Substantive Habeas

44 Pages Posted: 21 Nov 2013 Last revised: 18 Dec 2013

See all articles by Kimberly Thomas

Kimberly Thomas

University of Michigan Law School

Date Written: November 19, 2013


Substantive Habeas identifies the U.S. Supreme Court’s recent shift in its habeas jurisprudence from procedure to the substance of habeas review and explores the implications of this change. For decades, the U.S. Supreme Court has attempted to control the flood of habeas corpus petitions by imposing procedural requirements on prisoners seeking to challenge constitutional error in their cases. These restrictive procedural rules have remained at the center of habeas decisionmaking until recently.

In the past few years, instead of further constraining the procedural gateway for habeas cases, the Supreme Court has shifted its focus to the substance of habeas. The result is a narrowing of the substantive window through which habeas petitioners must pass. This important shift to restrictive substantive habeas has not been explored in the scholarly literature and is changing the terms of habeas litigation.

This nascent move is not without ripple effects. To flesh out possible implications, Substantive Habeas posits a hypothetical habeas case that, under the Court’s current restrictive substantive habeas law, turns procedural doctrine on its head and creates perverse incentives for state prisoners. What is missing from the Court’s move to substantive habeas is a clear explanation of how the substantive and the procedural aspects of habeas fit together. Taking as a given that the Court has narrowed the procedural door to habeas relief, largely in the name of comity and federalism, Substantive Habeas suggests a complementary explanation for substantive habeas grounded in institutional capacity and expertise.

Keywords: Habeas corpus, criminal law

JEL Classification: K14

Suggested Citation

Thomas, Kimberly, Substantive Habeas (November 19, 2013). American University Law Review, Vol. 63, 2014, Forthcoming, U of Michigan Public Law Research Paper No. 374, Available at SSRN:

Kimberly Thomas (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

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