enforcement and health care, mayors from such cities as New Orleans, Miami, Chicago, San Francisco, Cleveland, and Cincinnati looked beyond traditional regulation and tried liti- gation as a means to recoup the millions of dollars that the cities spend each year in coping with gun violence. The cities hoped to emulate the success of state governmen ts in winning record settlements from the tobacco industry. In February 1999 they were encouraged when a federal jury returned the first-ever verdict holding gun makers liable for damages caused by the use of their products in a crime. But as many more cities considered filing suits, the gun industry fought back with LOBBYING and launched pre-emptive strikes in state legislatures against future lawsuits. Many of the lawsuits were dismissed. The gun industry enjoyed two victories in 2000 as judges dismissed suits brought by the cities of Philadel- phia and Chicago. Charging the industry with a public NUISANCE, both cities sought to recover the public costs of gun violence, including medical care, police protection, emergency services, and prison costs. The cities argued that gun manu- facturers and distributors were responsible for these costs because they knowingly or negligently sold guns to dealers who then supplied them to criminals. A judge in the Cook County CIRCUIT COURT dismissed Chicago’sclaimbecauseChicago had failed to prove that gun manufacturers were responsible for public costs resulting from criminal gun violence. Likewise, a Pennsylvania judge dismissed Philadelphia’slawsuitbecause under the Pennsylvania Uniform Firearms Act— for which the gun industry lobbied—the state of Pennsylvania has the sole authority to regulate the industry. State and federal appellate courts have generally held in favor of gun manufacturers as well. The California Supreme Court, in Merrill v. Navegar, Inc., 28 P.3d 116 (Cal. 2001), held that gun manufacturers cannot be held legally responsible when their products are used for criminal activity. The closely watched case stemmed from a 1993 shooting rampage in a San Francisco office tower that left eight people dead and six wounded. Similarly, the U.S. Court of Appeals for the Third Circuit, in Camden County Board of Chosen Freeholders v. Beretta U.S. A. Corp., 273 F.3d 536 (3d Cir. 2001), upheld the dismissal of a suit brought by Camden County, New Jersey, which had accused several gun manufacturers of creating a public nuisance and acting negligently in its distribution of handguns. The Third Circuit also upheld the dismissal of the suit brought by the city of Philadelphia in City of Philadelphia v. Beretta U.S.A. Corp., 277 F.3d 415 (3d Cir. 2002). Some lawsuits involving gun manufacturers were settled out of court. In March 2000, under pressure from many lawsuits nationwide, Smith & Wesson, the nation’s oldest and largest manufacturer of handguns, entered into a settlement to end many of the cases. Under the agreement, Smith & Wesson agreed to place tamper-proof serial numbers on handguns to prevent criminals from scratching them off. It also promised to manufacture its handguns with trigger locks to prevent them from being fired by unauthorized users. The landmark Hellercase was a legal chal- lenge to the District of Columbia’s gun control laws. In 1976 the district enacted firearms control regulations that banned residents from owning handguns, automatic firearms, and high-capacity semi-automatic firearms. The law also prohibited possession of unregistered firearms. For those with lawfully registered handguns, the law required owners to keep the firearm unloaded and disassemble d or otherwise bound by a trigger lock. Six residents of the District of Columbia challenged the law. Four plaintiffs wanted to have guns in their homes to provide SELF- DEFENSE, whereas another plaintiff wanted to keep a gun assembled in his home without a trigger lock. A final plaintiff, Dick Heller (the named plaintiff in the Supreme Court action), wanted to possess a gun both at home and in his capacity as a special police officer. The U.S. district court for the District of Columbia ruled against the plaintiffs in 2004, but in 2007 the U.S. Court of Appeals for the District of Columbia ruled that the D.C. restrictions on handguns violated the Second Amendment. In a lengthy opinion by Judge Laurence H. Silberman, the court ruled that the Second Amendment provided an individual right and that the D.C. statute violated this individual right. Silberman based his reasoning primarily on the text of the amendment itself. Parker v. Dist. of Columbia, 478 F.3d 370 (D.C. Cir. 2007). The Supreme Court, in a 5–4 decision, upheld the appeals court and agreed that the Second Amendment gives individuals the right to possess firearms. Justice Antonin Scalia, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 178 GUN CONTROL writing for the majority, focused on the text of the amendment. Scalia stated: The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, ‘Because a well regulated Militia is necessary to the security of a free State, the Take