dissenting:
Director Cockrell asserts that the plenary hearing held by the district court in response to its finding that the state habe-as court denied Valdez a full and fair hearing did not excuse the application of AEDPA “deference” to the state court’s adjudication on the merits. Under this view, which the majority opinion embraces, the absence of a full and fair hearing in state court would entitle a petitioner to an evidentiary hearing before the federal district court, but the district court would nevertheless be required, pursuant to the AEDPA, to extend deference to the suspect determinations of the state court. In his brief, Valdez responds as follows:
[I]t would make little sense to require a federal district court to conduct its own evidentiary hearing because of material deficiencies in the state court proceeding, yet at the same time require the district court to disregard the fully developed evidence presented in its own court and instead defer to the decision of the state court made on an incomplete record....
The simple and compelling logic underlying this response finds ample support in Fifth Circuit and Supreme Court precedent, as well as in the writings of leading habeas corpus scholars. Therefore, I respectfully dissent.
I. The State Court Denied Valdez a Full and Fair Hearing
.Concluding that he had not received a full and fair hearing at the state habeas level, the federal district court granted Valdez an evidentiary hearing on his ineffective assistance of counsel claim. The district court based its conclusion on both (1) a finding that the state habeas court lost, and therefore did not consider, certain exhibits admitted into evidence during the hearing,1 and (2) the state habeas *960court’s failure to read the trial transcript. One need only examine the latter ground to determine that the state court did indeed deny Valdez a full and fair hearing.
In Dobbs v. Zant2 the Supreme Court emphasized the importance of “reviewing capital sentences on a complete record.”3 Accordingly, this court has recognized that meaningful federal habeas review requires a trial transcript,4 and familiarity with the trial and sentencing proceedings is no less indispensable to the state habeas court in reaching its resolution on the merits. In the present case, the state habeas judge did not preside over Valdez’s criminal trial. Consequently, he lacked the advantage of a personal recollection of the trial proceedings.5 Nevertheless, at a hearing on Valdez’s petition, the state habeas judge stated: “I have never read the record of the trial and I don’t intend to. I don’t have the time.”6 Although the Director contends that it was never shown that the judge did not read the record during the period between the hearing and the issuance of the order denying Valdez’s habeas petition, the Director offers no evidence that he did. Thus, the district court was reasonable in its conclusion that the state habeas judge did not read the trial transcript.
The Director asserts that even if the state habeas court did not read the trial transcript, this failure did not deny Valdez a full and fair hearing because Valdez’s counsel sufficiently informed the court of the trial proceedings by directing the court’s attention to relevant portions of the record and quoting it at length in the habeas petition. But discrete references to the record naade at various stages of the state habeas proceeding do not provide a complete picture of what took place at trial. In Flanagan v. Henderson,7 we found that a federal district court erred in denying habeas relief without holding an evidentiary hearing where there was no trial transcript to provide the “factual basis” necessary for the resolution of the petitioner’s due process and ineffective assistance of counsel claims.8 The state record contained only “pleadings, minute entries by the State district court clerk, various orders entered by the State trial judge and a series of abbreviated excerpts from the court reporter’s notes which relate to the 108 Bills of Exception assigned during pre *961and post trial proceedings and during the trial itself.”9 Addressing the adequacy of this record, we stated:
It well may be that the entire record transcript of the State trial is still available and that it alone will afford a fact finding procedure which is adequate to afford a full and fair hearing. However, no such transcript is now a part of the record in this cause and no fair appraisal of the reliability of the resolutions of those fact issues which have been developed by the petition can be made from the bits and pieces of the trial transcript which formed the record examined by the court below. Such a record is inadequate.10
If a record tailored from fragments of material generated by the state trial court is insufficient for us to decide an ineffective assistance of counsel claim, it is likewise inadequate for a state habeas court lacking first-hand knowledge of the trial proceedings. The conclusion is therefore inescapable that the state habeas judge’s decision not to read the trial transcript denied Valdez a full and fair hearing.
