Just came across this comprehensive preview of the upcoming Supreme Court case of Cullen v. Pinholster. The argument is scheduled for November 9.
On my Pending Supreme Court Cases page, I have stated the question presented on the procedural issue in a very narrow way. Here is how I have stated it: 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. In other words, it seems kind of like a procedural default question.
However, reader AS has pointed out to me that, in their brief, the State has approached it far more broadly. They seem to be arguing that a federal court cannot grant relief based on facts that were never developed in state court proceedings.
And this particular preview also seems to approach the question presented in that broad way. Initially, they state the question presented in the same way I have. But then they analyze it in a much broader way. In their analysis section, this is how they frame the question here: "the Court will consider whether, in an application for habeas corpus relief, a federal court may consider facts presented during a federal evidentiary hearing when those facts were not presented to the state courts in earlier proceedings." That is far broader than the procedural default type question above.
I am worried. Is the question really this broad? If the Court goes here and answers the question with a no, it would pretty much end the possibility of evidentiary hearings for a number of habeas petitioners. Obviously, that would not make me happy.
I'll try and write more once I have read the briefs. But this is a case that I am going to have to watch very closely.
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