That! And That! The Gun Control Debate Continues G un control motivates one of U.S. law’s fiercest duels. Arguments favoring control range from calls for regulation to support for total disarmament. At the most moderate point of the spectrum is the idea that government should regulate who owns guns and for what purpose, a position held by the lobby Handgun Control Incorpo- rated (HGI), which helped write the Brady law. This kind of monitoring is far too little for one antigun group, the Coalition to Stop Gun Violence, which demands a complete ban on manufacturing and selling guns to the general public. The opposition leaves room for only very slight compromise. The NATIONAL RIFLE ASSOCIA- TION (NRA)—the most powerful opponent of gun control—generally fights any re- strictive measure. The NRA has opposed efforts to ban so-called cop-killer bullets, which can pierce police safety vests. It has supported background checks at the time of purchase, yet only if these are done instantly soasnottoinconvenience the vast majority of gun buyers. Even more ada- mant is the group Gun Owners of America, which opposes any legal constraints. With so many laws on the books, the question of gun control’s constitutional- ity would seem already settled. Yet this is where the gun control debate begins. The SECOND AMENDMENT reads, “A well regu- lated MILITIA, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Does this mean citizens have a constitutional right to own guns? The gun lobby says yes. A minority of legal scholars believe that the framers of the BILL OF RIGHTS meant to include citizens along with “a well regulated Militia” in the right to bear arms. One supporter of this view is Professor Sanford Levinson, of the Uni- versity of Texas, who argues that the Second Amendment is intended to tie the hands of government in restricting private ownership of guns. He charges that liberal academics who support gun control read only the Constitution’s Second Amendment so narrowly. Themajorityviewismorerestrictivein its reading. It pictures the Second Amend- ment as tailored to a specific right, namely, that of states to equip and maintain a state NATIONAL GUARD.Harvardlawprofessor Laurence Tribe argues that “[t]he Second Amendment’s preamble makes it clear that it is not designed to create an individual right to bear arms outside of the context of a state-run militia.” This argument has a leading advan- tage over the minority position: It is what the U.S. Supreme Court has consistently held for over fifty years. In the 1939 case of United States v. Miller, 307 U.S. 174; 59 S. Ct. 816, 83 L. Ed. 1206 (1939)—the only modern Supreme Court case to address the issue—a majority of the Court refused to find an individual constitutional right to bear arms. Because the meaning of the Second Amendment seems well settled, the dispute has turned to pragmatics. How well does gun control work, if it works at all? Measuring lives saved by gun control is practically impossible; it is only possi- ble to count how many lives are lost to gun violence. Advocates generally claim that the fact that lives are lost to guns and the possibility that even one life may be saved through gun control are justifica- tion enough for legislation. They can quantify gains of another sort under the Brady law. In early 1995 the JUSTICE DEPARTMENT estimated that background checks had kept 40,000 felons from buying handguns, a figure derived from information provided by the state and local authorities who ran the checks. Opponents say gun control is a gross failure. They argue that it never has kept criminals from buying guns illegally. Instead, they say, prohibition efforts have only been nuisances for law-abiding gun owners: city ordinances such as Chicago’s that ban handgun sales send buyers to the suburbs, and the Brady law’sfive-day waiting period amounts to another unfair penalty. Moreover, opponents rebut argu- ments about gun violence by insisting that guns are actually used to protect their owners from harm. The NRA’schief lobbyist has argued that the SELF-DEFENSE effectivenessofgunsisprovedby“the number of crimes thwarted, lives pro- tected, injuries prevented, medical costs saved and property preserved.” Settling the gun control debate is no more likely than solving the problem of crime itself. In fact, only the latter could ever bring about the former. After all, it is violent crime, more than accidental gun deaths involving children, that animates the gun control movement. On this point, the two sides agree briefly and then diverge once again. Both want tougher action on crime. The key difference is that gun control opponents want such measures to include almost every traditional means available—more police officers, more pris- ons, and longer prison sentences—except the control of guns. Advocates believe there can be no effective anticrime measures without gun control. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION GUN CONTROL 179 right of the people to keep and bear Arms shall not be infringed.’ Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose. Scalia pointed out that the Second Amend- ment is one of three places in the BILL OF RIGHTS where the phrase “the right of the people” is used. The two other instances include the Assembly-and-Petition Clause of the FIRST AMEND- MENT and the Search-and-Seizure Clause of the FOURTH AMENDMENT.Ineachinstance,thephrase referred to an individual right, rather than a collective right. In addition, prior draft versions of the Second Amendment clearly referred to the right t o bear arms as an individual right. Therefore, the Second Amendment provided individual, rather than collective, rights. Based on this conclusion, the Court ruled that the D.C. handgun ban and the trigger-lock requirement both violated the Second Amend- ment. The total handgun ban effectively prohibited an entire class of “arms” that citizens use for lawful self-defense. The trigger-lock requirement made it impos sible for citizens to use guns for self-defense, thus rendering this restriction uncons titutional as well. FURTHER READINGS Doherty, Brian. 2008. Gun Control on Trial: Inside the Supreme Court Battle over the Second Amendment. Washington, D.C.: Cato Institute. Dolan, Edward F., and Margaret M. Scariano. 1994. Guns in the United States. New York: Watts. Halbrook, Stephen P. 2008. The Founders’ Second Amend- ment: Origins of the Right to Bear Arms. New York: Ivan R. Dee. Kopel, David B., et al. 2003. Supreme Court Gun Cases. Phoenix, Ariz: Bloomfield Press. Lott, John R., Jr. 2000. More Guns, Less Crime: Understand- ing Crime and Gun-Control Laws. 2d ed. Chicago: Univ. of Chicago Press. Spitzer, Robert. 2007. The Politics of Gun Control. 4th ed. Washington, D.C.: CQ Press. CROSS REFERENCE Weapons. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 180 GUN CONTROL HABEAS CORPUS [Latin, You have the body.] A writ (court order) that commands an individual or a government official who has restrained another to produce the prisoner at a designated time and place so that the court can determ ine the legality of custody and decide whether to order the prisoner’s release. A WRIT of habeas corpus directs a person, usually a prison warden, to produce the prisoner and justify the prisoner’s detention. If the prisoner argues successfully that the incar- ceration is in violation of a constitutional right, the court may order the prisoner’s release. Habeas corpus relief also may be used to obtain custody of a child or to gain the releas e of a detained person who is insane, is a drug addict, or has an infectious disease. Usually, however, it is a response to imprisonment by the criminal justice system. A writ of habeas corpus is authorized by statute in federal courts and in all state courts. An inmate in state or federal prison asks for the writ by filing a PETITION with the court that sentenced him or her. In most states, and in federal courts, the inmate is given the opportu- nity to present a short oral argument in a hearing before the court. He or she also may receive an evidentiary hearing to establish evidence for the petition. The habeas corpus concept was first expressed in the MAGNA CARTA, a constitutional document forced on King John by English landowners at Runnymede on June 15, 1215. Among the liberties declared in the Magna Carta was that “No free man shall be seized, or imprisoned, or disseised, or outlawed, or exiled, or injured in any way, nor will we enter on him or send against him except by the lawful judgment of his peers, or by the law of the land.” This principle evolved to mean that no person should be deprived of freedom without DUE PROCESS OF LAW. The writ of habeas corpus was first used by the COMMON-LAW COURTS in thirteenth- and fourteenth-century England. These courts, composed of legal professionals, were in competition with feudal courts, which were controlled by local landowners, or “lords.” The feudal courts lacked procedural consistency, and on that basis, the COMMON LAW courts began to issue writs demanding the release of persons imprisoned by them. From the late fifteenth to the seventeenth centuries, the common law courts used the writ to order the release of persons held by royal courts, such as the Chancery, Admiralty courts, and the STAR CHAMBER . The only reference to the writ of habeas corpus in the U.S. Constitution is contained in Article I, Section 9, Clause 2. This clause provides, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” President ABRAHAM LINCOLN H 181 A sample application for habeas corpus. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. Application for Habeas Corpus File No. In The General Court Of Justice ٗ District ٗ Superior Court Division STATE OF NORTH CAROLINA County STATE VERSUS Name of Defendant Race Sex Date of Birth Social Security No. Name of Agency in Whose Custody Defendant Confined ٗ N.C. DOC ٗ Sheriff of County APPLICATION AND WRIT OF HABEAS CORPUS AD PROSEQUENDUM CHARGES PENDING FOR TRIAL APPLICATION File No. Offense(s) To Any Judge Of The Trial Division Named Above: The defendant named above is confined in the custody of the agency named above. The prosecutor requests that a Writ of Habeas Corpus Ad Prosequendum be issued to the agency, requiring that the defendant be delivered, on the court date and at the time and place shown below, to the court in which the charge(s) referred to above are pending. Court Date Court Time Date of Application Location of Court Signature of Prosecutor ٗ AM ٗ PM WRIT To the Agency Named Above: The defendant named above is confined in your custody. Upon application of the prosecutor named above, you are ORDERED to deliver the defendant to the custody of the sheriff of this county so that the defendant may be brought before this Court on the court date and at the time and place referred to above. To: ٗ The Sheriff of this County ٗ Other ___________________________________________ You are ORDERED to serve this writ upon the agency named above; to take the defendant into custody and bring him before this Court on the date and at the time and place shown above and, when the court proceeding has been completed and the defendant is released by the court, to return the defendant to the custody of that agency unless the court directs otherwise. Date Court Name (Type or Print) Signature ٗ District Court Judge ٗ Superior Court Judge RETURN OF SERVICE AOC-CR-223, Rev. 10/96 © 1997 Administrative Office of the Original-Custodian Copy-District Attorney Copy-File Date Writ Received Date Writ Served on Custodian Date of Return of Service Name of Person Served Signature of Person Making Return of Service Date Def. Received from Custodian Date Def. Returned to Custodian ٗ Deputy Sheriff ٗ Other I certify that this Writ was received and served as follows. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 182 HABEAS CORPUS suspended the writ in 1861, when he authorized his Civil War generals to arrest anyone they thought to be dangerous. In addition, Congress suspended it in 1863 to allow the Union army to hold accused persons temporarily until trial in the civilian courts. The Union army reportedly ignored the statute suspending the writ and conducted trials under MARTIAL LAW. In 1789 Congress passed the JUDICIARY ACT OF 1789 (ch. 20, § 14, 1 Stat. 73 [codified in title 28 of the U.S.C.A.]), which granted to federal courts the power to hear the habeas corpus petitions of federal prisoners. In 1867 Congress passed the Habeas Corpus Act of February 5 (ch. 28, 14 Stat. 385 [28 U.S.C.A. §§ 2241 et seq.]). This statute gave federal courts the power to issue habeas corpus writs for “any person restrained in violation of the Constitution, or of any treaty or law of the United States.” The U.S. Supreme Court has interpreted it to mean that federal courts may hear the habeas corpus petitions of state prisoners as well as federal prisoners. The writ of habeas corpus is an EXTRAORDI- NARY REMEDY because it gives a court the power to release a prisoner after the prisoner has been processed through the criminal justice system, with all its procedural safeguards and appeals. For this reason, the burden is initially on the petitioning prisoner to prove that he or she is being held in violation of a constitutional right. If the PETITIONER can meet this burden with sufficient evidence, the burden then shifts to the warden to justify the imprisonment. A prisoner may file a petition for a writ of habeas corpus with the sentencing court only after exhausting all appeals and motions. Federal courts may receive a petition from a state prisoner, but no t until the petitioner has attempted all available appeals and motions and habeas corpus petitions in the state courts. Federal prisoners must exhaust all available appeals and motions in the federal sentencing court and federal appeals courts before fil ing a habeas corpus petition with the sentencing court. If the first petition is denied, the inmate may petition the appeals courts. A petition for a writ of habeas corpus is a CIVIL ACTION against the jailer. It is neither an appeal nor a continuation of the criminal case against the prisoner. It is not used to determine guilt or innocence. Rather, the purpose is solely to determine whether the confinement is in violation of a constitutional right. This is significant because it limits the scope of complaints that a petitioner may use as a basis for the writ. Violation of the Due Process Clauses of the Fifth and Fourteenth Amendments is the most common basis for a writ of habeas corpus. Prosecutorial misconduct, juror MALFEASANCE, and ineffective assistance of counsel are common due process grounds for the writ. FIFTH AMEND- MENT grounds include failure of the police to give Miranda warnings before in-custody questioning (in violation of the right against SELF-INCRIMINA- TION ), and multiple trials (in violation of the DOUBLE JEOPARDY prohibition). The EIGHTH AMEND- MENT right against CRUEL AND UNUSUAL PUNISHMENT is another common ground for habeas corpus relief, especially in cases involving the death penalty or a lengthy prison term. There are several notable restrictions on the writ’s application. FOURTH AMENDMENT violations of the right against