PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHN MARVIN BOOTH; WESLEY
EUGENE BAKER; KENNETH LLOYD
COLLINS; TYRONE DELANO GILLIAM,
JR.; STEVEN HOWARD OKEN,
Plaintiffs-Appellees,

v.
                                                                   No. 96-7597
STATE OF MARYLAND; PARRIS N.
GLENDENING, Governor of Maryland;
J. JOSEPH CURRAN, JR., Attorney
General of Maryland; EUGENE M.
NUTH, Warden,
Defendants-Appellants.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CA-96-2766-JFM)

Argued: March 3, 1997

Decided: April 21, 1997

Before WILKINSON, Chief Judge, HALL, Circuit Judge, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Vacated and remanded by published opinion. Chief Judge Wilkinson
wrote the opinion, in which Judge Hall and Senior Judge Butzner
joined.

_________________________________________________________________
COUNSEL

ARGUED: Gwynn X. Kinsey, Jr., Assistant Attorney General, Crim-
inal Appeals Division, OFFICE OF THE ATTORNEY GENERAL,
Baltimore, Maryland, for Appellants. Peter Edward Keith, GAL-
LAGHER, EVELIUS & JONES, Baltimore, Maryland; Gary Wilmer
Christopher, Assistant Federal Public Defender, Baltimore, Maryland,
for Appellees. ON BRIEF: J. Joseph Curran, Jr., Attorney General
of Maryland, Criminal Appeals Division, OFFICE OF THE ATTOR-
NEY GENERAL, Baltimore, Maryland, for Appellants. Nevett
Steele, Jr., Michael J. Gentile, Towson, Maryland, for Appellee
Booth; William B. Purpura, Baltimore, Maryland, for Appellee Baker;
Fred Warren Bennett, CATHOLIC UNIVERSITY LAW SCHOOL,
Washington, D.C., for Appellee Oken; Charles G. Bernstein, Balti-
more, Maryland; Neil Ian Jacobs, Rockville, Maryland, for Appellee
Collins; Jerome H. Nickerson, Bel Air, Maryland, for Appellee Gil-
liam.

_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

Five death row prisoners sued the State of Maryland, its Governor,
Attorney General, and a state prison warden under 42 U.S.C. § 1983.
The prisoners sought a declaratory judgment that Maryland was not
entitled to the benefits of the new chapter 154 of the federal habeas
corpus statute, 28 U.S.C. §§ 2261-2266, and an injunction prohibiting
Maryland from raising chapter 154 as a defense in the inmates' pro-
spective federal habeas corpus cases. After denying the defendants
Eleventh Amendment immunity, the district court granted plaintiffs
the requested relief. Booth v. Maryland, 940 F. Supp. 849 (D. Md.
1996). Finding that relief in this civil action would abridge the basic
principles of the Eleventh Amendment, we vacate the judgment of the
district court and remand with instructions to dismiss.

I.

The Anti-Terrorism and Effective Death Penalty Act of 1996
(AEDPA) brought a number of changes to the federal habeas corpus

                    2
statute. The new chapter 154, entitled "Special Habeas Corpus Proce-
dures in Capital Cases" creates incentives for state governments in
capital cases. States that meet certain requirements for the appoint-
ment and compensation of counsel in state post-conviction proceed-
ings are known as "opt-in" states and are entitled to prompter and
more deferential review in federal habeas proceedings. 28 U.S.C.
§§ 2261-2266. Specifically, prisoners filing federal habeas suits in
"opt-in" states must file their petitions within 180 days after the final
state court affirmance of the conviction and sentence on direct review.
28 U.S.C. § 2263(a). In an opt-in state, the federal habeas court must,
for example, consider the case before all noncapital matters,
§ 2266(a), and must enter a final judgment within 180 days from the
filing date, § 2266(b)(1)(A). As a general matter, the court may not
consider claims that were not raised and decided on the merits in state
courts, § 2264, and it may not allow amendments to the habeas peti-
tion after an answer to the petition has been filed,§ 2266(b)(3)(B).

