Habeas and Unconstitutional Deference

The Supreme Court granted petition re: the 28 USC 2254(d) deferential standard of review in the case of Bell v Kelly (SCOTUSwiki preview here). The practical issue is, how do you get to present "new" evidence that was lost previously through your lawyer's conduct or misconduct, (or the governments sleight of hand, or procedure) when the standard of review won't allow for a fresh look at all the circumstances, but only a "reasonableness" test brushing over what is already in the record below? Petitioner took issue that the state court proceedings did not afford a full and fair hearing, sufficient to consider the element of prejudice. Finding no prejudice, but affirmative deficient performance, the courts below had denied relief.

To noone's surprise, there is a split in the circuits. Technically, it might be phrased: (1) whether the deferential 28 U.S.C. § 2254(d) standard should apply to a claim resting on evidence that the state court did not consider and was thus introduced for the first time on federal habeas.

It occurred to me reviewing the briefs (available at SCOTUSblog wiki) that the adverse position makes a good practical case in point for why the statute is facially unconstitutional: following the dictates requires no substantive review, contrary to the traditional, constitutional role of higher court review.

Do we want our higher courts rubber stamping decisions in other areas as well? Not, hopefully.

An argument schedule for cases in Nov. follows:

Mon., Nov. 3

Wyeth v. Levine (06-1249) — federal preemption of state drug labeling law

Ysursa v. Pocatello Education Association (07-869) — state legislative control of county and city payroll policies

Carcieri v. Kempthorne (07-526) — federal power to set aside land for Indian tribes’ use

Tues., Nov. 4

FCC v. Fox Television Stations (07-582) — scope of federal law on use of single or fleeting use of “indecent” words on radio and TV

U.S. v. Eurodif (07-1059) and USEC v. Eurodif (07-1078) — federal power to impose “anti-dumping” fees on imports (cases consolidated for one hour of argument)

Jimenez v. Quarterman (07-6894) — clarification of one-year filing deadline for habeas petitions

Wed., Nov. 5

Negusie v. Mukasey (07-499) — availability of asylum in U.S. for individual who formerly was a prison guard abroad

Van de Kamp v. Goldstein (07-854) — legal immunity for supervisors of prosecutors at the trial level

Mon., Nov. 10

Chambers v. U.S. (06-11206) — failure to report to jail as “violent felony” under federal armed career criminal law

U.S. v. Hayes (07-608) — ban on gun possession after conviction for domestic violence

Melendez-Diaz v. Massachusetts (07-591) — right to confront at trial a forensic expert who prepared a crime lab report offered as evidence

Tues., Nov. 11 (legal holiday; no arguments)

Wed., Nov. 12

Pleasant Grove City v. Summum (07-665) — right to display religious monument on government property, including public park

Bell v. Kelly (07-1223) — scope of federal court duty in habeas to defer to state court findings