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Cullen v. Pinholster, USSC No. 09-1088, cert granted, 6/14/10

Issues: (1) Whether it is appropriate under § 2254 for a federal court to conclude that a state court’s rejection of a claim was unreasonable in light of facts that an applicant could have but never alleged in state court; and (2) what standard of review is applicable to claims of ineffective assistance of counsel.

Docket: 09-1088

(Links, issue-statements, courtesy SCOTUSblog.)

Irrelevant but still-interesting aside: the cert petition made a nakedly ad hominem (if that is possible when speaking of an institution) pitch, beginning with: “This Court has deemed it important to correct many such Ninth Circuit errors in the past, and should do so again in this case.” And ending with: “The Ninth Circuit once again has disregarded the limitations on federal collateral relief codified in § 2254(d)(1).” With similarly expressed sentiments in-between. Apparently it worked, or at least, didn’t impede review. In any event, the issues-statement is relatively self-explanatory. Pinholster claimed in state court that his trial attorney was ineffective for not presenting expert testimony. The state court took evidence on the question, which included testimony that the defense expert didn’t support NGI. Pinholster then launched an attack based on the theory that this expert had performed his diagnostic task incompetently. He lost, filed a 2254 habeas and after a federal evidentiary hearing which involved new witnesses not heard in state court, the district court granted relief and the 9th affirmed. So the threshold question relates to the AEDPA standard of review — whether, as the cert petition would have it, this “makes deferential review meaningless under § 2254(d)” and therefore derogates the AEDPA scheme. The Brief in Opposition has, as you might imagine, a different take, captured by its presentation of the issue: “Did trial counsel who announced at the guilt verdicts that they had ‘done nothing to prepare mitigation,’ declined an offered continuance and then worked only 6.5 hours to prepare and present one witness, whose testimony was harmful, render ineffective assistance at penalty?” Probably an interesting case if the Court gets to the merits. If.

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