Is the Certiorari Standard Lower for Cases in which Habeas Relief Has Been Granted Under AEDPA? Last week, in Brown v. Payton, no. 03-1039 (Mar. 22, 2005), the Supreme Court reversed the Ninth Circuit grant of habeas relief, essentially because the Ninth Circuit's application of AEDPA wasn't sufficiently deferential to the state court decision. I've searched the opinion for what made the case cert-worthy, but I'm somewhat at a loss. The opinion doesn't seem to announce a new rule or resolve a conflict. The Court appears to merely be correcting what the Court sees as a mis-application of AEDPA and Williams v. Taylor, 529 U. S. 362 (2000).

Rule 10 of the Supreme Court rules states that "A petition for a writ of certiorari is rarely granted when the asserted error consists of ... the misapplication of a properly stated rule of law."  But that isn't so with respect to misapplication of the AEDPA standard of review. In recent terms, there have been three summary reversals due to insufficient AEDPA deference in Ninth Circuit cases: Middleton v. McNeil, no. 03–1028 (May 3, 2004), Early v. Packer, no. 01-1765 (Nov. 4, 2002) and Woodford v. Visciotti, no. 02-137 (Nov. 4, 2002). (A fourth summary reversal came in a Sixth Circuit case: Holland v. Jackson, no. 03–1200 (June 28, 2004).)

I'm still waiting to see a summary reversal of the AEDPA denial of a habeas petition.