unreasonable SEARCH AND SEIZURE cannot be raised in a habeas corpus petition. Prisoners are not entitled to a court- appointed attorney for habeas corpus petitions. Newly developed constitutional principles will not be applied retroactively in habeas corpus cases except where doubt is cast on the guilt of the prisoner. Delay in filing a habeas petition may resu lt in its dismissal if the government is prejudiced (i.e., made less able to respond) by the delay. In addition, the petitioner must be in custody to request a writ of habeas corpus. This rule prevents a prisoner from challenging a conviction through habeas corpus after serving out a sentence for the conviction. The law of habeas corpus is ever changing. In the 1990s the U.S. Supreme Court took steps to further limit the writ’s application. In Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S. Ct. 1715, 118 L. Ed. 2d 318 (1992), the Court held that a habeas corpus petitioner is not entitled to an evidentiary hearing in federal court unless he or she can show two things: a reason for failing to develop evidence at trial, and actual prejud ice to the prisoner’s defense as a result of the failure. In Herrera v. Collins, 506 U.S. 390, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993), the Court held that a claim of actual innocence is not a basis for federal habeas corpus relief. This means that newly discovered evidence alone does not entitle a petitioner to federal habeas corpus relief. The availability and import of habeas corpus in state courts is also subject to change through GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION HABEAS CORPUS 183 judicial decisions and new laws. For example, in 1995 the Texas Legislature passed a law that made the habeas corpus process concurr ent with appeals (Tex. Crim. Proc. Code Ann. art. 11.071). This law effectively limited the number of times that a Texas state prisone r could challenge the disposition of a criminal case. Significantly, the law applied to all criminal defendants, including those facing the death penalty. Under the legislation, a death row inmate has only one round of review in Texas state courts before seeking relief in federal court. In 1996 Congress passed the Anti-Terrorism and Effective Death Penalty Act (AEDPA) (Pub. L. No. 104-132, 110 Stat. 1214). Congress sought to streamline post-conviction appeals proceedings and to curtail the time that prison- ers could use to seek habeas corpus relief. Since the enactment of the law, the U.S. Supreme Court has been called upon to interpret a number of the AEDPA provisions; these rulings primarily have addressed technical details of the workings of the new law, but the Court has endorsed the AEDPA and removed jurisdiction from the lower federal courts to hear many habeas petitions. The Court upheld the consti- tutionality of the AEDPA in Felker v. Turpin, 518 U.S. 651, 116 S. Ct. 2333, 135 L. Ed. 2d 827 (1996). The habeas corpus provisions represent a major shift in federal-state judicial relations, for Congress directed that federal courts generally defer to state court judgments on questions of federal CONSTITUTIONAL LAW in criminal cases. The AEDPA established a “deference” standard, which mandates that the federal courts, in reviewing state court convictions, defer to a Rubin “Hurricane” Carter F B ederal courts grant writs of habeas corpus only when grave constitutional violations have occurred. The granting of Rubin “Hurricane” Carter’s habeas petition in 1985 freed him from almost 20 years of imprisonment for a crime he maintains he did not commit. Carter was a top-ranked middleweight boxer when he and John Artis were arrested in 1966 and charged w ith murdering three people in Paterson, New Jersey. Carter and Artis w ere African Ameri- can; the victims were white. Carter and Artis claimed they were the victims of racism and a police frame-up, but they were convicted of murder and sentenced to life imprisonment. Carter fought his conviction in state court, but the verdict was uphe ld. In 1974 he published The Sixteenth Round: From Number 1 Contender to Number 45472. T he book became a national best- seller and drew attention to his case. In 1975 Bob Dylan wrote and recorded the song “Hurricane,” which recounted Carter’s arrest and trial and characterized Carter as an innocent man. T his publicity, along with an investigation by the New Jersey public defenders’ office, led to a motion for a new trial. The motion was granted, but Carter and Artis were convicted again in 1976. Carter remained imprisoned; Artis was paroled in 1981. After all state appeals were exhausted, the only remaining avenue for relief was to file for a writ of habeas corpus in federal court. In November 1985 Judge H. Lee Sarokin ruled that the second murder trial convictions were unconstitutional because the prosecution had been allowed to imply that guilt could be inferred by the defendants’ race and because the prosecution withheld polygraph evidence that could have been used to impeach the credibility of their “star witness” (Carter v. Rafferty, 621 F. Supp. 533 [D. N.J. 1985]). Judge Sarokin therefore granted habeas corpus, overturned the convictions, and ordered “Immediate release from custody with prejudice.” The State of New Jersey appealed to the Third Circuit Court of Appeals, asking to reverse Sarokin’s ruling and requesting that Carter remain incarcer- ated until a final ruling. The Third Circuit rejected both appeals. New Jersey appealed to the U.S. Supreme Court, which also refused to overturn. The state chose not to attempt a third prosecution of Carter and Artis. Carter moved to Canada where he headed the Association for the Defense of the Wrongly Convicted. