Dan Epps

Yeah. And let's – for those people who are not steeped in EDPA, let's just remind people why it matters, right?

Because in this posture, when someone who is imprisoned pursuant to a state conviction is seeking federal habeas relief and they're trying to bring a claim based on a federal constitutional issue that was adjudicated by the state court, it's not enough to show that the state court got it wrong. They have to show that the state court

Because in this posture, when someone who is imprisoned pursuant to a state conviction is seeking federal habeas relief and they're trying to bring a claim based on a federal constitutional issue that was adjudicated by the state court, it's not enough to show that the state court got it wrong. They have to show that the state court

made an error of clearly established federal law as determined by the Supreme Court. Here, the court not only has to say the – it was wrong for the – so the Tenth Circuit said there's no clearly established law on this question. The court is saying, no, there was not just law but clearly established law establishing

made an error of clearly established federal law as determined by the Supreme Court. Here, the court not only has to say the – it was wrong for the – so the Tenth Circuit said there's no clearly established law on this question. The court is saying, no, there was not just law but clearly established law establishing

this due process remedy without concluding that it – that remedy is clearly available here or that this test is satisfied here.

this due process remedy without concluding that it – that remedy is clearly available here or that this test is satisfied here.

Or a small pile, right? I mean it's still open – they're still open for argument below about how much of it was actually relevant, necessary and so forth. But I'm just trying to figure out exactly what's going on here. So the court seems to be saying that whether something is holding or not for purposes of EDPA – is an independent question of federal law on which state courts don't get deference?

Or a small pile, right? I mean it's still open – they're still open for argument below about how much of it was actually relevant, necessary and so forth. But I'm just trying to figure out exactly what's going on here. So the court seems to be saying that whether something is holding or not for purposes of EDPA – is an independent question of federal law on which state courts don't get deference?

Is that how you read it? I think so.

Is that how you read it? I think so.

So in a federal habeas case, the federal habeas court is supposed to independently determine was something a holding or not. Yes. And then having done so, then we have to look at what the state court did and say, did the state court reasonably or unreasonably apply that holding? Yes. And what did the holding clearly establish? Yeah. Does that – Does that make sense to you? I mean – OK.

So in a federal habeas case, the federal habeas court is supposed to independently determine was something a holding or not. Yes. And then having done so, then we have to look at what the state court did and say, did the state court reasonably or unreasonably apply that holding? Yes. And what did the holding clearly establish? Yeah. Does that – Does that make sense to you? I mean – OK.

It doesn't to me either because it seems like if there is a situation where there's a Supreme Court decision and it is unclear whether something it said is a holding or dicta, it would seem to me that it would be – A court would – a state court would not be unreasonable in saying it was dicta, right?

It doesn't to me either because it seems like if there is a situation where there's a Supreme Court decision and it is unclear whether something it said is a holding or dicta, it would seem to me that it would be – A court would – a state court would not be unreasonable in saying it was dicta, right?

And yet EDPA does not impose deference on that judgment as I understand the law after this opinion. Yes. Which I think was not clear before, right? This is a summary – Summary vacature, I guess, not a true reversal. That is arguably making new law on habeas?

And yet EDPA does not impose deference on that judgment as I understand the law after this opinion. Yes. Which I think was not clear before, right? This is a summary – Summary vacature, I guess, not a true reversal. That is arguably making new law on habeas?

Yeah. Yeah. And who gets to decide? Yes. Yeah. Okay. Okay. A lot of questions here. One, who do we think wrote this? This is per curiam. Uh-huh. And – I still just don't understand. Why do we have this rule? Why are summary opinions per curiam? Why don't they just tell us? Who wrote them? Yeah. Why do we have this rule? Why is it argued opinions get a named author and per curiams don't?

Yeah. Yeah. And who gets to decide? Yes. Yeah. Okay. Okay. A lot of questions here. One, who do we think wrote this? This is per curiam. Uh-huh. And – I still just don't understand. Why do we have this rule? Why are summary opinions per curiam? Why don't they just tell us? Who wrote them? Yeah. Why do we have this rule? Why is it argued opinions get a named author and per curiams don't?

Tradition. Okay, but why? I would want credit if I was writing this.