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Habeas – Evidentiary Hearing – Federal Review Limited to State Court Record

Cullen v. Scott Lynn Pinholster, USSC No. 09-1088, 4/4/11

We first consider the scope of the record for a §2254(d)(1) inquiry. The State argues that review is limited to the record that was before the state court that adjudicated the claim on the merits. Pinholster contends that evidence presented to the federal habeas court may also be considered. We agree with the State.

We now hold that review under §2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits. Section 2254(d)(1) refers, in the past tense, to a state-court adjudication that “resulted in” a decision that was contrary to, or “involved” an unreasonable application of, established law. This backward looking language requires an examination of the state court decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time–i.e., the record before the state court.

Pinholster lost an IAC claim in state court, then filed a 2254 habeas petition. The federal court ordered an hearing to take additional evidence on the claim, following which it held that in light of the new evidence, the state court decision unreasonably applied clearly established federal law, § 2254(d)(1). As the blockquote above indicates, the Court rejects that approach; § 2254(d)(1) simply doesn’t allow expansion of the record with new evidence. So just when can you get an evidentiary hearing on a 2254 petition?

Section 2254(e)(2) continues to have force where §2254(d)(1) does not bar federal habeas relief. For example, not all federal habeas claims by state prisoners fall within the scope of §2254(d), which applies only to claims “adjudicated on the merits in State court proceedings.” At a minimum, therefore, §2254(e)(2) still restricts the discretion of federal habeas courts to consider new evidence when deciding claims that were not adjudicated on the merits in state court. See, e.g., Michael Williams, 529 U. S., at 427–429.9

Although state prisoners may sometimes submit new evidence in federal court, AEDPA’s statutory scheme is designed to strongly discourage them from doing so. Provisions like §§2254(d)(1) and (e)(2) ensure that “[f]ederal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings.” Id., at 437; see also Richter, 562 U. S., at ___ (slip op., at 13) (“Section 2254(d) is part of the basic structure of federal habeas jurisdiction, designed to confirm that state courts are the principal forum for asserting constitutional challenges to state convictions”); Wainwright v. Sykes, 433 U. S. 72, 90 (1977) (“[T]he state trial on the merits [should be] the ‘main event,’ so to speak, rather than a ‘tryout on the road’ for what will later be the determinative federal habeas hearing”).10

Habeas Review – IAC Claim

Given the highly deferential nature of review (doubly so: AEDPA in the 1st place, presumption of counsel’s competent performance in the 2nd), Pinholster can’t show that the state court’s denial of relief was an unreasonable application of established federal law. More particularly, “counsel confronted a challenging penalty phase with an unsympathetic client, which limited their feasible mitigation strategies.” Within that context, counsel derived a reasonable strategy, after investigating potential mitigation evidence, that focused on “family sympathy” (testimony of Pinholster’s mother) at the penalty phase of his capital case.

The Court of Appeals misapplied Strickland and overlooked “the constitutionally protected independence of counsel and . . . the wide latitude counsel must have in making tactical decisions.” 466 U. S., at 689. Beyond the general requirement of reasonableness, “specific guidelines are not appropriate.” Id., at 688. “No particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions . . . .” Id., at 688–689. Strickland itself rejected the notion that the same investigation will be required in every case. Id., at 691 (“[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary” (emphasis added)). It is “[r]are” that constitutionally competent representation will require “any one technique or approach.” Richter, 562 U. S., at ___ (slip op., at 17). The Court of Appeals erred in attributing strict rules to this Court’s recent case law.17

Nor did the Court of Appeals properly apply the strong presumption of competence that Strickland mandates. …

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