"Richter's Scale: Proving Unreasonableness Under AEDPA"

The title of this post is the title of this new paper authored by Josiah Rutledge now available via SSRN. Here is its abstract:

No provision is more central to the administration of the “Great Writ” of habeas corpus than Section 2254(d) of the Antiterrorism and Effective Death Penalty Act, which limits a federal court’s ability to grant relief on a claim already adjudicated by a state court.  Before granting relief, the statute provides, a federal court must decide that its state counterpart acted unreasonably.  But that only raises the same questions that have plagued lawyers for centuries. What does it mean to be unreasonable? How can one prove unreasonableness?  Two of the landmark decisions applying the statute — Harrington v. Richter and Wilson v. Sellers — have addressed these questions in contexts where state courts did not explain their reasoning.

In their wake, however, significant confusion has arisen about how reasonableness can be determined when a state court does explain itself.  To make matters worse, the Supreme Court’s cases confronting such circumstances laid down seemingly irreconcilable rules.  As a result, at least three separate approaches have emerged in the lower courts.  In this Article, I argue that “unreasonableness” consists in committing a “qualifying error,” and that a prisoner can surmount Section 2254(d)’s barrier to relief by proving such an error either directly or through circumstantial evidence.  This approach not only harmonizes the tension between several lines of habeas cases but also gives each a much stronger footing in the text of the statute and the broader structure of federal habeas corpus.