All five plaintiffs in this case have previously filed state petitions
for post-conviction review that have been reviewed by the Maryland
Court of Appeals. One of the five inmates had filed a federal habeas
petition at the time this action was brought, and the other four planned
to do so after their state remedies were exhausted. The prisoners
brought this action seeking a declaratory judgment that the State of
Maryland had failed to comply with the requirements of chapter 154
and an injunction forbidding Maryland from invoking chapter 154
until the state did comply.

The district court agreed with the inmates. After finding that Mary-
land and its officials were not entitled to Eleventh Amendment immu-
nity, the court ruled that Maryland had failed to comply with three of
the requirements of chapter 154. Specifically, the court held that
Maryland did not have codified "competency standards" for appoint-
ment of post-conviction counsel, 28 U.S.C. § 2261(b), that the com-
pensation rates for these attorneys did not satisfy the statute, id., and
that Maryland's policy of disallowing payment for computerized legal
research and photocopying expenses violated chapter 154's require-
ment of reimbursement of "reasonable litigation expenses," id. The
court therefore declared that Maryland was "not presently entitled to
invoke the benefits of Chapter 154" and enjoined the state from

                     3
attempting to invoke the new standards in any future federal habeas
actions brought by the five inmates. Booth, 940 F. Supp. at 855.

Maryland now appeals and argues that the Eleventh Amendment
bars this lawsuit.

II.

We begin with a brief reiteration of the basic history of the Elev-
enth Amendment. At the time the Constitution was drafted,

          [t]he right of the Federal Judiciary to summon a State as
          defendant and to adjudicate its rights and liabilities had been
          the subject of deep apprehension and active debate .. . but
          the existence of any such right had been disclaimed by many
          of the most eminent advocates of the new Federal Govern-
          ment, and it was largely owing to their successful dissipa-
          tion of the fear of the existence of such Federal power that
          the Constitution was finally adopted. 1 C. Warren, The
          Supreme Court in United States History 91 (rev. ed.
          1937)(quoted with approval in Edelman v. Jordan , 415 U.S.
          651, 660 (1974)).

In the first few years of its existence, the Supreme Court nonethe-
less heard numerous suits against states. In the most famous of these,
Chisholm v. Georgia, 2 Dall. 419 (1793), the Court held that a state
was susceptible to suit by a citizen of another state or of a foreign
country. The ruling caused "such a shock of surprise that the Eleventh
Amendment was at once proposed and adopted." Principality of
Monaco v. Mississippi, 292 U.S. 313, 325 (1934). The amendment
retains a continuing vitality. The Supreme Court noted that "[f]or over
a century we have reaffirmed that federal jurisdiction over suits
against unconsenting States `was not contemplated by the Constitu-
tion when establishing the judicial power of the United States.'"
Seminole Tribe v. Florida, 116 S.Ct. 1114, 1122 (1996) (quoting
Hans v. Louisiana, 134 U.S. 1, 15 (1890)).

Unchanged since its passage in 1798, the Eleventh Amendment
limits the jurisdiction of federal courts over state defendants:

                    4
          The judicial power of the United States shall not be con-
          strued to extend to any suit in law or equity, commenced or
          prosecuted against one of the United States by Citizens of
          another State, or by Citizens or Subjects of any Foreign
          State. U.S. Const. amend. XI.

Although the Amendment is silent as to suits brought against a
state by it own citizens, the Supreme Court "has consistently held that
an unconsenting State is immune from suits brought in federal courts
by her own citizens as well as by citizens of another State." Edelman,
415 U.S. at 662-63 (citing Hans, 134 U.S. 1 and numerous other cases).1
Eleventh Amendment immunity also extends to state officials when
they are merely the nominal defendants and "the state is the real, sub-
stantial party in interest." Ford Motor Co. v. Department of Treasury,
323 U.S. 459, 464 (1945); see also McConnell v. Adams, 829 F.2d
1319, 1329 (4th Cir. 1987) (judgment against state officials acting in
official capacity contrary to Eleventh Amendment).

