In my mind, one of the greatest dangers facing habeas petitioners is the Supreme Court's decision in Carey v. Musladin, in which the Court began to constrict what can be considered "clearly established law." It's what I have often referred to as a the "troubling trend" in the wake of Musladin.
So I was very happy to read a recent article by Ursala Bentele* in the Lewis and Clark Law Review that does a fantastic job of breaking down the problems with the Supreme Court defining "clearly established law" to mean solely the holdings of prior Supreme Court cases.
*She is a professor of law at Brooklyn Law School. D/D: I am an adjunct clinical professor there.
The article is entitled, "The Not So Great Writ: Trapped in the Narrow Holdings of Supreme Court Precedents." You can get it here.
There are two parts of the article I particularly enjoyed. First, she argues that the Supreme Court has not been consistently applying this concept. She convincingly shows that, if the Supreme Court had strictly applied Musladin in ineffective assistance of counsel cases, then the results in several cases in which the Court granted relief would have gone the other way.
Second, she also points out that the concept of "clearly established law" is not new, but has been around for a long time in the qualified immunity context under 1983 claims. However, the Supreme Court has defined it differently for habeas than it has for 1983 claims. This is something I had never thought about it. It's fascinating to me. After reading it, I started thinking: While the Supreme Court is free to do something like that, it seems odd that they would essentially ignore how they have defined this concept in a separate area of law. It's almost as if they viewed it as a novel concept when they defined it in habeas cases in Williams v. Taylor. But it wasn't.
Check out the article if you get a chance.