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http://ssrn.com/abstract=1295491
 
 

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Deference and Doubt: The Interaction of AEDPA §§ 2254(d)(2) & (e)(1)


Justin F. Marceau


University of Denver Sturm College of Law

November 4, 2008

Tulane Law Review, Vol. 82, No. 385, 2008
U Denver Legal Studies Research Paper No. 08-23

Abstract:     
The deference owed to state findings of fact under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254, is hopelessly unclear. This Article identifies the two provisions addressing questions of factual deference, § 2254(d)(2) and (e)(1), and reviews their interaction, ultimately concluding that the treatment of (e)(1) as a superficial gloss on (d)(2) is is guided and undermines the purpose of collateral review of state convictions by federal courts. After addressing both the scope of review and standard of review problems, the Article concludes that the text, structure, and purpose of these provisions require a conclusion that only those state findings of fact that comport with minimum standards of procedural regularity should be afforded deference. Additionally, extrinsic evidence must be available for review by a federal court to permit a determination of whether a state's findings of fact may be rebutted.

Number of Pages in PDF File: 58

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Date posted: November 4, 2008  

Suggested Citation

Marceau, Justin F., Deference and Doubt: The Interaction of AEDPA §§ 2254(d)(2) & (e)(1) (November 4, 2008). Tulane Law Review, Vol. 82, No. 385, 2008; U Denver Legal Studies Research Paper No. 08-23. Available at SSRN: http://ssrn.com/abstract=1295491

Contact Information

Justin F. Marceau (Contact Author)
University of Denver Sturm College of Law ( email )
2255 E. Evans Avenue
Denver, CO 80208
United States
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