03_wiseman.pdf - HABEAS AFTER PINHOLSTER Samuel R Wiseman...

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HABEAS AFTER PINHOLSTER Samuel R. Wiseman * Abstract: Until April 2011, every federal habeas court in America could conduct hearings and consider new evidence when reviewing a state court’s interpretation of federal law under the Antiterrorism and Effective Death Penalty Act (AEDPA). When state proceedings did not allow a peti- tioner a fair chance to develop the factual record, federal courts could, and sometimes did, fill the gap. The U.S. Supreme Court’s 2011 opinion in Cullen v. Pinholster significantly altered this landscape. By limiting federal review to the state record for claims already adjudicated in state court, Pin- holster places an enormous premium on the adequate development of the state-court record. After Pinholster , petitioners denied the ability to develop their claims in state court will seek alternative solutions. Indeed, state de- fendants have already begun to pursue some of the potential paths around Pinholster , suggesting what is to come. The resulting challenges will raise fundamental, unanswered questions about AEDPA, the Suspension Clause, and the role of due process in postconviction review. This Article explores likely paths forward, filling the gaps that Pinholster , together with the Court’s recent decisions in Boumediene v. Bush , District Attorney’s Office v. Os- borne , and Skinner v. Switzer , has created in both the literature and the ju- risprudence. Introduction At first glance, the 2011 case Cullen v. Pinholster 1 appears to be just another in a long line of U.S. Supreme Court opinions reversing the Ninth Circuit and making it more difficult for state prisoners to obtain federal habeas relief under the Antiterrorism and Effective Death Pen- alty Act (AEDPA). 2 Which, of course, it is. Nor was the portion of the * © 2012, Samuel R. Wiseman, Assistant Professor, Florida State University College of Law (J.D., Yale Law School; B.A., Yale University). A University of Tulsa College of Law Summer Research Grant supported this Article. The author thanks John Blume, Lyn Entz- eroth, Eric Freedman, Tamara Piety, and Larry Yackle for their thoughtful comments, and Cabell Fassnacht for his research assistance. 1 131 S. Ct. 1388 (2011). 2 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104- 132, 110 Stat. 1214 (codified as amended in scattered sections of 8, 18, 22, 28, and 42 U.S.C.). This may account for the dearth of immediate attention to Pinholster . There has been surprisingly little discussion in the online media. The little attention that scholars have paid to the Pinholster opinion has focused on somewhat narrower (although equally 953
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954 Boston College Law Review [Vol. 53:953 opinion that will be the focus of this Article—the portion limiting fed- eral review of claims previously adjudicated at the state level to the state-court record—particularly divisive: it attracted seven votes. 3 But Pinholster will have significant ramifications, not just for the habeas peti- tioners immediately affected, but for the resolution of fundamental questions surrounding AEDPA, the Suspension Clause, and postconvic- tion due process.
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