Habeas After Pinholster

IntroductionAt first glance, the 20=11 case Cullen v. Pinholster* 1 appears to be just another in a long line of U.S. Supreme Court opinions reversing the Ninth Circuit and making it more difficult for state prisoners to obtain federal habeas relief under the Antiterrorism and Effective Death Penalty Act (AEDPA) .2 Which, of course, it is. Nor was the portion of the opinion that will be the focus of this Article-the portion limiting federal review of claims previously adjudicated at the state level to the state-court record-particularly divisive: it attracted seven votes.3 But Pinholster will have significant ramifications, not just for the habeas petitioners immediately affected, but for the resolution of fundamental questions surrounding AEDPA, the Suspension Clause, and postconviction due process.Prior to Pinholster, petitioners who were barred from adequately developing their claims in state court could do so in federal court.4 As an example, consider Albert Richards. Richards, a homeless ex-Marine with a serious heart condition and a crack habit, was convicted of murdering another homeless man in Tarrant County, Texas, by beating him with a rock; the victim died hours after the beating.5 At trial, Richards's attorney used hearsay objections to prevent the prosecution from introducing evidence that the victim had suffered another, more serious attack after the altercation with Richards, and she failed to introduce this evidence herself.6The state hearing on Richards's ineffective assistance of counsel claim consisted of a single affidavit from Richards's trial counsel, which was requested by the state; Richards, acting pro se, was not allowed to participate in the expansion of the record.7 This affidavit, which stated that trial counsel had "presented any and all exculpatory evidence available to [her]," helped convince the state court to adopt the state attorney's findings of fact and conclusions of law wholesale.8 It was enough, too, to satisfy the federal magistrate judge assigned to the case.9 It did not, however, satisfy the district court, which held a federal evidentiary hearing-a step that the court found permissible under AEDPA because Richards had not "failed to develop the factual basis" for his claim.10 As was revealed at that hearing, Richards's trial counsel prepared her affidavit "in consultation with, and with the assistance of, the [state's attorney]."11 The federal hearing also revealed enough evidence to persuade the Fifth Circuit-a court not generally known for being amenable to habeas claims12-that it was "extremely likely that, but for [trial counsel's] objectively unreasonable representation of Richards, the jury would have concluded that the later assault led to [the victim's] death."13Development of the facts in federal district court helped Richards overcome the incomplete record from the woefully inadequate state proceedings. The reasoning underlying the district court's decision to grant Richards an evidentiary hearing was endorsed by every circuit to have considered the issue.14 After Pinholster, however, that reasoning is no longer valid.15 This will make it more difficult for petitioners to obtain relief, and in light of the current controversy over whether the cost of federal habeas review of non-capital state convictions is justified by the relatively small number of successful petitions, every narrowing of that pool is particularly significant.16 Even more important, however, are the issues facing the courts in the post-Pinholster world.The problem of inadequate state fact-development proceedings, illustrated so starkly by cases like Richards's, is too great to ignore. Prior to AEDPA, federal courts deferred to state court factual findings only if specific and rigorous procedural safeguards were followed.17 Although AEDPA removed these requirements,18 some leading scholars and courts have nonetheless produced readings of AEDPA that incorporate at least a weakened procedural fairness prerequisite to deference, some of which remain viable after Pinholster,19 The Supreme Court and many of the circuits, however, have thus far avoided the issue, likely because of the role of federal fact development in preventing injustice in the face of obvious breakdowns in state process. …