II. A Full and Fair Hearing Is a Prerequisite to AH DP A “Deference”
The district court found that the AED-PA standards of review “largely do not apply since this Court has held an eviden-tiary hearing in order to consider evidence improperly excluded from consideration by the state habeas court.”11 Thus, the district court addressed “the ultimate conclusion regarding ineffective assistance of counsel without the presumption that the state court’s conclusion was correct.”12 In support of the court’s finding, Valdez asserts that pre-AEDPA law governs the consequences that arise when a federal evidentiary hearing is mandatory because the state court failed to conduct a full and fair hearing. This case therefore requires an understanding of pre-AEDPA law.
A. Pre-AEDPA Law
In the 1953 case of Brown v. Allen,13 the Supreme Court decided when a federal habeas corpus court is to hold its own hearing on a constitutional claim. Roughly speaking, the Court concluded that if there were “unusual circumstances” or a “vital flaw” in the state court process, a federal hearing was required.14 But even in the absence of a defect, the district court remained free, in the exercise of its discretion, to take testimony as to the facts.15
Because the Brown opinion did not define “unusual circumstances” or “vital flaw,” and because the lower federal courts were reaching inconsistent results, the Supreme Court sought to clarify matters in the 1963 case of Townsend v. Sain,16 The Court unanimously held that whenever a habeas applicant alleges facts that, if proved, would entitle him to relief, the federal court may “receive evidence and try the facts anew.”17 The Court was likewise unanimous in stating that independent factfinding is mandatory “if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, *962either at the time of the trial or in a collateral proceeding.”18 A majority of the Court proceeded to list six circumstances in which a federal evidentiary hearing was mandatory. These were:
(1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.19
The Court also repeated in Townsend that the district court has the discretion to conduct a hearing in any case, even when none of the above criteria is met.20
In 1966, Congress enacted the former 28 U.S.C. § 2254(d), which provided:
In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indi-cia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit—
(1) that the merits of the factual dispute were not resolved in the State court hearing;
(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;
(3) that the material facts were not adequately developed at the State court hearing;
(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;
(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;
(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or
(7) that the applicant was otherwise denied due process of law in the State court proceeding;
(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record:
And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs (1) to (7), inclusive, is shown by the applicant,
*963otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.21
The tests for procedural regularity and substantive accuracy established by former § 2254(d) bore an obvious resemblance to the Townsend guidelines. However, as observed by Professor Yackle:
The precise fit between the former § 2254(d) and Townsend was never perfectly clear. The prevailing view was that the former § 2254(d) neither displaced nor codified Townsend’s holding on the threshold question of whether a court must conduct a hearing. Rather, the former § 2254(d) assumed that a federal hearing was to be held and addressed only the bearing previous state court findings should have in that federal proceeding. The key to that interpretation lay in the text of the former § 2254(d) itself, which provided that the presumption in favor of state findings would apply “in” a federal habeas proceeding and that the applicant could rebut that presumption “in an evidentiary hearing in the federal proceeding” by adducing convincing evidence that the state finding was erroneous.22
Thus, under the “prevailing view,” the statute did not come into play if a federal hearing was mandatory under Townsend.23 *964The parties were simply left in their traditional positions; i.e., the petitioner had to establish a prima facie case for relief, thereby forcing the respondent to come forward with rebutting evidence.24 However, if Townsend did not require an evi-dentiary hearing, but the federal habeas court granted one in its discretion, and the petitioner could not demonstrate by a preponderance of the evidence that the state court proceeding failed one of the eight statutory standards, then § 2254(d) provided that the state factual findings were presumed to be correct — unless the petitioner showed by “convincing” evidence that the state determinations were erroneous.25
The foregoing authorities clearly demonstrate that prior to the AEDPA, the denial of a full and fair hearing defeated the presumption of correctness.26 The Supreme Court’s decision in Townsend dictated this defeat because two of the six criteria listed by the Court hinged upon the full and fair hearing requirement. When the requirement was not met, the federal habeas court had to afford the petitioner an evidentiary hearing. At the federal hearing, the presumption of correctness did not apply. Although this point eludes the majority, the inapplicability of the presumption was obvious, for “if Townsend indicates sufficient unreliability in the state conclusions so that a new *965hearing is required, it is reasonable to refuse to give weight to the former conclusions in the new hearing.”27
B. The AEDPA — The Effect of State Factual Findings
The AEDPA repealed former § 2254(d) and replaced it with two new provisions dealing with state court factfindings and factfinding procedures, 28 U.S.C. §§ 2254(d)(2) and 2254(e)(1):
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
Professor Yackle interprets the amendments in the following manner:
Under the former § 2254(d), the presumption of accuracy owed to state findings was contingent on written evidence of the state court’s conclusions, sound process in state court, and fair support in the evidentiary record. Indeed, the former § 2254(d) set out its list of procedural and substantive standards as the means by which the federal habeas courts could determine whether state findings were entitled to the presumption. Read literally, the new § 2254(e)(1) preserves the presumption in favor of state court findings, but eliminates both the former requirement that findings must be in writing and any federal standards for the fact-finding process and the evidentiary record in state court. Bluntly stated, it appears that the federal habeas courts must accept state court findings at face value— no questions asked.
