Whether a state court's decision can be considered an 'adjudication on the merits' under 28 U.S.C. § 2254(d) when the defendant was denied a full and fair opportunity to develop material evidence

No question identified. : APPLICATION FOR EXTENSION OF TIME IN WHICH TO FILE A PETITION FORA WRIT OF CERTIORARI To: Justice Samuel Alito, Jr., Circuit Justice for the United States Court of Appeals for the Fifth Circuit: Under this Court’s Rules 13.5 and 22, Applicant Moises Sandoval Mendoza requests an extension of sixty (60) days in which to file a petition for a writ of certiorari in this case. His petition will challenge the Fifth Circuit Circuit’s decision in Mendoza v. Lumpkin, 81 F.4th 461 (5th Cir. 2023) (No. 12-70035), in which the court of appeals denied habeas relief, leaving in place Applicant’s capital sentence. A copy of the Fifth Circuit’s decision is attached at App. 1-33. In support of this application, Applicant states: 1. A panel of the Fifth Circuit issued its opinion in this case on August 31, 2023, and it denied a timely petition for rehearing on November 13, 2023. The panel’s opinion and order are attached as App. 1-33 and App. 34. Without an extension, the petition for a writ of certiorari would be due on February 12, 2024. With the requested extension, the petition would be due on April 12, 2023. This Court’s jurisdiction will be based on 28 U.S.C. § 1254(1). 2. This case, involving the applicability of AEDPA’s deferential standards, is a serious candidate for review. Among other issues, this case presents a question on which the circuits are deeply divided and on which this Court has already granted certiorari. Section 2254(d) provides that federal courts may grant habeas relief on claims that were “adjudicated on the merits in State court” only if the state court’s decision was unreasonable based on the record before it. 28 U.S.C. § 2254(d); see 1 Cullen v. Pinholster, 563 U.S. 170, 186 (2011). The lower courts are openly divided on whether Section 2254(d)’s “adjudicated on the merits” requirement is satisfied where the defendant was denied a full and fair opportunity to develop material evidence in state court. As the Fifth Circuit acknowledged in the decision below, the Fourth Circuit holds that a state court judgment based “‘on a materially incomplete record is not an adjudication on the merits for purposes of § 2254(d).” App. 13 (quoting Winston v. Kelly (“Winston I”), 592 F.3d 535, 555-56 (4th Cir. 2010), and citing Winston v. Pearson (“Winston II”), 683 F.3d 489, 501-02 (4th Cir. 2012) (reaffirming Winston I)). The Ninth and Tenth Circuits are in accord. See Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002); Wilson v. Workman, 577 F.3d 1284, 1290-97 (10th Cir. 2009) (en banc). In contrast, “a full and fair hearing is not a precondition . to applying § 2254(d)’s standards of review” in the Fifth Circuit. App. 13 (quoting Boyer v. Vannoy, 863 F.3d 428, 446 (5th Cir. 2017)). In determining whether the state court adjudicated a claim on the merits, the Fifth Circuit looks only to “whether the state court reached the merits of the petitioner’s claim rather than deciding it on procedural grounds,” Valdez v. Cockrell, 274 F.3d 941, 952 (5th Cir. 2001), even if, as a consequence of state procedures, the state court did not have “the benefit of additional material evidence,” App. 14. The Second, Sixth, and Seventh share this view: they hold that § 2254(d) applies “even if material new evidence emerges” in federal court. Wilson, 577 F.3d at 1317 (Gorsuch, J., dissenting) (citing, inter alia, Wilson v. Mazzuca, 570 F.3d 490, 500 (2d Cir. 2009), and Pecoraro v. Walls, 286 F.3d 439, 443 (7th Cir. 2002)); see also Loza v. Mitchell, 766 F.3d 466, 495 (6th Cir. 2014). As then-Judge Gorsuch summarized, there is “a circuit split on [this] important question of federal law.” Wilson, 577 F.3d at 1316 (Gorsuch, J., dissenting). 3. This Court granted certiorari to resolve the split in Bell v. Kelly, 553 US. 1031, 1031 (2008). But the Court dismissed the petition as improvidently granted after petitioner’s counsel conceded at oral argument that the state court did not actually “refuse[] to consider” the evidenc