Mimesis Law
18 April 2021

Thomas Jefferson Was An Asshole: A Reply To Josh Kendrick On The AEDPA

May 9, 2016 (Mimesis Law) — I urge you to read Josh Kendrick’s well-written and provocative post regarding the Antiterrorism and Effective Death Penalty Act of 1996, known as AEDPA. Based upon an article written by Liliana Segura, Chris decries the “castration” of the federal habeas corpus remedy by AEDPA. In doing so, Josh liberally quotes and refers to Thomas Jefferson. Josh and Liliana hate the restrictions found in AEDPA, primarily those in 28 U.S.C. § 2244 and 28 U.S.C. § 2254. Josh and Liliana also feign shock that politics played a part in the adoption of AEDPA.

I have the following reactions to Josh’s post written after handling literally hundreds of habeas corpus cases including more than a few involving the imposition of the death penalty.

First, Josh you shouldn’t have relied upon Thomas Jefferson so much. He was an asshole who took a black slave as his mistress, but lacked the humanity to free his slaves when he died. More to the point, he hated the federal judiciary. See, e.g., here.


Second, give me a break on the politics angle too. No federal law is enacted, particularly given an expansive and legally complex law like AEDPA, without politics. Some of the politics is high-minded. Some is not. Welcome to the real world.

Third, AEDPA did a number of very sensible things. Next, I will detail some of those perfectly rational changes.

It established a statute of limitations. Under the Act, a state prisoner must seek relief in federal court within one year of the conclusion of either the direct appeal of his state judgment or the expiration of time for seeking such appeal. 28 U.S.C. § 2244(d)(1)(A). If the prisoner promptly seeks collateral review of his judgment in state court before coming to federal court, the limitations period will be tolled until that collateral review in the state courts has been concluded.

Prior to the Act, federal courts were authorized by Rule 9 of the Rules Governing Section 2254 cases to dismiss a habeas petition that was filed long after the conviction and sentence, but only if the court concluded that 1) the petitioner previously knew or should have known of the existence of the grounds raised in the petition, and 2) the delay resulted in the state being prejudiced in its ability to respond to the petition.

Also, the Act authorizes federal judges to deny on the merits any unexhausted claim. An unexhausted claim is a claim that the petitioner failed to present to the state courts for decision before including it in a federal petition. 28 U.S.C. § 2254(b)(2). Prior law required federal courts to dismiss an unexhausted claim without prejudice. The petitioner then could litigate that claim in state court, and subsequently file anew in federal court.

Additionally, the Act prohibits a federal judge from holding an evidentiary hearing in a habeas case when the petitioner has failed to develop the facts in state court unless the facts supporting the claim would establish the petitioner’s innocence of the underlying offense, and the claim relies on either 1) a new rule of criminal procedure that the Supreme Court has decided must apply retroactively, or 2) factual information that the petitioner could not have discovered earlier. 28 U.S.C. § 2254(e)(2). Restrictions on evidentiary hearings before AEDPA were not nearly as exacting.

Furthermore, AEDPA restricted the circumstances under which a federal court is permitted to entertain a successive petition. It requires prior authorization from the court of appeals, and bars entirely federal court review of any claim that a petitioner had included in a prior petition. 28 U.S.C. § 2244(b)(3)(A).

Perhaps most importantly, the Act also mandated a new standard of review for evaluating state court applications of constitutional law and determinations of fact. The new standards required federal courts to give great deference to state decisions. The Act prohibits federal judges from granting relief for any claim adjudicated on the merits in state court unless the state decision rejecting the claim is 1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or is 2) “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).  And, the “applicant shall have the burden of rebutting the presumption of [factual] correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

Habeas corpus cases attacking the decisions of state courts swallow up a large amount of federal judicial time and resources. Each year, more than 18,000 cases, or one out of every 14 civil cases filed in the federal district courts, are filed by state prisoners seeking habeas corpus relief, and more than 6,000 of these cases reach the courts of appeals. See, e.g. Nancy J. King, J.D.; Fred L. Cheesman II, Ph.D.; Brian J. Ostrom, Ph.D., Final Technical Report: Habeas Litigation in U.S. District Courts: An Empirical Study of Habeas Corpus Cases Filed by State Prisoners Under the Antiterrorism and Effective Death Penalty Act of 1996, at p. 10, National Center for State Courts pursuant to  a grant awarded by the National Institute of Justice, Office of Justice Programs, United States Department of Justice (August 2007).

