Would it violate any constitutional right of Tennessee prisoners if the General Assembly repealed the Tennessee Post-Conviction Procedure Act?

Subject

Opinion No. 11-23, Constitutionality of Repeal of Post-Conviction Procedure Act, March 14, 2011

Plain-English summary

A state senator asked the AG a constitutional question with significant practical consequences: if the General Assembly repealed Tennessee's Post-Conviction Procedure Act (Tenn. Code Ann. §§ 40-30-101 to -313), would prisoners have a viable claim that repeal violated their state or federal constitutional rights?

The AG's answer was no, although the analysis acknowledged the issue is not entirely free from doubt.

The constitutional baseline comes from a string of U.S. Supreme Court decisions:

• Case v. Nebraska, 381 U.S. 336 (1965) (per curiam): the Supreme Court granted certiorari to decide whether the Fourteenth Amendment requires states to provide post-conviction corrective process for federal constitutional claims. Nebraska then enacted a post-conviction statute and the Court remanded without deciding the question. Tennessee's Post-Conviction Procedure Act was enacted in 1967 in response to Case (1967 Tenn. Pub. Acts ch. 310; House v. State, 911 S.W.2d 705, 709 (Tenn. 1995)).
• Pennsylvania v. Finley, 481 U.S. 551, 555 (1987): no federal constitutional right to counsel for indigent prisoners seeking state post-conviction relief. The Court observed that "States have no obligation to provide this avenue of relief."
• United States v. MacCollom, 426 U.S. 317, 323 (1976) (plurality): "The Due Process Clause of the Fifth Amendment . . . certainly does not establish any right to collaterally attack a final judgment of conviction."
• Murray v. Giarratano, 492 U.S. 1, 10 (1989) (plurality): even for prisoners under sentence of death, "State collateral proceedings are not constitutionally required as an adjunct to the state criminal proceedings and serve a different and more limited purpose than either the trial or appeal."
• District Attorney's Office v. Osborne, 129 S.Ct. 2308, 2320 (2009): declined to constitutionalize post-conviction DNA testing procedures, stating that federal courts may upset a state's post-conviction relief procedures only if they are "fundamentally inadequate to vindicate the substantive rights provided."

The Tennessee Supreme Court has aligned with this view. In Reid v. State, 197 S.W.3d 694, 700 (Tenn. 2006), the court said: "In Tennessee, the Post-Conviction Procedure Act is a statutory remedy, and the nature and availability of post-conviction relief lies within the discretion of the legislature." See also Pike v. State, 164 S.W.3d 257, 262 (Tenn. 2005).

The AG noted important qualifications:

1. Some federal authority is in plurality or dicta form. Statements that Due Process does not require state collateral proceedings appear in plurality opinions (MacCollom, Giarratano) or arguably dicta (Finley). The Court has not squarely held that a state could eliminate post-conviction relief entirely.
2. Young v. Ragen, 337 U.S. 235, 239 (1949) (an older but never overruled decision), said that states must afford prisoners "some clearly defined method by which they may raise claims of denial of federal rights."
3. Other corrective processes would remain. Repeal would not leave Tennessee prisoners with no avenues at all. Motions for new trial under Tenn. R. Crim. P. 33, state writs of habeas corpus under Tenn. Const. art. I, § 15, and writs of error coram nobis under Tenn. Code Ann. § 40-26-105 would all remain. Justice Clark's concurrence in Case characterized such alternatives as "entirely inadequate," but the alternatives exist.
4. Practical consequences would shift to federal habeas. Under 28 U.S.C. § 2254(b), a state prisoner must exhaust state remedies before pursuing federal habeas review. Repeal would presumably narrow what counts as a state remedy to exhaust, channeling more constitutional claims directly into federal habeas. The deferential AEDPA standard in § 2254(d) (state-court decision must be contrary to or an unreasonable application of clearly established federal law, or based on an unreasonable determination of facts) presumes a developed state-court record. Without state post-conviction review, federal courts would lose state-court findings on claims that typically come up only in collateral review, like ineffective assistance of counsel and Brady violations.

