Habeas After Pinholster

Abstract

Until April 2011, every federal habeas court in America could conduct hearings and consider new evidence when reviewing a state court’s interpretation of federal law under AEDPA. When state proceedings did not allow a petitioner a fair chance to develop the factual record, federal courts could, and sometimes did, fill the gap. The Court’s opinion in Pinholster v. Cullen significantly altered this landscape. By limiting federal review to the state record for claims already adjudicated in state court, Pinholster places an enormous premium on the adequate development of that record. In the wake of the decision, petitioners denied the ability to develop their claims in state court will seek alternative solutions. Indeed, several state defendants already have begun to pursue some of the potential paths around Pinholster, suggesting what is to come. The resulting challenges will raise fundamental, unanswered questions about AEDPA, the Suspension Clause, and the role of due process in postconviction review. This Article explores likely paths forward, filling the gaps that Pinholster, together with the Court’s recent decisions in Boumediene v. Bush, District Attorney’s Office v. Osborne, and Skinner v. Switzer, has created in both the literature and the jurisprudence.

Keywords: Habeas, Cullen, Pinholster, 2254