With that in mind, and reminding Josh and others that ours is a Republic,* I will give you a few of my personal observations of the merits of AEDPA.

Here goes:

  • The federal district courts were never intended to give single federal district judges the power to frequently “overrule” the decisions of the state courts, and that is most particularly true for the state Supreme Courts. See, e.g., Charles Doyle, Federal Habeas Corpus: A Brief Legal Overview, at pp. 2-6 Congressional Research Service (April 26, 2006) (prior to AEDPA, it “was said that federal habeas was ‘the most controversial and friction producing issue in the relation between federal and state courts. . . . Commentators [were] critical, . . . federal judges [were] unhappy, . . . state courts resented [it], . . [and] prisoners thrive[d] on it as a form of occupational therapy. . . .”).
  • Without a hard and fast statute of limitations there was no incentive for state prisoners to seek federal review in a timely fashion. Not infrequently, long after a conviction had been obtained and a sentence imposed, a state prisoner would waltz into federal court in the hopes of winning the lottery. Prior to AEDPA, it is not an exaggeration to suggest that state convictions were never final.
  • Without AEDPA, state prisoners could and did file multiple petitions making serial claims that could just as well have been made in the first petition. Serial bites of the apple were not uncommon.
  • Prior to AEDPA, too often single federal district judges would hold evidentiary hearings with the result that prior determinations of the facts by the state courts were ignored, even though those state-made determinations were eminently reasonable.
  • Through the statutory requirement of a strict exhaustion requirement, AEDPA effectively barred the not infrequent prisoner litigation tactic of raising one set of claims in the state courts while raising entirely different claims in the federal courts. Previously, the prisoner would be told to exhaust his claims and come back again, thus wasting the time and energies of the state and federal courts.

I could go on, but you get the idea.

In summary, reasonable people can debate the strengths and weaknesses of various provisions of AEDPA. However, it is grossly inaccurate to suggest that AEDPA is creature birthed by craven politicians who were supported by a fear-driven and bad-shit crazy citizenry. Plainly, AEDPA was motivated largely by abusive prisoner litigation. Borrowing Josh’s phraseology, preventing “rape” is not the same as “castration.”

Richard G. Kopf
Senior United States District Judge (NE)

24 Comments on this post.

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  • Josh
    9 May 2016 at 10:04 am - Reply

    Dammit, judge. Now I have to defend Jefferson’s honor! On the other hand, I can quit looking for a subject to write about for the end of the week…

    • shg
      9 May 2016 at 10:12 am - Reply

      I think this is the most extraordinary collection of talent, of human knowledge, that has ever been gathered at the White House – with the possible exception of when Thomas Jefferson dined alone.

      –John F. Kennedy

      Let the judge hate, Josh. You know how those progressive presentists like to reinvent history to suit their current feelz.

      • Richard G. Kopf
        9 May 2016 at 1:03 pm - Reply


        CDLs are supposed to defend that which is indefensible. More seriously, I replied to your post because it was thought-provoking, persuasively written and addressed a very important topic.

        All the best.

        Rich Kopf

  • More
    9 May 2016 at 11:03 am - Reply

    Two additional points seem relevant:

    First, it seems ludicrous to complain about AEDPA without noting that these provisions were partly a response to particular courts’ abyss. If Judge Reinhardt is going to complain about AEDPA, he should at least have the honesty to admit that his own actions (which he no doubt deemed appropriate, but which Congress apparently considered abusive) helped bring it about.