The AG concluded that the weight of authority supports the view that repeal would be constitutional. But the opinion frames this not as legal advice that repeal is desirable, but as a constitutional analysis of legislative authority. The Tennessee Supreme Court could weigh in differently if the question reached it directly, and the practical fallout would be substantial: a greater volume of federal habeas litigation, loss of state finality interests, and the elimination of one of the principal Tennessee mechanisms for raising ineffective assistance and Brady claims.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Aren't ineffective-assistance and Brady claims constitutional rights?

Yes, they are. But the rights themselves and the procedure for vindicating them are different things. The Sixth Amendment guarantees effective assistance of counsel; Brady v. Maryland, 373 U.S. 83 (1963), gives defendants the right to favorable, material evidence. State post-conviction relief is one procedure for raising those claims, and historically it has been the principal way to develop the record (because the claims typically depend on facts outside the trial record). The constitutional rights would still exist after repeal; what would be missing is the state-court forum for litigating them.

Couldn't a prisoner just go directly to federal habeas?

Eventually, but not without complications. 28 U.S.C. § 2254(b) requires exhaustion of state remedies. If state post-conviction were repealed, the question of what's left to exhaust would itself be contested. The remaining state remedies (motion for new trial, state habeas, coram nobis) have narrower scopes. Federal habeas courts would have to decide whether those remaining remedies count as exhaustion options for ineffective-assistance and Brady claims, or whether the absence of a meaningful state collateral remedy excuses exhaustion.

What is § 2254(d)'s AEDPA deference standard, and why does it matter?

Under 28 U.S.C. § 2254(d), a federal habeas court cannot grant relief on a claim that was adjudicated on the merits in state court unless the state-court decision was contrary to, or involved an unreasonable application of, clearly established federal law, or was based on an unreasonable determination of the facts. The deferential standard presumes a state-court adjudication on the merits. Without state post-conviction relief, claims would not get that state-court adjudication, which means federal courts would conduct plenary review rather than deferential review. The state loses the deference it would otherwise get.

Did Young v. Ragen require states to provide post-conviction relief?

Young v. Ragen, 337 U.S. 235, 239 (1949), said states must provide "some clearly defined method by which they may raise claims of denial of federal rights." The AG noted that this older decision sits in some tension with the more recent line of cases (Finley, MacCollom, Giarratano) that say states have no constitutional obligation to provide post-conviction relief. The tension is not squarely resolved in Supreme Court precedent. The AG concluded the modern Court is unlikely to view Due Process as imposing the kind of institutional constraints Young's language might suggest, but acknowledged the residual uncertainty.

What other remedies would prisoners have?

• Motion for new trial under Tenn. R. Crim. P. 33: but the timing window is narrow (typically days after the verdict), so this would not address claims discovered later.
• State writ of habeas corpus under Tenn. Const. art. I, § 15: but Tennessee state habeas has historically had a narrow scope, addressing only void (not merely voidable) judgments.
• Writ of error coram nobis under Tenn. Code Ann. § 40-26-105: useful for newly discovered evidence in some circumstances, but with limitations on what claims can be raised.

Justice Clark in Case characterized these alternatives as "entirely inadequate" relative to a robust state post-conviction system. The AG noted this critique but did not resolve whether the alternatives, taken together, would constitute the "fundamentally inadequate" baseline that Osborne suggested would be the federal constitutional floor.

Could a court declare repeal unconstitutional on adequacy-of-process grounds in a specific case?

Possibly. The AG cautioned that "the unavailability of the procedures presently set forth in Title 40, Chapter 30 would allow litigants to argue that they had not been afforded meaningful corrective process in individual cases, thereby presenting greater opportunities for the reversal of convictions." That is, the constitutional question on the books might be resolved one way (no facial unconstitutional infirmity in repeal), but as-applied challenges (specific defendants arguing the remaining process is inadequate to vindicate their specific claims) could succeed.

Background and statutory framework

The Post-Conviction Procedure Act, Tenn. Code Ann. §§ 40-30-101 to -313, was first enacted in 1967 (1967 Tenn. Pub. Acts ch. 310) in response to Case v. Nebraska's prompt to states to enact corrective procedures. House v. State, 911 S.W.2d 705, 709 (Tenn. 1995). The Act lets petitioners present constitutional claims that could not have been litigated at trial or on direct appeal, including ineffective assistance of counsel and Brady v. Maryland, 373 U.S. 83 (1963), claims. Tenn. Code Ann. § 40-30-103 sets out grounds for relief; § 40-30-106(f) allows dismissal of waived or previously determined claims.

