Abstract: Until April 2011, every federal habeas court in America could conduct hearings and consider new evidence when reviewing a state court’s interpretation of federal law under the Antiterrorism and Effective Death Penalty Act (AEDPA). When state proceedings did not allow a petitioner a fair chance to develop the factual record, federal courts could, and sometimes did, fill the gap. The U.S. Supreme Court’s 2011 opinion in Cullen v. Pinholster significantly altered this landscape. By limiting federal review to the state record for claims already adjudicated in state court, Pinholster places an enormous premium on the adequate development of the state-court record. After Pinholster, petitioners denied the ability to develop their claims in state court will seek alternative solutions. Indeed, state defendants have already begun to pursue some of the potential paths around Pinholster, suggesting what is to come. The resulting challenges will raise fundamental, unanswered questions about AEDPA, the Suspension Clause, and the role of due process in postconviction review. This Article explores likely paths forward, filling the gaps that Pinholster, together with the Court’s recent decisions in Boumediene v. Bush, District Attorney’s Office v. Osborne, and Skinner v. Switzer, has created in both the literature and the jurisprudence.
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