Federal habeas corpus challenges to state criminal convictions grew significantly between 1948 and 1996 when traditional de novo review was coupled with an expanding list of federal constitutional protections the Supreme Court made applicable to the states.

The landscape changed dramatically in 1996 when Congress amended 28 U.S.C. § 2254 with the Anti-Terrorism and Effective Death Penalty Act. Old and new procedural barriers to habeas review were codified. Merits review of state court decisions became highly deferential.

In a series of recent decisions discussed in this article, most notably Harrington v. Richter, 131 S. Ct. 770 (2011), the Court strongly expressed its frustration with the failure of lower courts to heed Congress' mandate. Federal courthouse doors are now closed to all but the rare case where there “is no possibility for fair-minded disagreement” the state court acted unreasonably (not just erroneously) in deciding the merits. Review becomes “doubly deferential” when the claim is one where deference is already owed in state court; most notably, challenges to the effectiveness of counsel and to the sufficiency of the evidence. Deference is owed even when the state court issues a summary merits decision without opinion.

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