seventh circuit court of appeals decisionHabeas – Ineffective Assistance, State Court Failure to Reach – Standard of Review … When “no state court has squarely addressed the merits” of a habeas claim, however, we review the claim under the pre-AEDPA standard of 28 U.S.C. § 2243, under which we “ ‘dispose of the matter as law and justice require.’ ” Id. at 326 (quoting § 2243).

As Kerr’s plea bargain claim reaches us—by means of a confusing presentation in the state court that was deemed a procedural default, followed by the state’s forfeiture of whatever default occurred—the one thing that is clear is that no state court has squarely addressed the merits. In these circumstances, we review Kerr’s plea bargain claim under the pre-AEDPA standard of review set out in 28 U.S.C. § 2243. See, e.g., Chaker v.Crogan, 428 F.3d 1215, 1220-21 (9th Cir. 2005); cf. Johnson v. Thurmer, 624 F.3d 786, 789-91 (7th Cir. 2010); George, 586 F.3d at 484-85; Braun v. Powell, 227 F.3d 908, 916-17 (7th Cir. 2000).

7th circuit decision, denying habeas in reliefHabeas – Standard of Review – Ineffective Assistance of Counsel When “no state court has squarely addressed the merits” of a habeas claim, however, we review the claim under the pre-AEDPA standard of 28 U.S.C. § 2243. Under this “more generous standard,” George v. Smith, 586 F.3d 479, 484 (7th Cir. 2009), “we review the petitioner’s constitutional claim with deference to the state court, but ultimately de novo.”

Because, as the 7th explained more recently in Kerr v. Thurmer, deferential review under 28 U.S.C. § 2254(d) applies only when the state court has adjudicated the claim on the merits, 639 F.3d 315 (7th Cir. 2011) (“As Kerr’s plea bargain claim reaches us … the one thing that is clear is that no state court has squarely addressed the merits. In these circumstances, we review Kerr’s plea bargain claim under the pre-AEDPA standard of review set out in 28 U.S.C. § 2243. … Under that standard, … we review the petitioner’s constitutional claim with deference to the state court, but ultimately de novo.”). Given that the Court limits consideration to this purely procedural problem, it stands to reason that the Court will either affirm on the merits after agreeing with the 9th (and the 7th) on the point; or, if disagreeing, will vacate and remand for reconsideration of the underlying 6th amendment jury claim.(Update: editing error in post corrected: “the 7th seems to follow a rule similar,” not contrary to, etc.)

UPDATE: Or, while we wait for the statute to get amended, petitioners could ask for the same relief that I propose above - a remand to the state court for a hearing. Under 28 USC 2243, habeas courts do have broad powers to "dispose of the matter as law and justice require." It could be argued that such powers include this type af action.