Under settled precedent, then, the Eleventh Amendment protects
the sovereign rights of states from abridgement by the federal judi-
ciary. Thus, the State of Maryland and the named officials are not
subject to this suit unless the plaintiffs can demonstrate that this case
falls within one of the exceptions to Eleventh Amendment immunity.

III.

The defendants assert the Eleventh Amendment as an absolute bar
to this action. The plaintiff inmates, on the other hand, argue that the
defendants' Eleventh Amendment defense fails on three grounds: (1)
the case concerns a continuing violation of federal law and therefore
_________________________________________________________________
1 Some Justices distinguish between Eleventh Amendment immunity
(applicable when a state is sued by citizens of a foreign state) and sover-
eign immunity (applicable when a state is sued by its own citizens). See,
e.g., Edelman, 415 U.S. at 687 (Brennan, J. dissenting); Seminole Tribe,
116 S.Ct. at 1133-1145 (Stevens, J. dissenting). However, since Hans a
majority of the Court has come to regard sovereign immunity as implicit
in the Eleventh Amendment. See, e.g. , Florida Dep't of State v. Treasure
Salvors, Inc., 458 U.S. 670, 683 n.17 (1982); Edelman, 415 U.S. at 662-
63.

                     5
falls under the exception to Eleventh Amendment immunity invoked
in Ex Parte Young, 209 U.S. 123 (1908), (2) the action involves
habeas corpus, a subject which is excepted from Eleventh Amend-
ment immunity, and (3) Maryland has implicitly waived the immunity
by affirmatively threatening to invoke chapter 154 in future habeas
cases. We address each of these grounds in turn.

A.

The prisoners first argue that the doctrine of Ex Parte Young
defeats the state defendants' claim of immunity. In Ex Parte Young,
the Supreme Court ruled that the Eleventh Amendment does not bar
suits seeking to enjoin state officials from committing continuing vio-
lations of federal law. 209 U.S. at 159-160. The inmates contend that
because their action is for injunctive and declaratory relief rather than
monetary damages, it falls squarely within the Ex Parte Young excep-
tion to Eleventh Amendment immunity.

Ex Parte Young represents a limited exception to Eleventh Amend-
ment immunity, applicable only when plaintiffs allege an ongoing
violation of federal law. The Supreme Court has not shown a propen-
sity to relax this requirement; to the contrary, its cases analyzing the
Ex Parte Young doctrine consistently require a"continuing violation
of federal law." See, e.g., Will v. Michigan Dep't of State Police, 491
U.S. 58, 89 (1989); Papasan v. Allain, 478 U.S. 265, 277-278 (1986);
Green v. Mansour, 474 U.S. 64, 68 (1985). In Green v. Mansour, for
example, the Court ruled that any possible violation of federal law
ended when the relevant federal statute was changed, so Ex Parte
Young could not apply and the Eleventh Amendment barred the
action. 474 U.S. 64. As recently as last year, the Court reaffirmed the
"continuing violation of federal law" requirement of the Ex Parte
Young decision. Seminole Tribe, 116 S.Ct. at 1132.

The reasons for limiting the Ex Parte Young exception to Eleventh
Amendment immunity are not difficult to discern. Requiring an ongo-
ing violation of federal law sets a minimum threshold for abrogating
a state's constitutional immunity. To have a state sued in federal court
without even a contention of an ongoing violation of federal law
would only multiply "the indignity of subjecting a State to the coer-
cive process of judicial tribunals at the instance of private parties."

                     6
Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc.,
506 U.S. 139, 146 (1993) (internal quotation marks omitted). Because
the Eleventh Amendment embodies the "integrity retained by each
State in our federal system," its command cannot be disregarded.
Hess v. Port Authority Trans-Hudson Co., 513 U.S. 30, 39 (1994). In
this case, the sovereignty concerns protected by the Eleventh Amend-
ment are implicated by both forms of equitable relief awarded. A dec-
laration of the rights and legal relations of the parties would breach
the Eleventh Amendment if there had been no colorable allegation
that the state has violated federal law. And, enjoining a state from
asserting a particular defense in some future federal action would be
precisely the sort of inroad on state sovereignty that the Eleventh
Amendment forbids.