A change of that kind would be dramatic and not something that anyone would lightly read into the new law. One can imagine that, in some circumstances at least, serious constitutional questions would be raised by a rule that requires a federal court to accept a factual finding made in state court, with no written statement of the finding on which to focus and with no ability to assess the process out of which that finding emerged and the evidence on which it was based.
Moreover, § 2254(e)(1) must be reconciled with the new version of § 2254(d), which has it that a federal habeas court may award relief on the merits if a state court based its decision against a petitioner on “an unreasonable determination of the facts in light of the evidence.” Under that new provision, a federal court can scarcely be indifferent to the process by which a state court reached a factual finding or the evidentiary support that finding enjoys.
I read § 2254(e)(1) to drop the specific procedural and substantive standards contained in the former § 2254(d). But I do not read it to dispense with a federal court’s rudimentary responsibility to ensure that it is deciding a constitutional claim based on factual findings that were forged in a procedurally ade*966quate way and were anchored in a sufficient evidentiary record. In this sense, § 2254(e)(1) departs from prior law, but only to substitute general notions of procedural regularity and substantive accuracy for detailed statutory standards.28
The majority points out that the AED-PA “jettisoned all references to a ‘full and fair hearing.’ ”29 So, in its view, “[t]o reintroduce a full and fair hearing requirement that would displace the application of § 2254(e)(l)’s presumption [of correctness] would have the untenable result of rendering the amendments enacted by Congress a nullity.”30 While the deletion of language by Congress is often controlling in the enterprise of statutory construction, AEDPA cannot reasonably be interpreted in such a manner. Consider the following observations from the late Professor Wright:
The old statute [former 28 U.S.C. § 2254(d) (1994) ] applied to “a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were pariies, evidenced by a written finding, written opinion, or other rehable and adequate written indicia * * The new statute [28 U.S.C. § 2254(e)(1) ] applies to “a determination of a factual issue made by a State court * * Thus, at least on its face the new statute does not require that the determination be “after a hearing on the merits” of the factual issue, it does not require that the applicant for the writ and the State or an officer or agent have been parties, and it does not require that the determination be evidenced by written indicia. Indeed the new statute does not even require that the state court that made the determination have been a court of competent jurisdiction. Presumably the courts will continue to insist on that and it is likely that some of the other elements that were in the old statute but not in the new one will be read back into it by the courts.31
Thus, under the method of construction advanced in the majority opinion, this court could not require sound process, or even competent jurisdiction, in the state court that issued factual findings. Moreover, § 2254(e), unlike its predecessor, *967does not state that the petitioner’s burden of rebutting the presumption of correctness arises “in” a federal evidentiary hearing.32 Under the majority’s construction, this omission means that § 2254(e) does not presuppose that a federal evidentiary hearing is to be held on the basis of Townsend, but rather that § 2254(e) speaks to whether a hearing will be conducted in the first instance. But the Fifth Circuit has rejected an interpretation along these lines. In Clark v. Johnson,33 a habeas petitioner complained that the state habe-as court did not afford him a full and fair hearing, and thus the federal district court erred in denying him discovery and an evidentiary hearing. After finding that the petition was governed by the AEDPA, the court stated that “[o]ur pre-AEDPA jurisprudence is instructive in evaluating whether the district court’s denial of discovery and an evidentiary hearing was an abuse of discretion.”34 After