State post-conviction findings carry weight in subsequent federal habeas review. Under 28 U.S.C. § 2254(b), the petitioner must exhaust state remedies. Under § 2254(d), federal habeas relief is constrained by AEDPA's deferential standard. The system as designed channels constitutional claims first to the state court (which is, per Keeney v. Tamayo-Reyes, 504 U.S. 1, 7-9 (1992), "the most appropriate forum for resolution of factual issues in the first instance"), then to federal habeas under deferential standards.

The federal constitutional baseline:

• Case v. Nebraska, 381 U.S. 336 (1965) (per curiam): left open the Fourteenth Amendment requirement question after Nebraska enacted a post-conviction statute. Justice Brennan's concurrence praised state action; Justice Clark's concurrence noted that prior corrective remedies were "entirely inadequate."
• Pennsylvania v. Finley, 481 U.S. 551, 555-57 (1987): no Sixth Amendment right to counsel in state post-conviction proceedings; states have no constitutional obligation to provide post-conviction relief.
• United States v. MacCollom, 426 U.S. 317, 323 (1976) (plurality): Due Process does not establish any right to collaterally attack a final conviction.
• Murray v. Giarratano, 492 U.S. 1, 10 (1989) (plurality): Finley applies to capital cases; state collateral proceedings are not constitutionally required.
• District Attorney's Office v. Osborne, 129 S.Ct. 2308, 2320 (2009): refused to constitutionalize DNA testing procedures; federal courts may upset state post-conviction procedures only if "fundamentally inadequate."

The Tennessee Supreme Court has adopted the federal view:

• Reid v. State, 197 S.W.3d 694, 700 & n.3 (Tenn. 2006): "In Tennessee, the Post-Conviction Procedure Act is a statutory remedy, and the nature and availability of post-conviction relief lies within the discretion of the legislature."
• Pike v. State, 164 S.W.3d 257, 262 (Tenn. 2005): same.

The AG also noted a competing strand of older authority:

• Young v. Ragen, 337 U.S. 235, 239 (1949): "We recognize the difficulties with which the Illinois Supreme Court is faced in adapting available state procedures to the requirement that prisoners be given some clearly defined method by which they may raise claims of denial of federal rights. Nevertheless, that requirement must be met."

The opinion bottom-lined: repeal would raise significant questions about the adequacy of corrective process, but the weight of authority supports the view that no constitutional entitlement to state post-conviction procedures exists. The opinion is unusual in that it explicitly flags policy consequences (shifting cost to federal courts, undermining state finality interests, increased reversal opportunities) without recommending one course or another, leaving the question to the legislature.

Citations

• Tenn. Code Ann. §§ 40-30-101 to -313 (Post-Conviction Procedure Act)
• Tenn. Code Ann. § 40-30-103 (grounds for relief)
• Tenn. Code Ann. § 40-30-106(f) (dismissal of waived/determined claims)
• Tenn. Code Ann. § 40-26-105 (writ of error coram nobis)
• Tenn. Const. art. I, § 15 (state habeas corpus)
• Tenn. R. Crim. P. 33 (motion for new trial)
• 28 U.S.C. § 2254(b) (exhaustion requirement)
• 28 U.S.C. § 2254(d) (AEDPA deference standard)
• 1967 Tenn. Pub. Acts ch. 310 (original Post-Conviction Procedure Act)
• Case v. Nebraska, 381 U.S. 336 (1965)
• Pennsylvania v. Finley, 481 U.S. 551 (1987)
• United States v. MacCollom, 426 U.S. 317 (1976)
• Murray v. Giarratano, 492 U.S. 1 (1989)
• Young v. Ragen, 337 U.S. 235 (1949)
• Brady v. Maryland, 373 U.S. 83 (1963)
• Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992)
• District Attorney's Office v. Osborne, 129 S.Ct. 2308 (2009)
• House v. State, 911 S.W.2d 705 (Tenn. 1995)
• Reid v. State, 197 S.W.3d 694 (Tenn. 2006)
• Pike v. State, 164 S.W.3d 257 (Tenn. 2005)
• Dwight Aarons, Adjudicating Claims of Innocence for the Capitally Condemned in Tennessee: Embracing a Truth Forum, 76 Tenn. L. Rev. 511 (2009)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2011/op11-023.pdf