The plaintiffs' Ex Parte Young argument in this case founders on
a basic point -- they have shown no continuing violation of federal
law. In fact, plaintiffs can demonstrate no violation of federal law at
all -- past, present, or potential. They allege only that Maryland has
announced an intention to invoke a federal statutory defense in future
habeas corpus actions. If, for example, a prisoner files a habeas cor-
pus petition after chapter 154's six-month deadline has expired,
Maryland is free to move for dismissal based on lack of timeliness.
See 28 U.S.C. § 2263(a). In response, the prisoner is free to argue that
a one-year rather than a six-month deadline applies because Maryland
is not in compliance with the requirements of chapter 154. See 28
U.S.C. § 2244(d)(1) (one-year filing deadline for all federal habeas
corpus petitions). Whether or not Maryland successfully invokes the
defense, the state cannot have violated federal law merely by raising
it. To hold otherwise would ignore the limits of the Ex Parte Young
exception. Seminole Tribe, 116 S.Ct. at 1132.

Nor is the requirement of a continuing violation of federal law sat-
isfied if a state is found to be in noncompliance with chapter 154. The
chapter is a voluntary opt-in provision. Even if a state decides, for its
own reasons, not to opt in, the state has violated no federal rights.
Indeed, a state's decision not to take advantage of optional incentives
afforded by a federal statute does no damage to values embodied in
the Supremacy Clause. And it was, of course, to protect the suprem-
acy of federal law that the exception to Eleventh Amendment immu-

                     7
nity in Ex Parte Young was created. See Pennhurst State School &
Hosp. v. Halderman, 465 U.S. 89, 102 (1984).

The inmates attempt to place this case within the Ex Parte Young
rubric by claiming that the announcement of the state's intent to
invoke chapter 154 is itself unlawful. The possibility of a successful
chapter 154 defense requires prisoners to file their federal habeas peti-
tions within the six-month deadline imposed by the new law, rather
than allowing them a full year of preparation. The inmates argue that
their rights are thereby violated, and that Maryland has violated fed-
eral law merely by threatening to invoke the benefits of chapter 154
without first satisfying its requirements.

We disagree. A party bringing suit must always take the possibility
of a successful affirmative defense into account in its litigation strat-
egy. In many different actions, litigants must file a case and plot a
strategy without clear foreknowledge of how the case will unfold. To
file earlier rather than later is a decision many a prudent litigant will
make. A plaintiff bringing suit under the Federal Tort Claims Act
("FTCA"), for example, was for many years uncertain as to whether
its two-year statute of limitations, 28 U.S.C. § 2401(b), began to run
at the time he discovered his injury, at the time he discovered the
cause of his injury, at the time he should have known of both the
injury and cause, or at the time he became aware that the injury was
negligently inflicted. See United States v. Kubrick, 444 U.S. 111
(1979) (ruling that statute of limitations under FTCA begins running
when plaintiff knows both the existence and cause of his injury). The
litigant nonetheless was required to comply with the two-year dead-
line or face a potential statute of limitations defense. Plaintiffs in such
actions, just like plaintiffs filing a federal habeas corpus petition, are
required to make litigation decisions in light of possible defenses.
That does not, however, make a state's announcement of its intent to
raise a chapter 154 limitations defense improper or unlawful.

Plaintiffs can, of course, avail themselves of an opportunity to
decide the applicability of chapter 154 in a proceeding which is less
damaging to state sovereignty. They need only raise their contention
during federal habeas corpus proceedings. In order to ascertain what
procedures will govern federal review of a capital case, a federal court
may be required to determine whether the state has satisfied the

                     8
requirements of chapter 154. This is true even where the prisoner
meets the earlier filing deadline because chapter 154 implements sev-
eral other changes. Where it applies, for example, chapter 154
requires a federal district court to: (1) review only claims that were
raised before a state court, 28 U.S.C. § 2264, (2) consider the case
before all noncapital matters, § 2266(a), and (3) enter a final judg-
ment within six months from the filing date, § 2266(b). Hence, indi-
vidual habeas actions are a natural and adequate forum in which to
challenge chapter 154's applicability. These rulings, like any other,
would be subject to appeal.

