Harrington’s Wake: Unanswered Questions on AEDPA’s Application to Summary Dispositions

64 Stanford Law Review 469 (2012)

This Note proposes a new solution to the problem of the Antiterrorism and Effective Death Penalty Act’s application to state court summary dispositions: When is a state court decision “unreasonable” if it provides no reasons? To answer this question, I reorient the debate away from the question of whether AEDPA applies and toward an examination of the state court’s deliberative processes in generating its decision. I distinguish between record-based claims, which are predicated on evidence contained in the trial record, and extra-record claims, which are predicated on evidence outside that record, such as a claim for ineffective assistance of counsel under Strickland v. Washington. When a state court decides a record-based claim by summary disposition, a federal court cannot assume that the state court failed to examine the evidence it had before it. However, in certain procedural contexts, the issuance of a summary disposition necessarily entails that the state court never examined extra-record evidence. Such summary dispositions of extra-record claims are unreasonable because, as the Supreme Court itself recognized in Williams v. Taylor, it is always unreasonable to apply law in the absence of fact.