Document Type

Article

Publication Date

4-2019

Abstract

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 Articleterms "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 his or 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 Article 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.

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