The 9th Circuit will not adhere to AEDPA no matter the verbal lashings issued to it by the Supreme Court. In its latest term, the Supreme Court reversed the 9th Circuit panel who had granted habeas corpus in three state court convictions oblivious to the Supreme Court remonstrating the 9th Circuit for employing de novo review insisted of the limitations imposed by AEDPA. The 9th Circuit quoted the statute in its decisions and then ignored it.
After the end of the Supreme Court term in July, the 9th Circuit issued two more cases destined for reversal. In Thompson v. Runnel, seven 9th Circuit judges dissented from a decision in a murder case in which the defendant confessed voluntarily prior to Miranda wantings. After the officers administered Miranda warnings he confessed again. According to the panel majority, the police deliberately "delayed" reciting the Miranda admonition in violation of a Supreme Court decision objecting to this practice. There is no evidence the delayed warning was intentional or deceptive.
The numerous dissenting judges wrote another criticism of the majority panel members. Under AEDPA, state court decisions are reviewed under Supreme Court law effective at the time the Justices deliver their opinion. In Thompson, the Supreme Court delivered its "delayed Miranda" opinion five months after the Washington state court filed its original decision.
Here is the latest test of AEDPA as written by the Supreme Court in Harrington v. Richter, 131 S.Ct. 770 (2011): "As amended by AEDPA,2254 (d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254 (d) reflects the view that habeas corpus is a “guard against extreme malfunctions in the state criminal justice systems,” not a substitute for ordinary error correction through appeal. As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement;" cited in Tio Sessoms v. Runnel, 2011 WL 2163970 (C.A. 9).
In Ocampo v. Vail the prosecution admitted statements from an absent witness arguably inconsistent with the Supreme Court decision in Crawford. The absence of the witness obviously was argued by defense counsel to the jury. The statement was not interpreted by the 9th Circuit for what the witness said but what he did not say. The jury heard all the evidence, well aware that one of the witnesses was an accomplice whose testimony was impeached. The jury heard the inconsistent testimony and voted unanimously for guilty. The 9th Circuit applied its usual reweighing of the evidence and granted habeas corpus although the Washington courts had affirmed the judgment.