    Second, it seems dishonest to rely on the Framers’ praise for habeas without noting that they never considered it in the context of federal relief for state prisoners — because that didn’t exist at all until after the Civil WR, and even then was tremendously limited until the 1960s.

    • TMM
      10 May 2016 at 5:25 pm - Reply

      It wasn’t entirely non-existent before the Civil War, but it was a gradual growth. The original writ (at the time of the Framing) just applied to those held without any cause (the origin of the “show cause” part of the show cause order). Over time, as pesky states started to use state criminal law to interfere with pesky federal agents trying to enforce unpopular federal laws, the writ was extended to allow federal review of state convictions of federal agents. However, it wasn’t until after the 14th Amendment (particular Section 5 of the 14th Amendment) was adopted that Congress even considered allowing collateral review of state convictions across the board.

  • Jonathan Edelstein
    9 May 2016 at 2:20 pm - Reply

    Your Honor:

    “Without a hard and fast statute of limitations there was no incentive for state prisoners to seek federal review in a timely fashion” — you mean, other than the fact that they were in prison? I’ve handled quite a bit of post-conviction work for state prisoners (mainly in the state courts), and without exception, my clients have champed at the bit to file the motion. Not one of them ever said “let me spend another year or two in a cramped cell eating lousy food just to increase the chances that the state won’t be able to retry me.”

    With all respect to your position (and I don’t mean that sarcastically), that sort of tactical thinking is done by judges rather than prisoners — only a person who has never been an inmate would imagine that inmates actually do this. There _are_ frequently delays in seeking post-conviction relief, but these are more commonly the result of the difficulty of investigating one’s case from prison, lack of counsel and logistical resources, the fact that witnesses sometimes do come forward after a long time, and the fact that documents are often discovered only after years of freedom-of-information litigation against the prosecutor’s office.

    I also don’t believe that federalism should trump the constitutional rights of individuals, but that’s a personal preference: your mileage can, and evidently does, vary. I do agree with you on exhaustion of claims and the one-petition rule, although it would be nice if the exception for newly discovered evidence were just a little wider.

    • Richard G. Kopf
      9 May 2016 at 3:47 pm - Reply


      For some, but perhaps not most, prisoners, you make a fair point on the statute of limitations. But since the statute excludes the time when state post-conviction relief is being sought, I continue to believe that the one-year limitation period is about right for a diligent prisoner.

      As for the newly discovered evidence standard in AEDPA, it is hard to meet and that is intentional. On the other hand, in many states, newly discovered evidence can be the basis for a second post-conviction action if the evidence is truly new, material and the prisoner acted diligently.

      The federal standard is harder to meet–essentially requiring diligence plus “actual innocence” or something close to it–because, as you properly point out, federalism concerns animate an over-arching desire for finality. To my way of thinking, that is a proper reading of the Constitution and both the old and new precedents underlying the use of the Great Writ.

      Finally, I add this: The Federal Judiciary takes habeas cases very seriously. In the fiscal year of 2014, there were 41 law clerks who did nothing but work on death penalty cases. During that same time frame, there were about 350 law clerks who worked only on prisoner litigation including habeas corpus cases. In short, despite AEDPA, we work hard at to see that the writ of habeas corpus is not a dead letter.

      Thanks for taking the time to respond. All the best.

      Rich Kopf

      • Jonathan Edelstein
        9 May 2016 at 4:07 pm - Reply

        Thanks for taking the time to answer.

