus, those districts housing federal prisons received enormous numbers of petitions, usually implicating trial transcripts, witnesses, and evidence housed in distant sentencing courts. (9)

To fix this inefficiency, Congress passed [section] 2255, which required that petitioners seek collateral relief in the jurisdiction where they were sentenced, but which "was not intended to change the substantive rights of federal prisoners to seek habeas review." (10) It allowed prisoners to challenge their detention on the same grounds as habeas at common law (11) and explicitly provided that "[a] motion for such relief may be made at any time. …

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