In its order list yesterday, the Supreme Court issued a GVR in a habeas case, Ryan v. Detrich, pursuant to Cullen v. Pinholster.
I looked up the lower court's decision in Detrich, and there is no surprise as to why it happened. In that case, the Ninth Circuit considered evidence in support of an IAC claim -- a psychological report establishing a mitigating factor relevant to whether the death penalty should be imposed -- that the state court refused to consider, even though petitioner had diligently presented it to the state courts.
Last week, I covered the problems with this, namely giving the state courts preclusive authority to determine the facts that can be considered in analyzing a constitutional claim. As I said last week, this current gap in the AEDPA renders the system completely unfair. To steal the language from the other nightmarish habeas opinion from this term, Richter, all fairminded people would agree that this gap in the habeas statute is inequitable. This gap needs to be addressed.