Original opinion text

Constitutionality of Repeal of Post-Conviction Procedure Act

QUESTION

Would the General Assembly's repeal of Tennessee's Post-Conviction Procedure Act, Tenn. Code Ann. §§ 40-30-101 to -313 (2006), infringe any right of state prisoners under the state or federal constitutions?

OPINION

No. Although repeal of the Post-Conviction Procedure Act would raise significant questions regarding the adequacy of corrective process in the state courts, the weight of authority suggests that there is no constitutional entitlement to state post-conviction procedures.

ANALYSIS

Tennessee's Post-Conviction Procedure Act was first enacted in 1967 following the United States Supreme Court's decision in Case v. Nebraska, 381 U.S. 336 (1965) (per curiam). See 1967 Tenn. Pub. Acts, ch. 310; House v. State, 911 S.W.2d 705, 709 (Tenn. 1995) (noting that the state's post-conviction law was passed in response to Case). In Case, the Court granted certiorari to decide whether the Fourteenth Amendment requires that the States afford state prisoners some adequate corrective process for the hearing and determination of claims of violation of federal constitutional guarantees. Case, 381 U.S. at 337. After certiorari was granted, however, Nebraska became the seventh state to enact a statute providing a post-conviction procedure. Id. The Court therefore left open the question, remanding the case to the state court for reconsideration in light of the supervening statute. Id. In a concurring opinion, Justice Brennan lauded Nebraska's action, indicating that adequate state procedures, in tandem with doctrinal constraints on the federal writ of habeas corpus, promote state primacy in the administration of the criminal law, achieve judicial economies, and enhance the finality of state court determinations of federal constitutional questions. Id. at 345 (Brennan, J., concurring); see also id. at 340 (Clark, J., concurring) ("This will enable prisoners to 'air out' their claims in the state courts and will stop the rising conflict presently being generated between federal and state courts.").

As presently formulated, Tennessee's Post-Conviction Procedure Act allows petitioners to present constitutional claims, such as claims of ineffective assistance of counsel or violations of Brady v. Maryland, 373 U.S. 83 (1963), that could not have been litigated in connection with the original trial or direct appeal. See, e.g., Tenn. Code Ann. §§ 40-30-103 (setting forth grounds for relief); -106(f) (providing for dismissal of claims that have been waived or previously determined). Findings made by a state post-conviction court are thereafter accorded a measure of deference when a prisoner seeks federal review of constitutional claims by means of a petition for a writ of habeas corpus. Provided that the State affords a "corrective process," a petitioner must exhaust the remedies available in state court in order to have consideration of his claims in a federal habeas court. See 28 U.S.C. § 2254(b). For claims fairly presented to the state courts, habeas relief may not be granted unless the state-court decision was "contrary to, or involved an unreasonable application of" clearly established federal law, or was based on an "unreasonable determination of the facts." See id. § 2254(d). These strictures are thought to secure to the States many of the advantages that Justice Brennan envisioned in his Case concurrence: they channel the resolution of claims to the state courts, "the most appropriate forum for resolution of factual issues in the first instance", contribute to the finality of convictions by decreasing the opportunities to relitigate them, and allow state courts to correct their own errors, thereby reducing the "inevitable friction" that results when a federal habeas court overturns either the factual or legal conclusions reached by the state-court system. See, e.g., Keeney v. Tamayo-Reyes, 504 U.S. 1, 7-9 (1992).