surveying the jurisprudence, the court continued: “To find an abuse of discretion which would entitle Clark to discovery and an evidentiary hearing to prove his contentions, we would necessarily have to find that the state did not provide him with a full and fair hearing....”35 The court ultimately concluded that the state proceedings did provide Clark with a full and fair hearing.36 The court’s analysis of Clark’s claim is significant, however, because it indicates that a state court’s denial of a full and fair hearing continues to mandate, post-AEDPA, a federal eviden-tiary hearing pursuant to Townsend. Even the majority acknowledges the continuing validity of the full and fair hearing requirement in this context.37
Despite this acknowledgment, the majority finds that Singleton v. Johnson38 “offers Valdez no support.”39 There, the state habeas court granted the petitioner relief in part and issued findings of fact. The Texas Court of Criminal Appeals reversed and denied Singleton relief without issuing an opinion. Concluding that there were no findings to which the presumption of correctness could apply, we held that the petitioner was entitled to a “full and fair evidentiary hearing” on the factual issue in dispute.40 The case was therefore remanded for a “de novo evidentiary hearing.”41 The majority states that we “did not pass upon the question as to whether the absence of ... [a full and fair hearing] precluded the operation of § 2254(d).”42 The majority then asserts that in determining that the Texas Court of Criminal Appeals reached an adjudication on the *968merits, this court “implied that § 2254(d) applied to such a summary disposition, even where the petitioner was entitled to an evidentiary hearing.”43 But Singleton does not permit this implication. A hearing de novo is a “new hearing of a matter, conducted as if the original hearing had not taken place.”44 Where such a hearing is ordered, there is no room for deference to the previous court’s findings. Fifth Circuit precedent therefore suggests that the AEDPA did not disturb prior law concerning the circumstances in which a federal evidentiary hearing is mandatory. Because Townsend still governs that question, the denial of a full and fair hearing must render inoperative the statutory presumption of correctness, just as it did prior to the 1996 amendments.45
Another weakness in the majority opinion’s treatment of the presumption of correctness is its failure to apply § 2254(d)(2). Although the courts have not made it clear how § 2254(d)(2)’s “invitation to decide whether the state fact determinations were reasonable ... fit[s] with the presumption that the state fact determinations are correct,”46 leading scholars contend that reading § 2254(d)(2) and § 2254(e)(1) in pari materia yields results similar to those reached when § 2254(d) explicitly provided that the denial of a full and fair hearing defeated the presumption of correctness.47 In the present case, the state habeas judge did not read the trial transcript, thus depriving Valdez of a full and fair hearing. In light of this failure, it is disingenuous to conclude that the state court rendered a decision that was based on a reasonable “determination of the facts in light of the evidence presented,”48 and is therefore entitled to deference. Instead, a faithful application of § 2254(d)(2) supports the approach taken by the federal district court.
In sum, there is a complete absence of support for the majority’s holding that a federal court must apply the presumption of correctness when the state court’s failure to provide a habeas petitioner with a full and fair hearing necessitates a federal evidentiary hearing. In his brief, Valdez argues that the “AEDPA simply does not address the issue of when a federal eviden-tiary hearing is required, or the consequence of conducting such a hearing, when the state courts have failed to provide a full and fair hearing.” Scholarly commentary on the AEDPA and this court’s post-AEDPA jurisprudence overwhelmingly support this argument.
C. The AEDPA-Conclusions of Law and Mixed Questions of Law and Fact
28 U.S.C. § 2254(d)(1) provides:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim'—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States....
