On Tuesday, the Supreme Court will hear argument in the habeas case of Cullen v. Pinholster.
The procedural issue presented in the case is whether a federal habeas court can conclude that a state court’s rejection of a claim was unreasonable by relying on facts that an applicant could have, but never alleged in state court proceedings.
I have previously mentioned (in a prior post entitled Pinholster Preview) that the case could be a potentially dangerous one for habeas petitioners. The question presented sounds, on its face, like a strong procedural default argument. If the State was successful on such an argument, it would essentially mean that evidentiary hearings in habeas cases would be limited to an exploration of only those facts that were asserted in state court, but the state court chose not to hold a hearing on. It's an argument that could have been pretty strong for the State.
But the State messed it up really bad in their brief. As I mentioned in the prior post, the State went much broader in the brief and they seem to argue that a federal court can never grant relief on facts developed in a federal evidentiary hearing that were never considered by the state court. But the argument itself is a bit unfocused and rambles into unnecessary arguments. They also make a crazy argument that a petitioner must show entitlement to relief under 2254(d)(1)standard of review before a hearing can even be ordered.
I really don't understand what their goal was here. They took a potentially strong position and muted it with some pretty outlandish arguments.
It opened up the opportunity for petitioner to hit back strongly. Reader AS, who originally pointed out to me how broad the state had gone with their argument, pointed out this persuasive paragraph from petitioner's brief:
The State argues that “when examining whether a state-court rejection of a claim was objectively unreasonable under § 2254(d)(1), a federal court must confine itself to only those facts presented to the state court in support of the claim.” This argument is contrary to the plain text of § 2254(d)(1), renders § 2254(e)(2) (AEDPA’s evidentiary hearing provision) and the exhaustion doctrine superfluous, and is contrary to this Court’s cases interpreting § 2254(d) and (e). Similarly flawed is the State’s argument that a habeas petitioner must prove a state court decision unreasonable under § 2254(d) in order to obtain a federal evidentiary hearing. If a habeas petitioner could show without any further fact development that the state-court denial of his claim was unreasonable, what need would he have for a federal evidentiary hearing? The habeas petitioner would be entitled to relief on the state-court record.
Of course, this is not to say that the Supreme Court won't get it and realize that the issue here is one of "procedural default" and not an overarching question of how far the AEDPA went to limit habeas. But the State really did obfuscate the main issue here. Maybe that will work to petitioner's advantage.