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State Forfeiture Rules and Federal Review of State Criminal Convictions, 49 University of Chicago Law Review 741 (1982)


The doctrines regulating federal scrutiny of state criminal convictions
have undergone substantial revision in the last few years.
Nonetheless, some principles seem to have remained constant. One
such principle is the pattern of choice between federal and state
preclusion standards on direct Supreme Court review and federal
habeas corpus in cases in which federal constitutional rights have
arguably been forfeited by waiver or procedural default.The preclusion
standards at issue here are those that specify whether a
federal reviewing court may address the merits of a constitutional
claim not previously litigated or whether, in contrast, that claim
has been "forfeited." To say that the pattern of choice has remained
constant, however, is not to say that it is either simple or
adequately explained in the cases or literature. On the contrary,
most discussion focuses on one piece of the puzzle or another,
without addressing how these jumbled pieces fit together. Yet there are patent inconsistencies in the way that apparently similar
problems are resolved.

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