In 1987, the United States Supreme Court had occasion to touch upon the question presented in Case. In Pennsylvania v. Finley, the Court held that there was no federal constitutional right to counsel for indigent prisoners seeking state post-conviction relief. Finley, 481 U.S. 551, 555 (1987). In so doing, the Court observed that "States have no obligation to provide this avenue of relief . . . ." Id. at 557; see also United States v. MacCollom, 426 U.S. 317, 323 (1976) (plurality opinion) ("The Due Process Clause of the Fifth Amendment . . . certainly does not establish any right to collaterally attack a final judgment of conviction."). Two years later, a plurality of the Court held that Finley applies to those inmates under sentence of death as well as to other inmates, reiterating that "State collateral proceedings are not constitutionally required as an adjunct to the state criminal proceedings and serve a different and more limited purpose than either the trial or appeal." Murray v. Giarratano, 492 U.S. 1, 10 (1989) (plurality opinion). The Tennessee Supreme Court has cited Giarratano with approval, repeatedly recognizing that post-conviction procedures are not constitutionally required. Reid v. State, 197 S.W.3d 694, 700 & n.3 (Tenn. 2006). "In Tennessee, the Post-Conviction Procedure Act is a statutory remedy, and the nature and availability of post-conviction relief lies within the discretion of the legislature." Id. at 700 (footnote omitted); see Pike v. State, 164 S.W.3d 257, 262 (Tenn. 2005) (same).

In view of these decisions, "[i]t now appears that the state does not have to have a post-conviction process." Dwight Aarons, Adjudicating Claims of Innocence for the Capitally Condemned in Tennessee: Embracing a Truth Forum, 76 Tenn. L. Rev. 511, 548 (2009). Nevertheless, the Giarratano line of cases may not be fully dispositive of the question. While these decisions establish, for example, that there is no constitutional right to counsel during post-conviction proceedings, none squarely addresses the question presented in Case, and, in the federal cases, statements to the effect that Due Process requires no state collateral proceedings appear either in what is arguably dicta or in plurality opinions. See Finley, 481 U.S. at 556 (stating that the "procedures followed by respondent's habeas counsel fully comported with fundamental fairness," perhaps rendering the subsequent statement regarding the State's obligations to provide an avenue for relief inessential to the outcome); MacCollom, 426 U.S. at 323 (plurality opinion); Giarratano, 492 U.S. at 10 (plurality opinion); compare Young v. Ragen, 337 U.S. 235, 239 (1949) ("We recognize the difficulties with which the Illinois Supreme Court is faced in adapting available state procedures to the requirement that prisoners be given some clearly defined method by which they may raise claims of denial of federal rights. Nevertheless, that requirement must be met."). Still, the tenor of these decisions suggests that modern courts are unlikely to view the Due Process Clause as a source of institutional constraints on state legislatures respecting the availability of post-conviction relief. See, e.g., District Attorney's Office v. Osborne 129 S.Ct. 2308, 2320 (2009) (declining to constitutionalize procedures for DNA testing, and stating that "[f]ederal courts may upset a State's post-conviction relief procedures only if they are fundamentally inadequate to vindicate the substantive rights provided"). Repeal of the Post-Conviction Procedure Act would not, moreover, result in a complete absence of corrective process; state prisoners still could pursue motions for new trial, see Tenn. R. Crim. P. 33, state writs of habeas corpus, see Tenn. Const. art. I, § 15, and writs of error coram nobis, see Tenn. Code Ann. § 40-26-105. But see Case, 381 U.S. at 338 (Clark, J., concurring) (characterizing such remedies as being "entirely inadequate"). Rather, the unavailability of the procedures presently set forth in Title 40, Chapter 30 would allow litigants to argue that they had not been afforded meaningful corrective process in individual cases, thereby presenting greater opportunities for the reversal of convictions. In particular, the absence of post-conviction relief at the state level would likely channel a greater number of constitutional claims into the federal habeas courts, where they could receive plenary consideration. Although this would shift certain costs from the state-court system to the federal judiciary (which result is unlikely to be met with equanimity there, see id.), it would also undermine the State's interests in the finality of its criminal judgments, in addressing allegations of error or misconduct in its own courts, and in acting as first arbiter of questions of constitutional criminal law.

ROBERT E. COOPER, JR.
Attorney General and Reporter

GORDON W. SMITH
Associate Solicitor General

JAMES E. GAYLORD
Assistant Attorney General

Requested by:
The Honorable Mike Faulk
State Senator
Suite 11A, Legislative Plaza
Nashville, TN 37243