Indeed, many plaintiffs have sought and obtained adjudication of
a state's eligibility to invoke chapter 154 in precisely this manner. In
Hamblin v. Anderson, 947 F. Supp. 1179 (N.D. Ohio 1996), to take
but one example, the prisoner sought a writ of habeas corpus chal-
lenging his conviction and death sentence. The defendant warden
filed a motion for a finding that chapter 154 applied to the petitioner's
case. The district court found that Ohio did not satisfy the require-
ments of chapter 154, so its provisions would not apply to Hamblin's
petition. Many other federal courts have similarly decided the applica-
bility of chapter 154 in the context of a habeas corpus action. See,
e.g., Bennett v. Angelone, 92 F.3d 1336 (4th Cir. 1996); Mata v.
Johnson, 99 F.3d 1261 (5th Cir. 1996), rev'd in part on other
grounds, 105 F.3d 209 (1997); Breard v. Netherland, 949 F. Supp.
1255 (E.D. Va. 1996); Wright v. Angelone, 944 F. Supp. 460 (E.D.
Va. 1996); Satcher v. Netherland, 944 F. Supp. 1222 (E.D. Va. 1996);
Zuern v. Tate, 938 F. Supp. 468 (S.D. Ohio 1996).

In sum, this action fails to satisfy the requirements of Ex Parte
Young. Neither the invocation of a chapter 154 defense, nor the
announced intention to assert such a defense, nor the failure to com-
ply with chapter 154 constitutes a continuing violation of federal law.
Under these circumstances, we find no authorization in Ex Parte
Young for abrogating Maryland's Eleventh Amendment immunity.
Since injunctive relief is not available in this case under Ex Parte
Young, declaratory relief is not available either. Green, 474 U.S. at
74.

B.

Plaintiffs next claim that this case falls within the habeas corpus
exception to Eleventh Amendment immunity. It is true that the Elev-

                    9
enth Amendment offers no bar to a habeas corpus petition against a
state which is holding a prisoner in violation of the Constitution or
laws of the United States. From the earliest times, Eleventh Amend-
ment immunity has not prevented actions seeking a writ of habeas
corpus, whether the defendant be the sovereign itself, or some agent
of the sovereign. Fitzpatrick v. Bitzer, 427 U.S. 445, 455-56 (1976);
Frank v. Mangum, 237 U.S. 309, 331 (1915); Ex Parte Royall, 117
U.S. 241, 249 (1886); see also United States v. Hendricks, 213 F.2d
922, 926 (3d Cir. 1954). More recently, the Court noted in Seminole
Tribe that in enacting the habeas corpus statute, 28 U.S.C. § 2254,
Congress "implicitly authorized suit under Ex Parte Young." 116
S.Ct. at 1133 n.17. Indeed, a petition for a writ of habeas corpus falls
squarely under Ex Parte Young -- it is an action brought against state
officials to prevent the continued detention of a prisoner pursuant to
an unlawful conviction or sentence.

This action, however, involves no petition for habeas corpus. The
prisoners do not challenge their convictions or sentences. They do not
complain in this action that the State of Maryland or its officials are
violating their rights by holding them in custody in violation of the
Constitution or laws of the United States. They do not request any
relief within the scope of the habeas corpus statute. By their own
admission the plaintiffs brought this suit with the specific objective
of obtaining a ruling apart from any actual federal habeas petitions.
While the controversy "involves" the federal habeas corpus statute, it
is not an action for a writ of habeas corpus. The prisoners cannot,
therefore, invoke the habeas corpus exception to Eleventh Amend-
ment immunity.

C.

