San Diego Law Review

Library of Congress Authority File


Document Type



The Writ of Habeas Corpus is a limit on arbitrary government. The proliferation of this writ has created a problem in the federal courts. The proliferation problem is due to the application of the Bill of Rights to the states through the Fourteenth Amendment, the changes in procedural rules involving hearing habeas petitions, and the fact that the doctrine of res judicata does not apply to habeas proceedings. Two U.S. Supreme Court cases dealt the final blow to this proliferation problem by requiring evidentiary hearings when a substantive constitutional question or § 2255 was presented. This Article proposes possible solutions to the problem of proliferation. To curb numerous original writs, Congress could pass legislation that required states courts to grant full and fair evidential hearings on the constitutional questions posed by habeas petitions. To curb numerous successive writs, the Federal Rules of Civil Procedure should be applied to habeas proceedings, requiring all grounds for relief to be ruled upon in the first hearing. The authors conclude that the proposed solutions would not only afford any person of his or her fundamental right to habeas corpus, and but would also save the courts time and expense.