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 184 HABEAS CORPUS state court ruling on the merits of any habeas corpus claim. This deferral includes questions of fact and of law, as well as mixed questions of FACT AND LAW. A federal court must defer unless the state court ADJUDICATION of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the U.S. Supreme Court; or if the state conviction resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. The AEDPA also contains a number of specific rules for habeas corpus review. The act provides fo r a one-year filing deadline for non- capital habeas corpus petitions. The time starts running at the conclusion of direct review or the expiration of time for seeking such review. The law requires a certificate of appealability from a circuit judge or justice before a petitioner may appeal from denial of relief. The petitioner must make a substantial showing of denial of a constitutional right, and the certificate must be issue-specific. The AEDPA also allows federal courts to deny relief with respect to unexhausted claims but may not grant relief if the claim is unexhausted. The habeas petitioner can avoid exhaustion only if there is no available state remedy, or if the remedy is ineffective to protect the petitioner’s rights. If there is no state remedy because of a procedural default, federal review is still prohibited. The AEDPA also places restrictions on the ability of a petitioner to obtain an evidentiary hearing on a claim where the prisoner failed to develop the factual basis. Because state court fact-findings are presumed to be correct, the petitioner must rebut the PRESUMPTION by clear and convincing evidence. To obtain an eviden- tiary hearing, the petitioner must show that the claim relies on a new rule made retroactive by the U.S. Supreme Court or that the factual predicate could not have been discovered earlier through due diligence. Moreover, in all cases, the petitioner must show by clear and convinc- ing evidence that, but for the alleged error for which a hearing is sought, no reasonable factfinder would have found the petitioner guilty of the underlying offense. This is a steep hurdle for a habeas petitioner to overcome. The AEDPA also seeks to prevent the abuse of habeas corpus by limiting the number of times a prisoner may ask for a writ. A successive habeas petition may not be filed in district court unless the petitioner is authorized to do so by a three-judge panel of the Court of Appeals. The U.S. Supreme Court, in Felker, characterized this provision as an acceptable “gatekeeping” mechanism. If petitioners make a PRIMA FACIE showing that they satisfy the exceptions against successive petitions, then they may proceed; otherwise, the court must dismiss the petition. If a successive claim was presented in a prior petition, it must be dismissed; no exceptions are authorized by the AEDPA. Though the AEDPA provides some narrow exceptions to this rule, any claim must establish by clear and convinc- ing evidence that, but for the error, no reasonable factfinder would have found the petitioner guilty of the underlying of fense. In habeas petitions from death row inmates, the AEDPA imposes additional rules beyond those already described. The rules apply to states that establish certain standards for competence of counsel. For states to benefit from these additional limitations, they mu st provide a mechanism for appointment and compensation of competent counsel in state post-conviction proceedings or for appointment of counsel to handle the appeal and post- conviction remedies in a unitary proceeding. Once the state court has made an appointment of counsel, a federal court that would have jurisdiction over the case may enter a stay of execution. The stay expires if a timely petition is not filed, if the prisoner properly waives the right to pursue federal habeas relief, or if relief is denied at any stage of federal review. Once a stay vacates under any of those circumstances, a new one may not be imposed unless the petitioner can overcome the presumption against successive petitions. The AEDPA sets a time limit for habeas petition in capital cases: The petition must be filed within 180 days after final state court AFFIRMANCE on direct review. In addition, the AEDPA requires that capital habeas cases be given priority over all non-capital matters, and it imposes time limits on resolution. These include a decision