        I agree that the toll during the period when state remedies are pending goes some way toward making the federal statute of limitations bearable, but it doesn’t go all the way. Pro se inmates face the same obstacles in preparing state post-conviction motions that they do preparing a federal petition, namely that it’s hard to investigate and obtain documents and affidavits while in prison. By the time they develop a sufficient record to go to state court, the federal statute may have already expired, leaving them with a choice between going to state court _without_ an adequate record or forfeiting their federal remedy. And if they do go to state court with an insufficient record and the state court refuses to hold a hearing, the federal courts are subsequently restricted to that record under Pinholster, which is one reason I don’t entirely agree about the propriety of habeas courts conducting such hearings.

        I have no doubt that the federal courts take habeas cases seriously. This has been the case in almost all the habeas petitions I’ve filed on behalf of clients. And I’ll agree that in states where the courts take due process seriously and give fair consideration to new evidence, restrictions on federal remedies are less of a problem. But there are also states like Alabama, Judge – how does the AEDPA, especially as currently interpreted (we’ve come a long way from Williams v. Taylor to Harrington v. Richter), account for Alabama?

        Thanks again for your considered and thoughtful views from the bench, which I’ve found to be very educational.

        • Richard G. Kopf
          9 May 2016 at 4:21 pm - Reply
          • Scott Jacobs
            9 May 2016 at 5:04 pm -

            Nothing wrong with that man that can’t be fixed by dragging him from his office and applying some tar and feathers…

          • TMM
            11 May 2016 at 11:40 am -

            Would note several things: 1) Many states do appoint counsel for post-conviction movants (at least for the initial round) eliminating need for pro se inmate to develop and investigate IAC and Brady claims themselves; 2) there are four different alternative ways of calculating the time limit — for something like a Brady claim, the one-year only starts upon discovery of the factual basis of the claim; 3) actual innocence is an exception to the time limit.

            The big problem with the typical time limit (one year plus tolling from the end of direct appeal) is the one bite at the apple rule, but if the new claim is significant enough it might fall within the exception to the rule. (Putting aside the fact that most claims raised by most inmates within that initial period are not substantial causing the inmate to waste their one habeas petition.)

  • Peter H
    9 May 2016 at 4:42 pm - Reply

    Judge, I notice you described but did not defend the provision relating to the clearly established Federal law provisions, which by specifying the Supreme Court effectively neuters the ability of the circuit to expound the law authoritatively.

    Given that the Supreme Court can’t possibly grant cert to every worthwhile petition, especially when there is agreement among the circuits, that provision gives license to state courts to thumb their noses at the Federal courts’ rulings on Constitutional law and insulate themselves from habeas review for the persons whose rights they violated.

    Recall the existence of Alabama courts when thinking about this question.

    • Richard G. Kopf
      10 May 2016 at 8:32 am - Reply

      Peter H.,

      I am not bothered in the least by the provision to which you refer. There is nothing in AEDPA that prevents a Court of Appeals from applying Supreme Court precedents in an expansive or limited fashion. On the other hand, that the Court of Appeals can’t make up new law troubles me not at all. That is because only the Court is truly in a position to balance the relationship between the federal judicial system and the judicial systems of the various states when it comes to something as sensitive as the application of the criminal laws.

      I say again because it bears repeating, we are a Republic. That matters if you truly honor the structure of our Constitution.

      All the best.


  • Repenting lawyer
    9 May 2016 at 4:45 pm - Reply

    What Founders intended on ha ears is hardly relevant since fed ha ears reach in state cases is a product of post Civil War 14th Amendment and legislation. Amersterdam wrote extensively on this. Retread Grandsinger and then you wI’ll not worry so much about hurt feelings in Lincoln.

  • Anonymous
    9 May 2016 at 6:43 pm - Reply

    What I have found interesting about AEDPA is how a federal statute designed to help alleviate the burdens of Habeas litigation, has in many ways increased the work load. I’m thinking of equitable tolling and the cottage industry of claims manufactured on appeal on that issue alone.

    My own view is that district judges need to look at the motion, read the briefs, and issue very short, curt decisions in the 95% of these that are absolute nonsense. I have always suspected that worthless Habeas motions are given way too much time and attention by the district courts because there is a deep seated fear of a reversal on appeal for not writing an extensive opinion on what so often is a whole lot of nothing.

