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December 23, 2011


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It can't possibly be floodgates. There are maybe three other defendants in the state, if that, whose convictions became final during the "gap" period and whose petitions are still working their way through the pipeline. I'm guessing that there was some kind of pressure put on the panel by their fellow judges, or else that they thought something even worse might happen on en banc review (such as a decision explicitly finding that Hafeez and Gonzalez didn't change the law) and wanted to fight another day. I guess only they know, and I really wish they'd tell us.

And I also thought "double deference" applied only to ineffective assistance claims, and that all other claims got plain old deference.

Exactly -- "the double deference owed in § 2254(d) habeas cases" is technically incorrect; rather, only a subset of 2254(d) cases get "double deference" -- those where the underlying issue requires initial deference even on direct review.

But even if technically incorrect, I think it would be sensible to read "double deference" as along the lines of "uber deference." That is consistent with some modern English usage of "double," and doing so would be a fair characterization of what the Supreme Court's 2254(d) jurisprudence has become.

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