William A. Schroeder

Federal Habeas Review of State Prisoner Claims Based on Alleged Violations of Prophylactic Rules of Constitutional Criminal Procedure: Reviving and Extending Stone v. Powell

Prophylactic rules are judge-made rules promulgated by the Supreme Court to help protect underlying Constitutional rights when the Court believes that the right cannot otherwise be adequately protected. It has been said that a rule is prophylactic only when it can be violated without violating the Constitution. Over the course of the last fifty years, prophylactic rules of criminal procedure-and claims based on alleged violations of these rules- have proliferated. At the same time habeas petitions in the federal courts have also proliferated.Numerous commentators have argued in recent years that “federal habeas review of state criminal convictions is desperately in need of reform.” See Eve Brensike Primus, A Structural Vision of Habeas Corpus, 98 Cal. L. Rev 1 (2010). Thirty-two years ago, in Rose v. Mitchell, 443 U.S. 545, 581 (1979), Justices Powell and Rehnquist, in a concurring opinion, said “In expanding the scope of habeas corpus...the Court seems to have lost sight entirely of the historical purpose of the writ. It has come to accept review by federal district courts of state-court judgments in criminal cases as the rule, rather than the exception that it should be.” This statement remains true today even though in Stone v. Powell, 428 U.S. 465 (1976), the Supreme Court suggested a partial, and principled, solution to the problem. In Stone the Court held that a state prisoner who had a full and fair opportunity to litigate a Fourth Amendment claim in state court, at trial and on appeal, may not be granted federal habeas corpus relief on the ground that evidence obtained in violation of the Fourth Amendment was introduced at his trial. This article argues that Stone should be revived and extended. More specifically, this article argues that the Supreme Court should rule that federal habeas courts lack jurisdiction over state prisoner claims based on alleged violations of prophylactic rules because persons in custody as a result of such violations are not “in custody in violation of the Constitution or laws...of the United States.” Alternatively, the Court should limit habeas review of such claims by using the equitable considerations that it noted in Stone and that it has long used to raise and lower procedural barriers to habeas relief.