Document Type


Publication Date

Winter 1996


Federal habeas corpus, Brown v. Allen, Adequate and independent state law doctrine, Cause and prejudice test, Retroactivity doctrine, Harmless error, Barefoot v. Estelle, Death penalty, Capital punishment


Criminal Procedure


For many prisoners, federal habeas corpus stands as the last opportunity to challenge the constitutionality of their convictions or sentences. Simply navigating through the procedural maze of habeas practice, however, is a formidable task for inmates proceeding pro se and prisoners represented by counsel. Tragically, those who have had a fundamentally unfair trial, and even those who are innocent, may easily stumble. Since 1867, habeas corpus, or the Great Writ, has been available to state prisoners "in all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States." The modern era of federal habeas corpus, however, did not begin until the Supreme Court's decision in Brown v. Allen. In Brown, the Court held that the violation of a constitutional right is cognizable in federal habeas and that federal courts may independently review state court adjudications of federal questions, even if the state court's treatment of those legal claims was full and fair.

The potential scope of habeas corpus is vast. At its root is the principle that "if the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release. . . . Vindication of due process is precisely its historic office." However, despite the expansive tone of much of the language describing habeas corpus, its effective reach has been curtailed, especially in recent years. Motivated by concerns for the finality of convictions and federalism," the Court has erected "a Byzantine morass of arbitrary, unnecessary, and unjustifiable impediments to the vindication of federal rights." The Court has even downplayed the role of habeas corpus itself. Congress may act to restrict habeas even further.

To assist state inmates who confront the difficult task of a federal court challenge to the legality of their detention, we first outline the elementary steps in habeas corpus procedure. Next, we outline the State's possible defenses. We then examine doctrines that affect the way a federal court treats the merits of claims presented in the petition. Finally, we address the special concerns of death-sentenced inmates who seek a stay of execution pending consideration of their habeas petitions.

While an understanding of complex habeas corpus principles is important, it is perhaps secondary to the art of meaningful habeas corpus advocacy. The practitioner must convince the court that the inmate is a human being, not a remorseless criminal; that the inmate was denied a fundamentally fair trial and is not merely raising technical issues; and finally, that the inmate, rather than refusing to accept responsibility for misdeeds, did not receive basic justice in the state court.

Publication Citation

Published in: South Carolina Law Review, vol. 47, no. 2 (Winter 1996).