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A panel of the 9th U.S. Circuit Court of Appeals has reignited the long-simmering frustration among federal judges over a 1996 law that requires them to defer to state courts even in the face of constitutional errors. With only a week’s advance notice and no briefing, two judges asked lawyers to be prepared to address during arguments whether a portion of the Antiterrorism and Effective Death Penalty Act of 1996 unconstitutionally intrudes on the separation of powers. The appeals panel ruling after a hearing last week could affect dozens of capital cases challenging the loss of their state habeas claims, as well as hundreds of noncapital cases in similar positions. The issue that has galled a number of judges over the last decade was �2254(d)(1) of the law, which limits their ability to grant habeas relief in appeals of state judgments. Federal judges had to turn a blind eye, even if they find constitutional errors, so long as the state court that upheld the conviction did not engage in an “unreasonable application of clearly established federal law.” “It is one of the most incomprehensibly worded laws in the history of Congress,” said Alan K. Chen, a constitutional law professor at the University of Denver Sturm College of Law. “The federal court can’t review even if the state did it wrong, as long as the [state court's] mistake was reasonable,” he said. Resurrecting the constitutional question was a bold move by judges Stephen Reinhardt and John Noonan because many observers considered it a dead question once the U.S. Supreme Court ruled five years ago in Williams v. Taylor, 529 U.S. 362 (2000). But the justices declined to address the constitutional issue, which leaves it technically open, said James Liebman of Columbia Law School and an expert on AEDPA. Noonan, a conservative Reagan appointee, joined Reinhardt, a liberal Carter appointee, in raising the constitutional concerns. Noonan did say the constitutional inquiry is preliminary. If the panel goes further, it will seek additional briefing from the United States as well as the parties, he said. Judge Ferdinand Fernandez, a conservative appointed by President George H.W. Bush, refused to join his colleagues’ inquiry. Reinhardt and Noonan both expressed concern during the May 11 argument that the statute violates constitutional separation of powers. Beyond that, on the merits of the case, involving repeated denial of parole to a model prisoner, Reinhardt suggested that the parole authorities have all but eliminated the line between a life sentence with parole and life without parole. In response to Deputy Attorney General Pat Whalen’s argument that the law properly limits federal review of state habeas, Reinhardt said, sharply, if a federal judge finds a constitutional rights violation “that is not what matters, what matters is whether the state court was acting unreasonably?” Noonan focused on whether the statute creates a choice-of-law problem that might limit even the Supreme Court’s ability to revisit its own rulings. The constitutional question arose in the case of Carl Merton Irons II, who has spent 21 years in prison for the murder of a neighbor. Irons, who was sentenced to 17 years-to-life, has been denied parole five times although he is a model prisoner. Irons won federal court-ordered parole after failing to convince state courts that California’s parole board denied his release based solely on the nature of his crime — something he could never change no matter how much he reformed. Irons v. Carey, No. 05-15275. Outside the courtroom, Ann McClintock, a public defender representing Irons on appeal, said of the panel’s concern for AEDPA, “They are Article III judges and this is Congress stepping on their constitutional obligations.” OTHER CIRCUITS Other circuits took up the issue shortly after the 1996 law was passed. Two watershed decisions in the 1st and 3rd circuits gave judges wide latitude to interpret state rulings, Martin v. Bissonette, 118 F.3d 871 (1st Cir. 1997), and Matteo v. Superintendent, 171 F.3d 877 (3d Cir. 1999). When the 7th Circuit stepped in with a broad holding on the reach of the AEDPA, two judges dissented in the en banc ruling, Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996). “Simply put, the [AEDPA], as amended, deprives a federal court of the right to adjudicate the case,” wrote Judge Kenneth Ripple in dissent.

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