Equitable Gateways: Toward Expanded Federal Habeas Corpus Review of State Court Criminal Convictions

33 Pages Posted: 11 Dec 2018 Last revised: 1 May 2019

Date Written: November 19, 2018


State prisoners who file federal habeas corpus petitions face a maze of procedural and substantive restrictions that effectively prevent almost all prisoners from obtaining meaningful review of their convictions. But it is a mistake to think that habeas litigation is just a Kafkaesque nightmare with no constructive potential. Federal courts do sometimes cut through the doctrinal morass to consider state prisoners’ claims, relying on what this Essay terms equitable gateways to federal habeas relief. Litigants and courts generally underestimate the potential these gateways offer, with the result that habeas litigation does not focus on them as often as it should.

Here I consider one important category of equitable gateways animated by a concern about ensuring that federal claims get fair consideration in the courts. When a federal court believes that a state prisoner has not yet had a full and fair opportunity to present her federal claims and have them fairly considered, it is more likely to bypass procedural and substantive restrictions on review. But state prisoners often fail to highlight certain kinds of fair consideration failures, thus depriving themselves of potential access to the equitable gateways. This Essay suggests that this blind spot is partly due to the history of fair consideration principles: for decades, the idea of a fair consideration gateway was a central feature of proposals for further restricting the scope of federal habeas review. In current circumstances, however, fair consideration is a rubric for expanded habeas review, and habeas litigants should take note.

Keywords: habeas corpus, equitable relief, federal courts, criminal procedure

Suggested Citation

Primus, Eve Brensike, Equitable Gateways: Toward Expanded Federal Habeas Corpus Review of State Court Criminal Convictions (November 19, 2018). 61 Ariz. L. Rev. 291 (2019); U of Michigan Public Law Research Paper No. 624. Available at SSRN: https://ssrn.com/abstract=3287144

Eve Brensike Primus (Contact Author)

University of Michigan Law School ( email )

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

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