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Abstract

Part I gives background on AEDPA, points out what Section 2254(d)(1) does, explains why AEDPA’s standard of review is problematic, and introduces the Suspension Clause challenge. Part II describes the writ of habeas corpus at common law and observes that there are two versions of habeas’s history, a narrow version and a functionalist version. The functionalist approach is essential to a strong attack on AEDPA. Part III introduces the age-old debate over the writ’s constitutional scope. To formulate the best Suspension Clause challenge to Section 2254(d)(1), a challenger should argue that: (1) the Suspension Clause impliedly guarantees a right, or entitlement, to the writ of habeas corpus that Congress cannot take away; (2) that right includes meaningful review of a petitioner’s federal claims; and (3) that right also includes some federal review.

Part IV argues that the Court’s interpretation of Section 2254(d)(1) does not merely make it more difficult for petitioners to successfully obtain the writ; it builds a wall that renders petitioners voiceless, courts powerless, and justice a nullity. This Part focuses on three pieces of AEDPA’s standard of review and argues that each of these pieces adds significant barriers to substantive postconviction review. Collectively, they form the suspension wall: (1) all claims “adjudicated on the merits” in state court receive deference; (2) that deference requires petitioners to show that the state court decision was “contrary to or an unreasonable application of” federal law, perhaps the most deferential standard in all of Supreme Court jurisprudence; (3) the federal law applied in the state court must be “clearly established, as determined by the Supreme Court of the United States.” Part V then discusses the early Suspension Clause challenges in the circuit courts and distinguishes the reasoning in those cases from AEDPA’s current suspension wall.

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