Issue: (1) Whether the Fourth Circuit created an impermissible
end-run around Harrington v. Richter,Cullen v. Pinholster, and the Antiterrorism and Effective Death Penalty Act
by holding that a state court’s merits
determination is not an “adjudication on the
merits” whenever the state prisoner later
presents the federal court with new material
evidence and the state court decided the ineffective assistance claim without an evidentiary
hearing and (2) whether the Fourth Circuit wrongly ignored 28 U.S.C.
§ 2254(d) and Strickland v. Washington in concluding as a de novo matter,
and contrary to the Virginia Supreme Court and
Strickland, that trial counsel were ineffective for
deciding not to argue mental retardation at
On Monday at 9:30 a.m. we expect orders from the October 17 Conference. We do not expect any decisions on the merits but will report promptly on any orders. The Court's next Conference is scheduled for October 31. The November sitting begins November 3.