    The irony of it all is that the really important habeas cases get shorter shrift because of the drain caused by abuse of the writ.

    Life’s that way a lot. It’s got to mean something.

    • Richard G. Kopf
      10 May 2016 at 8:07 am - Reply


      Your comment is right on. We try desperately to write short opinions and churn them out as fast as we can for the great majority of habeas cases that are entirely lacking in merit.

      AEDPA has in one sense made life more difficult. There is a tendency to address every failing under AEDPA from the statute of limitations to procedural bars to deferential review and so forth.

      I spend a good deal of my time researching and writing habeas opinions myself for about 40% of our habeas load while supervising a brilliant pro se attorney who handles the other 60 percent. Since the state courts in Nebraska do a good job but also take these cases seriously, the procedural history alone can often be complex and extended.

      For staffing formula purposes, a staff attorney is supposed to take on average 8 hours to resolve a pro se habeas case. Given my quality control requirements (citation form, spelling, grammar, cite checking, hyperlinking to the record and cases, etc.,) the eight-hour standard is too short for a pro se staff attorney.

      I can normally do one in eight hours by taking “risk” I won’t allow the staff attorney to take, but that is pushing it hard and it means working every minute of those eight hours. (By the way, I do my own word processing.) Even though we have a large database of “canned” language that has been carefully proofed to insert into opinions, getting these things out the door in eight hours is a real struggle.

      In the back of our minds is always the spectre of missing a meritorious claim. So there is a natural tendency to be cautious. But, as you implicitly note, managing by exception is crazy.

      I wish I could figure out a way of handling these cases better and faster, but your comment pretty much sums up what happens when we make the sausage. It is grinding work much like working on the kill floor of a packing plant. The line never stops.

      Thanks for writing (and understanding). All the best.

      Rich Kopf

  • Anonymous
    9 May 2016 at 7:07 pm - Reply
    • Richard G. Kopf
      10 May 2016 at 8:22 am - Reply


      Great clip. Terrific acting.

      I watched the entire series and was captivated by it. I am glad to be reminded of the discourse portrayed in the snapshot that you have provided. It perfectly captures many important aspects of the competing views of Adams and Jefferson regarding the structure and formation of our government.
      Plus I like to look down my nose at Jefferson who is portrayed as a rather effete dandy. As SHG might say, haters gotta hate.

      All the best.


      • Jonathan Edelstein
        10 May 2016 at 1:10 pm - Reply

        Adams was a better president than he’s given credit for being, and between him and Jefferson, I’ll take the one who hired labor over the one who bought it.

        • Richard G. Kopf
          10 May 2016 at 1:22 pm - Reply


          Adams was also an early criminal defense lawyer who took on the defense of British soldiers in the famous Boston Massacre Trials. Jefferson, on the other hand, liked perfumed handkerchiefs.

          All the best.


  • The Limits of Infallibility | Simple Justice
    18 May 2016 at 7:13 am - Reply

    […] Kendrick kicked it off with his post about how AEDPA “castrated” habeas corpus. Judge Richard Kopf followed up, arguing that it reflected a political judgment that habeas can’t go on forever.  Andrew […]

  • The Prisoners’ Dilemma: The Exhaustion of Exhausting Remedies | Simple Justice
    31 May 2016 at 6:25 am - Reply

    […] the context of the debate over finality in habeas challenges to convictions, Judge Richard Kopf let on to a little inside baseball in the backroom of the federal […]

  • Will
    4 December 2016 at 3:01 pm - Reply
  • Will
    4 December 2016 at 3:37 pm - Reply

    I agree with the article on Fault Lines. The citizenry gutted the writ of habeas corpus. The bar for habeas to be granted seems for all practical purposes to be out of reach. Was this done as a means of going further than the PLRA???