Subsection (d)(1) governs review of questions of law and mixed questions of law and fact when the state court has adjudicated the petitioner’s claim on the merits. An “adjudication on the merits” occurs *969when the state court resolves the case on substantive grounds, rather than procedural grounds.49 The majority asserts that the mandatory language of § 2254(d)(1) “combined with the meaning of ‘adjudication on the merits' leaves no room for judicial imposition of a full and fair hearing prerequisite.”50 However, in Morris v. Cain,51 this court stated: “A full and fair adjudication of a petitioner’s claims in state court is a prerequisite for application of AEDPA’s review provisions.”52 Moreover, in Corwin v. Johnson,53 we declared: “In this Circuit, provided the state court conducted a full and fair adjudication of the petitioner’s claims, pure questions of law and mixed questions of law and fact are reviewed under § 2254(d)(1).”54
Addressing this clear precedent, the majority opinion states that “[t]o the extent that these references to a ‘full and fair’ adjudication refer to a full and fair state court hearing, they were dicta. Neither in Morns nor in Corwin were we confronted with a claim that the petitioner had been denied a full and fair hearing.”55 The majority further asserts that “[ajpart from being dicta, these references also appear to conflate the adjudication on the merits requirement with a full and fair hearing requirement, referring to the adjudication on the merits as a ‘full and fair adjudication on the merits.’ ”56 This assertion is questionable, however, in light of the discrete meaning of “adjudication on the merits” and the statement made earlier in the majority opinion that the phrase “does not speak to the quality of the process.”57 The better view is that the “full and fair hearing” and “adjudication on the merits” requirements retain independent significance.58 This view is supported by the Supreme Court’s unanimous opinion in Michael Williams v. Taylor.59 There, the Court addressed a habeas petitioner’s entitlement to an evidentiary hearing under § 2254(e)(2):
For state courts to have their rightful opportunity to adjudicate federal rights, the prisoner must be diligent in developing the record and presenting, if possible, all claims of constitutional error. If the prisoner fails to do so, himself or herself contributing to the absence of a full and fair adjudication in state court, § 2254(e)(2) prohibits an evidentiary hearing to develop the relevant claims in federal court, unless the statute’s other stringent requirements are met.... Yet comity is not served by saying a prisoner “has failed to develop the factual basis of a claim” where he was unable to develop his claim in state court despite diligent effort. In that circumstance, an evidentiary hearing is not barred by § 2254(e)(2).60
*970The Court’s use of the phrase “full and fair” evinces its concern for the quality of the state court process. Indeed, the Court refused “to attribute to Congress a purpose or design to bar evidentiary hearings for diligent prisoners with meritorious claims just because the prosecution’s conduct went undetected in state court.”61
In explaining its statutory interpretation, the majority complains that Valdez would have the court apply the full and fair hearing requirement to a deferential scheme as to conclusions of law and mixed questions of law and fact that did not exist prior to the AEDPA, thereby rendering null the amendments enacted by Congress. But Valdez merely asserts that the AED-PA does not address the precise issue presently before the court. Moreover, his argument suggests that the amendments should be interpreted in a manner that comports with traditional notions of constitutional due process. It is a “cardinal principle” that if it is “fairly possible” to construe an act of Congress to avoid a constitutional question, then the statute should be interpreted in that way.62 The majority holds that the AEDPA prohibits a federal court from examining the process by which the state court arrived at its decision. This holding raises serious constitutional questions. As stated by Professor Yackle: “In the preclusion context, the Supreme Court has said that federal courts need not respect state judgments unless litigants had a ‘full and fair opportunity’ to litigate their claims in state court ... and has made it clear that, at a minimum, the measure of that opportunity is due process in the constitutional sense.”63 These teachings apply with equal force to the present case. Furthermore, in his concurring opinion in Terry Williams v. Taylor,64 Justice Stevens found:
A construction of AEDPA that would require the federal courts to cede th[e] authority [to interpret federal law] to the courts of the States would be inconsistent with the practice that federal judges have traditionally followed in discharging their duties under Article III of the Constitution. If Congress had intended to require such an important change in the exercise of our jurisdiction, we believe it would have spoken with much greater clarity than is found in the text of AEDPA.65
*971This uncertainty as to Congressional intent places the majority’s advancement of deference without regard to whether due process was afforded in the state court on shaky ground. A more solid interpretation of the AEDPA would be one that observes ordinary constitutional due process standards.
