We now have the Questions Presented, as framed by counsel for petitioner, in Wood v. Allen, No. 08-9156, courtesy of the Alabama AG office. The Court limited the grant to petitioner's Questions 1 and 2:
1. Whether a state court's decision on post-conviction review is based on an unreasonable determination of the facts when it concludes that, during the sentencing phase of a capital case, the failure of a novice attorney with no criminal law experience to pursue or present evidence of defendant's severely impaired mental functioning was a strategic decision, while the court ignores evidence in the record before it that demonstrates otherwise?
2. Whether the rule followed by some circuits, including the majority in this case, abdicates the court's judicial review function under the Antiterrorism and Effective Death Penalty Act by failing to determine whether a state court decision was unreasonable in light of the entire state court record and instead focusing solely on whether there is clear and convincing evidence in that record to rebut certain subsidiary factual findings?The Court is evidently not interested in petitioner's Questions 3 and 4:
3. Whether a state court unreasonably applies Atkins v. Virginia when it bases its finding that a defendant does not have significant deficits in adaptive functioning and thus is not mentally retarded on an analysis of the defendant's relative strengths in adaptive functioning without considering the defendant's limitations, which is inconsistent with the accepted and established clinical definitions of mental retardation?
4. Whether a petitioner seeking habeas relief in federal court may rely on a comparative juror analysis to demonstrate a Batson v. Kentucky violation where that analysis is based on facts from the state trial court record, but was not presented to the state trial court?Question 2 interestingly asks about deciding the "deference" question based on the whole state court record, while McDaniel v. Brown, No. 08-559, asks about deciding that question only on the state court record. Do you solemnly swear to decide on the record, the whole record, and nothing but the record, so help you God?