The Problem with Direct Collateral Review

Abstract

Federal habeas review of state convictions is sharply circumscribed for a reason: Granting the writ of habeas corpus disrupts the federalism and finality interests that lie at the heart of state sovereignty over criminal law. Both AEDPA and the Supreme Court’s equitable bars to relief reflect the structural dangers inherent in collateral review of state convictions. Given the increasing unavailability of federal habeas relief, state prisoners have turned to another vehicle for collateral federal review, one that bypasses AEDPA’s demanding standard: direct review of state postconviction proceedings. And regrettably, the Court has entertained this AEDPA arbitrage in recent years.

This Essay explains why there is no principled reason to treat the Supreme Court’s direct collateral review differently from federal habeas review of state convictions. Direct collateral review constitutes an intrusion into state sovereignty identical to that of habeas relief, but without the guardrails that attend habeas review. The Court should either decline to grant certiorari in such cases or apply AEDPA deference when it does. To do otherwise countenances a breathtaking arrogation of power to the Supreme Court at the expense of the interests protected by AEDPA. The Court should close this finality-busting loophole.