Finally, Maryland's announced intention to invoke chapter 154
does not constitute a waiver of Eleventh Amendment immunity on the
part of the state. This waiver theory fails under Atascadero State Hos-
pital v. Scanlon, 473 U.S. 234 (1985). There the Court explained that
"[t]he test for determining whether a State has waived its immunity
from federal-court jurisdiction is a stringent one." Id. at 241. A waiver
can be effected in one of two ways. First, a state may directly and
affirmatively waive its Eleventh Amendment immunity in a state stat-
ute or constitutional provision, as long as the provision explicitly

                     10
"specif[ies] the State's intention to subject itself to suit in federal
court." Id. (emphasis in original). Second, a state may constructively
waive its immunity by voluntarily participating in federal programs
when Congress expresses "a clear intent to condition participation in
the programs . . . on a State's consent to waive its constitutional
immunity." Id. at 247.

Neither theory of waiver applies to this case. The prisoners cite no
Maryland statute or constitutional provision waiving Maryland's
immunity. Likewise, the inmates point to no element of the old fed-
eral habeas statute or the AEDPA amendments which would condi-
tion state "participation" on the state's consent to be subject to a non-
habeas civil suit. In fact, the AEDPA is replete with provisions which
evidence an intent to increase federal judicial deference toward the
states. See, e.g., 28 U.S.C. § 2254(d)(1) (no relief for claims decided
in state court unless decision was contrary to clearly established fed-
eral law); 28 U.S.C. § 2254(e)(1) (factual determination of state court
presumed correct unless rebutted by clear and convincing evidence);
28 U.S.C. § 2264(a) (in capital cases in complying states, federal
court can consider only claims that were raised and decided on merits
in state court). To find that the AEDPA implicitly subjected states to
increased exposure to lawsuits would be to stand the statute on its
head, as well as to flout the criteria set forth in Atascadero. In short,
no express or implied waiver occurred in this case. 2
_________________________________________________________________

2 Plaintiffs contend that the Attorney General of Maryland somehow
expressly waived immunity in this case. This court has held, however,
that the Attorney General of Maryland lacks the authority to waive Elev-
enth Amendment immunity on behalf of the state and its officials.
Linkenhoker v. Weinberger, 529 F.2d 51, 53-54 (4th Cir. 1975). More-
over, even if he did have the authority to waive immunity, nothing in his
conduct or that of any other state official would support a waiver. To the
contrary, the state and its officials have argued in the initial pleading in
this case, and in every subsequent pleading, that the action is barred by
the Eleventh Amendment. Finally, because the Eleventh Amendment is
a jurisdictional bar, it can be considered even if not raised in district
court. Edelman, 415 U.S. at 678.

                     11
IV.

Plaintiffs have repeatedly urged us to rule on their contentions in
this consolidated action rather than in individual habeas petitions
because of considerations of judicial economy and convenience. They
maintain that if "five judges of the lower court would each have
power and jurisdiction during the five inmates' individual habeas pro-
ceedings to consider whether Maryland satisfies the requirements of
Chapter 154, then as a matter of judicial economy and power this
question can surely be addressed by a single judge in a single pro-
ceeding." Appellees' Brief at 15. They further contend that this
approach is "appropriate, cost-effective and consistent with the intent
of Congress to control the expense of litigation." Id. at 22.

The Constitution, however, is not simply a document of judicial
economy and convenience. It might, of course, be more convenient
for government to ignore the requirements of the warrant clause, or
the right against self-incrimination, or the dictates of due process, yet
it goes without saying that our founding charter does not permit such
short-cuts. The same document that guarantees rights to citizens
imbues the states with attributes of sovereignty. Here Maryland has
interposed that sovereignty against the efficiencies embodied in con-
solidated proceedings and in the Declaratory Judgment Act. This it
has every right to do. "Policy, no matter how compelling, is insuffi-
cient, standing alone, to waive [sovereign] immunity." Library of
Congress v. Shaw, 478 U.S. 310, 321 (1986). Because the Eleventh
Amendment protects state sovereignty against this form of suit in fed-
eral court, we cannot now provide the answers to the questions raised
herein.

V.

We thus vacate the judgment of the district court and remand with
instructions to dismiss. In view of our disposition, we have no occa-
sion to visit the merits of the district court's rulings.

VACATED AND REMANDED

                     12
