Academic highlight: Vázquez and Vladeck on the constitutional right to post-conviction review

Did the Supreme Court’s 2016 decision in Montgomery v. Louisiana implicitly hold that some prisoners have a constitutional right to post-conviction habeas review? In a recent article in the Virginia Law Review, Professor Carlos Vázquez and Professor Stephen Vladeck argue that this “seemingly innocuous” decision rests upon the assumption that prisoners have a constitutional right to habeas review in some court in at least some circumstances — upending the last 50 years of precedent and federal legislation strongly suggesting otherwise. To be sure, Montgomery didn’t say so explicitly. The court held only that a state court sitting in habeas was required to give retroactive effect to the Supreme Court’s 2012 decision in Miller v. Alabama, which held that the Eighth Amendment prohibits the imposition of mandatory life sentences without parole for juveniles. But Vázquez and Vladeck argue that Montgomery‘s holding necessarily rests upon a constitutional right to post-conviction collateral review — even if the court failed to realize it at the time.

To understand Vázquez and Vladeck’s argument, we first have to revisit some background principles governing habeas review. First, collateral review of state convictions – that is, as the Supreme Court put it in 2011 in Wall v. Kholi, “judicial review that occurs in a proceeding outside of the direct review process” — is available in most state courts under state law. Second, federal statutes authorize federal courts to provide collateral review of those state court convictions as well — either after the state collateral review process is finished, or in place of it, and federal courts also provide collateral review of federal convictions. Third, the Supreme Court established in Teague v. Lane that habeas petitioners normally cannot benefit from a “new rule” of constitutional law announced by the Supreme Court after their convictions have become final. But Teague also recognized an important exception to this anti-retroactivity principle: If a Supreme Court opinion creates a “new rule” that changes the substantive law under which the prisoner was convicted and sentenced (like the Eighth Amendment rule articulated in Miller), then that new substantive rule can be applied by a state or federal habeas court on collateral review.

Montgomery turned that “can” into a “must.” In 1970, Henry Montgomery was sentenced to life without parole for a crime he committed when he was seventeen years old. In July 2012, Montgomery filed a habeas petition in state court, arguing that the Supreme Court’s June 2012 decision in Miller prohibiting mandatory sentences of life without parole for juveniles should be applied retroactively to require his release, or at least his resentencing. The Louisiana state court denied Montgomery’s petition, and Montgomery filed a petition for review in the Supreme Court. By a 6-3 majority, the Supreme Court ruled in Montgomery’s favor. The court held that Miller’s bar against mandatory sentences of life without parole for juveniles applies retroactively in habeas proceedings because it falls within the Teague exception for new substantive rules. But to reach that issue, the court first had to decide a harder jurisdictional question: Do state courts sitting in habeas have a constitutional obligation to apply new rules retroactively, or are they free to craft their own state law rules governing the scope of habeas relief? The Supreme Court held for the first time that state courts must give retroactive effect to new rules of substantive law on collateral review.

Vázquez and Vladeck argue that this jurisdictional holding carries enormous significance. The requirement that states recognize the Teague exception in their own collateral post-conviction proceedings rests on the unstated assumption that prisoners such as Montgomery have a constitutional right to collateral review in some court, whether state or federal — an abrupt departure from the conventional wisdom that neither forum is constitutionally obligated to grant habeas relief to state prisoners seeking post-conviction review.

In fleshing out the consequences of Montgomery’s holding, Vázquez and Vladeck address a number of complex doctrines governing litigation in the federal courts. If the Constitution requires habeas review for prisons in some court, then the next question is which court — state or federal? Vázquez and Vladeck argue that state courts must provide collateral review for federal claims under the same long-recognized supremacy clause principles that mandate that states provide a forum for the adjudication of all types of federal claims. This conclusion is also in accord with the Constitution’s so-called “Madisonian Compromise,” under which Congress can choose whether to establish the lower federal courts. If habeas review is constitutionally required, and if Congress has the constitutional authority to abolish lower federal courts at any time, then it follows that state courts have a constitutional obligation to grant collateral review of state convictions in habeas, at least when federal courts are unavailable.

When it comes to federal prisoners, the situation is even trickier. In Tarble’s Case, decided in 1872, the Supreme Court held that state courts lack the authority to issue habeas relief to those held in federal custody. Although Tarble’s Case has long been read as imposing constitutional limits on state courts’ authority to grant habeas relief, Vázquez and Vladeck think it is better understood as a statutory restriction on state courts. As long as the lower federal courts exist, and Congress has granted them the authority to engage in post-conviction habeas review of federal convictions, then state courts lack the power to grant habeas relief to federal prisoners. But Vázquez and Vladeck conclude that if Congress were to abolish the lower federal courts, the state courts would be authorized — indeed, constitutionally obligated — to grant habeas relief to federal prisoners as well, at least on claims like the one at issue in Montgomery.

In short, Vázquez and Vladeck conclude that Montgomery dramatically upended the long-standing assumption that collateral review is a matter of legislative grace rather than constitutional compulsion. As they admit, however, the Supreme Court may not have fully thought through the implications of its own decision.