Finding the “eternal and unremitting force” of habeas corpus: § 2254(d) and the need for de novo review

Federal circuit courts are split in determining the proper standard of review for state court decisions that lack significant, new evidence made available on appeal for federal habeas corpus claims. Specifically, federal courts have not reached consensus on whether Section 2254(d) of the Antiterrorism and Effective Death Penalty Act (AEDPA) applies to claims that rely on newly found evidence that the state court failed to consider in reaching its decision. The Tenth Circuit, in the case Wilson v. Sirmons, provides a clearer application of Section 2254(d). Namely, when a state court fails to consider new and significant evidence in reaching its decision, then Section 2254(d) simply does not apply because the claim was never “adjudicated on the merits.” Instead, de novo review is the proper standard of review for these unique types of federal habeas claims. The Wilson decision arrives at an important time. The Supreme Court in its 2008-09 term granted certiorari in Bell v. Kelly to address the circuit split on this very issue. Although the case was ultimately dismissed as improvidently granted, the Supreme Court is still looking for an opportunity to address this circuit split - as evident by another case this term, Cone v. Bell, that had the Court again raising the possibility that the reach of Section 2254(d)(1) might not be as broad as many circuits believe. Even the Tenth Circuit recently granted rehearing en banc in Wilson because of the importance of this issue. This paper examines how federal courts have misapplied Section 2254(d), and argues that federal courts should return to the procedural requirements of granting a “full and fair” hearing for federal habeas appeals. Moreover, this paper argues that the courts should follow the Tenth Circuit’s Wilson decision and apply de novo review when significant, new evidence is presented in federal court. This paper can be found in the forthcoming Denver University Law Review annual Tenth Circuit Survey.
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