As I mentioned in this week's Weekly Review below, I wanted to do a separate post on a procedural issue that I have noticed in the past and that again popped up twice last week (in cases 5 & 6, Robinson and DeJesus).
The procedural issue has to do with exhaustion. In those cases, the DJ relied upon 2254(b)(2) -- a provision that was added to the statute by the AEDPA -- and addressed the merits of claims that were unexhausted.
I don't think this was right. I think those claims should have been denied as procedurally defaulted. Now, in some ways, it could be argued that this was better for petitioners since the judges were addressing the merits of the claims and not denying the petition on procedural grounds. In the abstract, I guess that's true. Kind of (I'll get into why it isn't really better for the petitioner below the fold). But, in my mind, the DJ's got the procedural analysis wrong. And wrong is wrong, so I feel like I should discuss it.
So below the fold I'll enter into the exciting world of exhaustion (including the magical land that is known as the AEDPA) . . .