Kelly v. Winston

(1) Whether the Fourth Circuit denied the state court the deference mandated by 28 U.S.C. § 2254 by holding that the state court’s judgment was not an adjudication on the merits and thus not entitled to deference because the state court dismissed the claim without an evidentiary hearing, by confusing the application of §§ 2254(d) and (e)(1), by approving a hearing in federal court contrary to AEDPA, and by accepting, without finding cause and prejudice for the default, new evidence to support a claim of mental retardation which the state prisoner affirmatively had told the state court had been destroyed; and (2) whether the Fourth Circuit impermissibly enlarged the Sixth Amendment right to effective assistance of counsel by permitting consideration of evidence which did not exist at the time of counsel’s representation.