by the district court within 180 days after the petition is filed, although the court may extend its time by no more than 30 days. Failure by the district court to act within the time limits may be enforced by a pet ition for writ of mandate. More importantly, a court of appeals must decide the case within 120 days GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION HABEAS CORPUS 185 after the reply BRIEF is filed; any petition for rehearing must be decided within 30 days after the petition is filed, or 30 days after any requested RESPONSIVE PLEADING is filed. If rehear- ing or rehearing EN BANC is granted, the case must be decided within 120 days after the order granting such rehearing. In addition, the time limits are applicable to all first petitions, successive petitions, and habeas cases consid- ered on remand from a court of appeals or the U.S. Supreme Court. The AEDPA has changed the legal landscape for prisoners seeking writs of habeas corpus. Petitioners must act within set deadlines, and they must attempt to place all issues in dispute before the first habeas-reviewing federal court or risk the chance of being rejected in a successive petition. A protracted habeas corpus case invoking AEDPA was that of Miller-El v. Cockrell, 537 U. S. 322 (2003). In that case, Thomas Miller-El, a Texas death-row inmate, was able to successful- ly invoke the standard of review under AEDPA to get his case remanded for a new hearing on his claim of racial bias in the jury selection (systematic exclusion of African-Americans). On remand, the Fifth CIRCUIT COURT of Appeals in 2004 held that Miller-El had failed to show, by clear and convincing evidence, that the state court’s finding of no DISCRIMINATION was erro- neous. Two years later, in Miller-El v. Dretke, 545 U.S. 231 (2005), the Supreme Court reversed the Fifth Circuit, finding that the state trial court’s interpretation of the facts (in finding no discrimination) was both unre ason- able and erroneous under AEDPA. In Munaf v. Geren, No. 06-1666; 553 U.S. ___, 128 S.Ct 2207 (2008) the U.S. Supreme Court was again faced with another case testing the scope of habeas corpus within the context of the international war on terror. In this case, the Supreme Court held that a U.S. citizen may file a petition for habeas corpus to challenge his detention by American military forces taking part in a multinational force (MNF) overseas. FURTHER READINGS Freedman, Eric M. 2001. Habeas Corpus: Rethinking the Great Writ of Liberty. New York: New York University Press. Harrington, James C., and Anne More Burnham. 1995. “Texas’s New Habeas Corpus Procedure for Death-Row Inmates: Kafkaesque—and Probably Unconstitutional.” St. Mary’s Law Journal 27 (fall). Jones, Andrew A. 1994. “Federal Habeas Corpus Evidentiary Hearings: Has the Court Deliberately Bypassed Section 2254(D)?” Wisconsin Law Review (January-February). Morse, Charles R. 1993. “Habeas Corpus and ‘Actual Innocence’: Herrera v. Collins, 113 S. Ct. 853 (1993).” Harvard Journal of Law and Public Policy 16 (autumn). Statsinger, Steven M. 2007. Habeas Corpus. 2d ed. Louisville, CO: National Institute for Trial Advocacy. HABEAS CORPUS ACT The Habeas Corpus Act was an English statute enacted in 1679 du ring the reign of King Charles II. It was subsequently amended and supplemented by enactments of Parliament that permitted, in certain cases, a person to challenge the legality of his or her imp risonment before a court that ordered the person to appear before it at a designated time so that it could render its decision. The Habeas Corpus Act served as the precursor of habeas corpus provisions found in U.S. federal and state constitutions and statutes that safeguard the guarantee of personal liberty. HABENDUM CLAUSE The portion of a deed to real property that begins with the phrase To have and to hold and that provides a description of the ownership rights of the transferee of such property. Whereas a GRANTING CLAUSE contains the words of transfer of an interest, a habendum clause defines the estate granted and declares the extent of the interest conveyed. For example, such a clause might say: “To have and to hold the premises herein granted unto the party of the second part,and to the female heirs ofthe party of the second part forever.” This particular haben- dum clause qualifiesthe estate granted by limiting its inheritability to the f emale heirs of the grantee. HABITABILITY Fitness for occupancy. The requirement that rented premises, such as a house or apartment, be reasonably fit to occupy. A warranty of habitability is an implied promise by a landlord of residential premises that such premises are fit for human habitation. It exists in a majority of states, either by statute or CASE LAW, and implies that the premises are free from any condition that is unsafe or unsanitary. A breach of this warranty would, for example, occur if none of the toilets were in working order or if the roof of a house was in total disrepair. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 186 HABEAS CORPUS ACT A warranty of habitability begins at the commencement of the tenancy and continues for its duration. HABITUAL Regular or customary; usual. A habitual drunkard, for example, is an individual who regularly becomes intoxicated as opposed to a person who drinks infrequently. A habitual criminal is a legal category that has been created by a number of state statutes by which serious penalties can be imposed on individuals who have been repeatedly convicted of a designated crime. HAGUE TRIBUNAL The Hague Tribunal was an ARBITRATION court established for the purpose of facilitating imme- diate recourse for the settlement of international disputes. As of 2009 the term is often used to refer to the International Criminal Tribunal for the Former Yugoslavia (ICTY), which has pros- ecutorial and adjudicatory powers. Both entities are commonly referred to transitionally as the Hague Tribunal, although technically speaking, they are not the same. The Hague Tribunal was establishe d by the Hague Peace Conference in 1899 to provide a permanent court accessible at all times fo r the resolution of international differences. The court was granted jurisdiction over all arbitra- tion case s, provided the parties thereto did not decide to institute a special tribunal. In addi- tion, an international bureau was established to act as a registry for the tribunal and to serve as the channel of communications with respect to the meetings of the court. The Hague Tribunal is considered perma- nent due to the fact that there is a permanent list of members from among whom the arbitrators are chosen. In 1907, at the Second Hague Conference, it was provided that of the two arbitrators selected by each of the parties, only one could be a national of the state appointing him or her. In 1993 the UNITED NATIONS (UN) Security Council passed a resolution to establish within The Hague, Netherlands, an ad hoc interna- tional 14-judge court expressly mandated to prosecute and adjudicate WAR CRIMES, GENOCIDE , and crimes against humanity committed on the territory of the former Yugoslavia. This Inter- national Criminal Tribunal for the Former Yugoslavia (ICTY) is often referred to as the Hague Tribunal. (Subsequent resolutions have increased the court to 16 members as well as a special force of AD LITEM judges.) The tribunal is composed of three chambers and an appeal chamber. Judges are elected by the UN Assem- bly but are nominated for four-year terms by their respective countries. The UN Security Council also chooses a PROSECUTOR who, in the name of the tribunal, brings indictments. The tribunal has power to impose prison sentences up to life but has no power to impose the death penalty. Sentences meted by the tribunal are served in various prison systems of several nations with whom the tribunal has made formal arrangements. The tribunal has no policing power or police force and relies for these on the mandated cooperation of various states for arrests, docu- ments, and compulsory producing of WITNESSES. It operates on an annual budget of approxi- mately $100 million. As of 2009 the tribunal had indicted more than 160 defendants (several in custody awaiting trial) and has obtained 60 convictions. It had completed 34 trials, for which 29 persons were found guilty. (Of the 29 convictions, 18 were Serbs; nine were Croats; and two were Bosnian Muslims.) One of the most notorious defendants, former Yugoslav president Slobodan Milosevic, went on trial in 2002 on 66 separate charges of grave crimes, including genocide and other atrocities allegedly involving Slovenia, Bosnia, Croatia, Serbia, and Kosovo. His trial dragged on, in part because Milosevic defended himself without legal counsel. A verdict was never reached, as Milosevic died on March 11, 2006. Other completed trials included that of General Radislav Krystic, found guilty of genocide in the Srebrenica massacres of as many as 8,000 persons; Croatian General Tihomir Blaskic, found guilty of the massacre of villagers in Ahmici; and General Stanislav Galic, allegedly involved in the killing of civilians in Sarajevo. Former President Radovan Karadzic of the Bosnian Serb Republic eluded capture until 2008. He was captured in Belgrade, Serbia, and transported to The Hague. The other most wanted DEFENDANT, Ratko Mladic, forme r com- mander of the Bosnian Serb army, remains at large as of 2009, despite a $5 million reward GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION HAGUE TRIBUNAL 187 . A breach of this warranty would, for example, occur if none of the toilets were in working order or if the roof of a house was in total disrepair. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 186. a pet ition for writ of mandate. More importantly, a court of appeals must decide the case within 120 days GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION HABEAS CORPUS 1 85 after the reply BRIEF. import of habeas corpus in state courts is also subject to change through GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION HABEAS CORPUS 183 judicial decisions and new laws. For example, in 19 95 the