The U.S. Supreme Court issued its first opinion of the term in an argued case, Winter v. Natural Resources Defense Council, Inc., No. 07-1239, the "boink the whales" case. SCOTUSblog has a report here.

On the argument calendar for today is Bell v. Kelly, which could be the "sleeper" case of the term. Both sides are "all-in" on the question of the interaction between new evidence in federal habeas hearings and the deference standard of 28 U.S.C. § 2254(d). Petitioner claims that (1) the question of whether the state court decision was "reasonable" for the purpose of 2254(d) must be determined solely on the state court record, and (2) if petitioner presents substantial new evidence in federal court in support of his claim, that makes it a new claim not subject to the deference standard.

Our side responds that he is right on (1) but wrong on (2). A "claim" is one legal ground for overturning the judgment. Ineffective assistance is one claim, no matter how many failings of the trial attorney are alleged. If the state court's rejection of that claim on the basis of the evidence state habeas counsel put before it was reasonable, the claim should be denied under 2254(d), and therefore there is no need for a hearing or discovery in federal court. CJLF's brief is here, and our press release is here.

Update: A post-argument note is here.