Federal Habeas Review of State Prisoner Claims Based on Alleged Violations of Prophylactic Rules of Constitutional Criminal Procedure: Reviving and Extending Stone v. Powell

Other prophylactic rules are directed at judges, 35 prosecutors, 36 and defense attorneys.37 Some prophylactic rules create rebuttable presumptions that the government acted unconstitutionally.38 Others create so-called "conclusive presumptions."39 Conclusive presumptions can result in the reversal of state court convictions even when the state can show that no constitutional violation occurred.40 Prophylactic rules and remedies protect values embodied in the Fourth Amendment, 41 the Fifth Amendment's Self-Incrimination 42 and Double Jeopardy 43 Clauses, the Sixth Amendment's Right to Counsel 44 35.See, e.g., North Carolina v. Pearce, 395 U.S. 711, 725-26 (1969) ("[W]henever a judge imposes a more severe sentence upon a defendant after a new trial, the [sentencing judge's] reasons for his doing so must affirmatively appear.Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding."),overruled in part by Alabama v. Smith, 490 U.S. 794 (1989); see also Michigan v. Payne, 412 U.S. 47, 52-53 (1973) (adhering to Pearce, but declining to hold it to be retroactive). 36.See, e.g., Batson v. Kentucky, 476 U.S. 79, 97-98 (1986) (shifting to the prosecution the burden of offering a neutral explanation for challenging African-American jurors upon a prima facie showing of discrimination by the defendant); Blackledge v. Perry, 417 U.S. 21, 28-29 (1974) (extending Pearce to prosecutors).37. See, e.g., Pennsylvania v. Finley, 481 U.S. 551, 554-55 (1987) (explaining that in Anders v. California, 386 U.S. 738 (1967), the Court "did not set down an independent constitutional command that all lawyers, in all proceedings, must follow," but rather "established a prophylactic framework" to vindicate the defendant's constitutional right to appellate counsel); see also Smith v. Robbins, 528 U.S. 259, 265 (2000) (characterizing the Anders rule as prophylactic and stating that "the States are free to adopt different procedures, so long as those procedures adequately safeguard a defendant's right to appellate counsel").38. See, e.g., Texas v. McCullough, 475 U.S. 134, 142 (1986) (stating that the rule in Pearce may perhaps be characterized as "'a presumption of vindictiveness, which may be overcome only by objective information . . .justifying the increased sentence'" (quoting United States v. Goodwin, 457 U.S. 368, 374 (1982))).39. Conclusive presumptions are rules of substantive law.ROGER C. PARK ET AL., EVIDENCE LAW, § 4.08 (3d ed.2011).40.Grano, supra note 13, at 145 (suggesting that "Miranda created a conclusive presumption of involuntariness when its procedures are not followed, a presumption the state is not entitled to rebut").41. See supra note 30 and accompanying text.42.See, e.g., Chavez v. Martinez, 538 U.S. 760, 770 (2003) (plurality opinion) ("[W]e have created prophylactic rules designed to safeguard the core constitutional right protected by the Self-Incrimination Clause.");New York v. Quarles, 467 U.S. 649, 654 (1984) ("The prophylactic Miranda warnings . . .are 'not themselves rights protected by the Constitution but, [are] instead measures to [e]nsure that the right against compulsory self-incrimination [is] protected.'"(first and third alterations in original) (quoting Michigan v. Tucker, 417 U.S. 433, 444 (1974))).43. See, e.g., Missouri v. Hunter, 459 U.S. 359, 368-69 (1983) (noting that two statutes that proscribe the same offense will be construed not to authorize successive punishments unless the legislature clearly expressed an intent to do so).44. See, e.g.