Earlier this week, I had discussed how the DJ had withdrawn the grant of habeas in Harrison v. Cunningham in order to allow petitioner's trial attorney to submit an affidavit explaining why he was not ineffective.
I strenuously complained about that action, saying that Pinholster has to be read to prevent the consideration of the affidavit.
Fortunately, in the end, it didn't matter. The attorney submitted his affidavit and the DJ rejected his explanations for why he did not call the two alibi witnesses. I have uploaded the court's order: Download Harrison_v_Cunningham (you can also download it through Pacer for free).
Nevertheless, my complaints about what the court did still stand. Pinholster has to be read both ways: if a habeas court cannot consider new evidence to grant a petition, a court also should not be able to consider new evidence in order to deny a habeas petition.
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