D. The AEDPA, “Deference, ” and Other Circuits
In Miller v. Champion,66 the Tenth Circuit recognized that:
[Although] [fjederal courts entertaining habeas petitions must give a presumption of correctness to state courts’ factual findings, ... [tjhis presumption of correctness does not apply ... if the habeas petitioner did not receive a full, fair, and adequate hearing in the state court proceeding on the matter sought to be raised in the habeas petition.67
Whereas the district court cited Miller in support of its decision, the majority declines to adopt its approach and declares that Miller rests on “tenuous footing” because the Tenth Circuit relied on its pre-AEDPA jurisprudence.68 This conclusion, however, ignores the reality that every circuit, including this one, has continued to apply pre-AEDPA cases in appropriate circumstances.69 The court in Miller clearly held, post-AEDPA, that the failure of a state court to conduct a full and fair evidentiary hearing precluded AEDPA’s deference to the state court’s mixed law and fact conclusions.70
Casting aside the Tenth Circuit decision, the majority relies instead on the “Fourth Circuit’s view of AEDPA deference.”71 The majority opinion discusses the Fourth Circuit’s en banc decision in Bell v. Jarvis.72 In Bell, the petitioner was convicted of multiple counts of sexual misconduct. While direct appeal and state post-conviction review were denied summarily by the North Carolina state courts, the federal habeas courts evaluated the petitioner’s constitutional claims with a much closer degree of scrutiny. The district court denied habeas relief. On appeal, a divided panel of the Fourth Circuit reversed the district court’s ruling and granted habeas relief. But on rehearing en banc, the full Fourth Circuit affirmed the district court’s denial of relief.
In the course of its ruling, the en banc court had occasion to reconsider, with guidance from Terry Williams, the application of 28 U.S.C. § 2254(d)(1) to state court summary affirmances. It interpreted Terry Williams to mean that the only question remaining after AEDPA was “whether the state court’s adjudication of the claims before it was a reasonable one in light of the controlling Supreme Court law.”73 Finding that Terry Williams left it no choice but to overrule an earlier line of cases that allowed federal habeas courts to independently ascertain whether consti*972tutional rights were violated when the state courts had not articulated their reasoning, the majority concluded that, under AEDPA, federal courts are “no longer permitted to review de novo [state court] decisions on the merits.”74 It also concluded that whether or not there was, in fact, a constitutional violation “is not an essential part of the inquiry under § 2254(d).”75 For a number of reasons, the majority’s invocation of Bell is cause for concern.
First, Bell’s analytical method is flawed. When Terry Williams is read along with Weeks v. Angelone76 (decided just before Terry Williams) and Ramdass v. Angelone77 (decided soon after Terry Williams), it becomes clear that “federal courts should adjudicate habeas corpus claims by first performing the court’s traditional function of analyzing the merits of the federal constitutional claim”78 and only then assessing whether § 2254(d)(1) precludes habeas relief even though the court has found a constitutional violation.79 The Fourth Circuit never determined whether a constitutional violation occurred. Instead, it contented itself with the general finding that the state court result was not unreasonable, even though the state court had denied relief summarily without identifying a federal rule of decision.
Second, the Bell court simply did not consider whether the state court denied the petitioner a full and fair hearing. Although the majority states that Bell implies that there is no full and fair hearing requirement under the AEDPA, the Fourth Circuit kept its focus on the summary nature of the state court’s disposition.
