Pinholster‘s Hostility to Victims of Ineffective State Habeas Counsel

Jennifer Utrecht*

Cullen v. Pinholster foreclosed federal courts from considering new evidence when reviewing 28 U.S.C. § 2254(d) petitions for claims previously adjudicated on the merits in state court. This decision has a particularly adverse effect on petitioners whose state habeas counsel left an incomplete or undeveloped record. This Note discusses strategies for victims of ineffective state habeas counsel to avoid the hostile mandate of Pinholster. It argues that, in light of Martinez v. Ryan’s recognition of the importance of counsel in initial-review collateral proceedings, courts should be wary of dismissing claims left un- or underdeveloped by ineffective state habeas counsel. It concludes that the course of action most consistent with the principles of the Antiterrorism and Effective Death Penalty Act of 1996 and petitioners’ rights is to stay cases to give state courts the opportunity to further develop the record. This procedure allows petitioners to fully utilize the adversarial system and allows state courts the opportunity to correct any procedural errors. Should the state fail to allow for further record development, petitioners have a strong argument that the state procedures are systemically inadequate—a much-needed deterrent against hostility to federal claims.

* J.D., December 2014, University of Michigan Law School. I would like to thank my friends, the members of Volumes 113 and 114 of the Michigan Law Review, for their tremendous support while I worked on this piece. I would also like to thank my partner, Canek Acosta, for his review of early drafts and for his incredible patience with my incessant babbling about habeas corpus.

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