Back in February, I had written about the case of Quezada v. Brown (previously known as Quezada v. Smith). It's a groundbreaking case in which the Second Circuit has already issued a published opinion interpreting several aspects of the second or successive 2244 statute for the very first time.
After the Second Circuit granted authorization to allow petitioner to bring a second or successive petition raising a Brady claim and a claim that the prosecution knowingly presented false evidence, petitioner made a request for discovery in the district court and the DJ granted it. Discovery in the case proceeded forward.
While the parties were engaged in discovery, Pinholster was decided. Relying upon that case, Respondent moved for reconsideration of the order granting discovery, arguing that Pinholster prevents any further discovery in a habeas corpus proceeding. Their argument: if the 2254(d)(1) analysis is restricted to the record before the state court, then there is no need for discovery in federal court.
Petitioner responded that Pinholster was not a discovery case, so it was not a change in law justifying reconsideration. In other words, Pinholster had not changed the standard for when discovery should be ordered. He also argued that there were other reasons in a habeas case for ordering discovery beyond the question of whether or not petitioner had met the 2254(d)(1) standard, including (but, of course, not limited to) whether or not petitioner could establish a miscarriage of justice to overcome a procedural default.
The district court has yet to issue an opinion on the State's reconsideration motion.
This is a really important question that has resulted in a split in the district courts around the country. But it does make me really worried. If Pinholster can be read as stifling discovery (especially in a case like Quezada where it just seems so clear from the smoke that there's a fire), it's just another way in which Pinholster has created inequity in habeas law.