Finally, the majority generally advocates the “sweeping” view of “AEDPA deference” championed by the Fourth Circuit.80 But in Terry Williams, Justice Stevens issued a reminder “that the word ‘deference’ does not appear in the text of the statute itself.”81 Furthermore, in Van Tran v. Lindsey,82 the Ninth Circuit recognized that in Terry Williams:
[T]he Court rejected the interpretation, adopted in various forms by the Fourth, Fifth, Seventh, and Eleventh Circuits, that defines reasonableness on the basis of whether “reasonable jurists” could disagree about the result reached by the state court. Instead, the Court adopted an “objectively unreasonable” standard, employing the language used in deci*973sions by the Third and Eighth Circuits. We think it significant that the Third and Eighth circuits adopted that test, rather than the tests developed by other circuits, because they determined that the other circuits’ tests were too deferential. The Supreme Court thus chose to adopt the interpretation of AEDPA that espoused the more robust habeas review.83
In Gardner v. Johnson,84 we noted the “insightful observation” made in Van Tran and agreed that the rejection of the “reasonable jurists” standard as “too deferential” to state courts clearly implies that the Supreme Court in Terry Williams “preferred a more stringent habeas review of state court decisions.”85 Consequently, the majority’s desire for broad, sweeping, and unchecked deference to state court adjudications finds no support in the precedents of either the Fifth Circuit or the Supreme Court.
Bell provides no basis for overtiming the district court’s ruling, particularly since the district court relied on the Tenth Circuit’s approach in Miller, which is both analytically sound and relevant to the present case.
III. Conclusion
My greatest disappointment with the majority opinion concerns my colleagues’ apparent belief that silence in the text of the AEDPA signifies affirmative repudiation by Congress of the pre-existing body of habeas corpus law, including “general notions of procedural regularity and substantive accuracy.”86 Although the majority’s approach may constitute sound statutory construction in appropriate instances, in the present case it ignores the delicate balance struck by the Supreme Court among competing concerns of federalism, due process, Article III jurisdiction, faithfulness to Congressional enactments, and the importance of the Great Writ to our legal tradition.87 Townsend v. Sain has life remaining and, in the present case, it supports the district court’s determination that, where there had been a denial of a full and fair hearing before the state habe-as court, the AEDPA’s review provisions, as set forth in 28 U.S.C. §§ 2254(d) and (e), did not apply. Thus, for the foregoing reasons, I respectfully dissent.
. See Maj. Op. at 944.
. 506 U.S. 357, 113 S.Ct. 835, 122 L.Ed.2d 103 (1993).
. Id. at 358, 113 S.Ct. 835.
. See, e.g., Magouirk v. Phillips, 144 F.3d 348, 363 (5th Cir.1998) ("We are at a loss to understand how a federal habeas court can conduct a meaningful sufficiency review without a transcript of [the] trial.”).
. This court has heavily relied on this advantage when deciding whether "paper hearings” are full and fair. "Paper hearings are hearings where the state judge did not hear live testimony, but instead relied on affidavits.” Perillo v. Johnson, 79 F.3d 441, 446 n. 7 (5th Cir.1996). See, e.g., Clark v. Johnson, 202 F.3d 760, 766 (5th Cir.2000) (finding that paper hearing was full and fair where habeas judge had been the trial judge). Cf. Perillo, 79 F.3d at 446-47 (concluding that the state habeas judge’s reliance on transcripts and affidavits to resolve ineffective assistance claim presented unacceptable "danger of 'trial by affidavit,’ ” especially given that the judge did not preside at trial and "could not supplement the affidavits with his own recollection of the trial and [defense counsel’s] performance in it”).
. Valdez v. Johnson, 93 F.Supp.2d 769, 776 (S.D.Tex.1999).
. 496 F.2d 1274 (5th Cir.1974).
. Id. at 1277 (citing Townsend v. Sain, 372 U.S. 293, 312-13, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963) ("[A] federal evidentiary hearing is required unless the state-court trier of fact has after a full hearing reliably found the relevant facts.”)).
. Flanagan, 496 F.2d at 1276.
. Id. at 1277.
. Valdez, 93 F.Supp.2d at 777.
. Id. at 778.
. 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953).
. See 17A Charles Alan Wright et al., Federal Practice and Procedure § 4265 (2d ed. 1988 & Supp.2001).
. Id.
. 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).
. Id. at 312, 83 S.Ct. 745.
. