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April 26, 2009


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How would it work for a habeas court to "defer" to a state court decision lacking an adjudication on the merits? Is the idea that the habeas court would consider whether a hypothetical denial of the petition on the merits would necesarily have been an unreasonable application of controlling SCt precedent?

That's a good question. Although I have phrased it as "deference," I guess that is not completely accurate as technically there would not be deference. I think it would be more about the petitioner having to show that a denial of the claim would necessarily have been either an unreasonable application of, or contrary to, Supreme Court precedent. It really is more about the burden placed on the petitioner, as opposed to comity with the state courts. That, of course, is the real goal of the AEDPA.

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