KOZINSKI, Circuit Judge, concurring in part and dissenting in part:

Once more unto the breach. Time and again, we have been admonished for disregarding Congress's clear instruction that federal judges in habeas proceedings must adopt a "highly deferential standard" under which "state-court decisions [are] given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (internal quotation marks omitted). In clear violation of this principle, the majority today seizes upon imprecise language in a single sentence of a state court's otherwise well-reasoned and comprehensive opinion, and uses it to sweep aside AEDPA's restrictions on the scope of our review. The majority not only fails to faithfully apply Supreme Court precedent, it also creates a split with two other circuits.

If we are not summarily reversed, Mann's death sentence will surely be reimposed by the state court. One way or the other, Mann will be executed, if he doesn't die of old age first. But only after he--and the families of the two people he killed 25 years ago--endure what may be decades of further uncertainty. Where's the justice in that? I respectfully dissent from Part III of the majority's opinion.

Allowing collateral attack on a state criminal judgment via federal habeas corpus is a drastic step.  No, it is not required by the Suspension Clause.  The First Congress, composed largely of the people who wrote and ratified the Constitution, flat-out banned it.

Supporters of broad federal habeas review argue that it is necessary to prevent miscarriages of justice in state courts.  Okay, but in capital cases most of the litigation centers on the part of the case that cannot possibly result in a miscarriage of justice.

Juries in capital cases must decide three questions about the defendant:

1.  Is he guilty?

2.  If so, is he eligible for the death penalty, in the sense of (a) degree of offense, (b) existence of at least one aggravating circumstance, or (c) both, depending on state law, plus whether any constitutional death-penalty exclusions apply -- under 18, minor accomplice in a felony murder case, nonfatal crime, or intellectually disabled.

3.  If eligible, should he actually be sentenced to death, or should justice be tempered with mercy in this case?

The last question should be answered carefully, but the answer cannot be a miscarriage of justice against the defendant.  See Sawyer v. Whitley (U.S. 1992).

As AEDPA was moving through Congress, Senator Kyl predicted that the standard referred to in the quote above would be insufficient to achieve the goal of the statute to provide an effective death penalty.  His solution would have been to virtually eliminate federal habeas for state prisoners by adopting the same standard that Congress has provided for those convicted in the local court system of the District of Columbia.  He was not successful, and the compromise "deference" standard was adopted.  It would have worked if faithfully implemented by the federal courts, but it has not been.  Senator Kyl was right.

We need not go all the way to the D.C. standard for the whole case though.  Congress can and should simply remove issues involving the third question from federal habeas review of state convictions.  That is where the vast majority of the delay, expense, and wrong decisions lie, and that is where the chance of a miscarriage of justice is essentially zero.

I propose adding a subdivision (j) to 28 U.S.C. §2254:

(j) In a case subject to this section, a claim by a petitioner sentenced to death by a state court shall not be considered if the claim relates only to the sentencer's discretionary choice of sentence and not to guilt of the offense or eligibility for the penalty.  A finding of whether aggravating factors outweigh mitigating or whether death is the appropriate penalty is part of the discretionary choice for the purpose of this subdivision.