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Don’t Forget Due Process: The Path Not (Yet) Taken in § 2254 Habeas Corpus Adjudications

55 Pages Posted: 21 May 2009 Last revised: 6 Aug 2010

Justin F. Marceau

University of Denver Sturm College of Law

Date Written: May 20, 2009


Countless articles and judicial opinions have been devoted to the task of deciphering the scope and application of the limitations on habeas corpus relief announced in the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Over the past ten years courts and scholars have developed an intricate framework of analysis for nearly every sub-section of § 2254. The decade-long process of interpretation and commentary has been characterized by questions of statutory meaning and federalism that appear to be as irresolvable for courts as they are intriguing to academics. But in the rush to sort out the minutia of AEDPA, the hallmarks of our legal system, basic due process and constitutional supremacy, have been overlooked. This Article aims to re-focus the debate.

The application and discussion of AEDPA’s limitations on relief has devolved into a bitter argument over the meaning of a statute which lacks a discoverable meaning, much less an obvious or plain meaning. It is statutory esotericism or statutory obfuscation much more than it is statutory interpretation. The discussion has become so technical and specialized, not to mention politically polarized, that we are at risk of permanently overshadowing the historical and constitutional underpinnings of the Great Writ. The goal of this Article is to recast and simplify the habeas debate and achieve some much needed common ground. The thesis is simple: where the state post-conviction process does not provide a meaningful corrective process such that federal constitutional issues are not “fully and fairly” adjudicated, it is necessary for the federal courts to review the federal claims de novo. This modest procedural proposal is compelled by due process through a celebrated line of cases, and yet in the frenzy to interpret § 2254 – in working out all of the (e)(2)’s and the (d)(1)’s – we have forgotten due process. It is time to return to it.

More than a century ago in Frank v. Magnum and Moore v. Dempsey, the Court recognized the critical role that federal habeas review must play in ensuring that basic constitutional criminal procedure rights were adjudicated in a minimally “full and fair” manner by state courts. To be sure this fair-process check on state adjudications was of minimal, even trivial, significance during the Brown v. Allen era when federal habeas was viewed by the Court as providing a virtually unchecked opportunity to rework the underlying merits of the state adjudication. But the limitations on federal habeas review born during the Rehnquist and Burger Courts and enhanced through the enactment of the AEDPA compel a reasoned revisiting of due process in this context. After surveying the law defining the minimum standards of due process in the context of adjudicating constitutional criminal procedure rights – the “full and fair” mandate – this paper recommends a reading of §2254 that is both faithful to due process and consistent with the goals of the AEDPA.

Suggested Citation

Marceau, Justin F., Don’t Forget Due Process: The Path Not (Yet) Taken in § 2254 Habeas Corpus Adjudications (May 20, 2009). Hastings Law Journal, Forthcoming; U Denver Legal Studies Research Paper No. 09-12. Available at SSRN: or

Justin F. Marceau (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

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