Wading Through the Morass of Modern Federal Habeas Review of State Capital Prisoners' Claims

In July of 2007, Attorney General Alberto R. Gonzales called for comments on his proposed rulemaking on the Certification Process of State Capital Counsel Systems. The response was an overwhelming condemnation not only of the Attorney General’s proposed rules, but also of the current state of modern federal habeas corpus review of state capital prisoners’ claims. Notwithstanding this criticism, the Attorney General largely ignored the feedback and, in December of 2008, issued final regulations that are virtually identical to the proposed regulations. Why did the Attorney General ignore this incredible opportunity to create a sense of clarity and progress in the system of federal habeas review of state prisoners’ claims? More importantly, what must be done to halt the downward spiral of this system? This Article addresses these questions by examining the Antiterrorism and Effective Death Penalty Act’s “opt-in” provision, which Congress enacted in 1996 to effectuate the twin aims of achieving fairness and efficiency in federal habeas review of capital state prisoners’ claims. The heart and soul of the opt-in provision is a quid pro quo arrangement whereby the states receive the benefit of expedited review of federal habeas claims in exchange for states providing competent, compensated counsel in state capital post-conviction proceedings. In 2005, after only one state qualified for opt-in status, it became clear that the opt-in “experiment” was not working. Accordingly, Congress transferred certification authority from the federal courts to the Attorney General. The past three years have shown, however, that the Attorney General is not the answer Congress was looking for. This Article argues that, in order to meaningfully reform the system of federal habeas review of state prisoners’ claims, either the Attorney General must implement much of the substantive feedback in response to the proposed regulations or Congress must return certification to the appropriate neutral body: the federal courts.