Drowned Out Without Discovery: Postconviction Procedural Inadequacy in an Era of Habeas Deference

Criminal Law Practitioner, 2014

17 Pages Posted: 19 Sep 2013 Last revised: 5 Feb 2014

Rachel Cohen

Georgetown University Law Center

Krista A. Dolan

American University - Washington College of Law

Date Written: 2013

Abstract

This paper discusses discovery mechanisms in Kentucky and the existing inadequacies of those mechanisms. It further discusses the need, in light of recent Supreme Court decisions and federal statute, to expand access to discovery in the postconviction context. It considers the “fast-track” provision of the Anti-Terrorism and Effective Death Penalty Act and its failure to address a postconviction litigant’s access to discovery. It also discusses the need for adequate postconviction discovery procedures, as well as an overview of existing state law. This paper analyzes Kentucky’s Open Records Act and associated issues with obtaining records via open records procedures, and finally, it discusses potential options for implementing a mechanism providing postconviction litigants with meaningful access to discovery.

Keywords: AEDPA, habeas, discovery, postconviction, Pinholster, 154, Kentucky

Suggested Citation

Cohen, Rachel and Dolan, Krista A., Drowned Out Without Discovery: Postconviction Procedural Inadequacy in an Era of Habeas Deference (2013). Criminal Law Practitioner, 2014. Available at SSRN: https://ssrn.com/abstract=2327349

Rachel Cohen

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

Krista A. Dolan (Contact Author)

American University - Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States

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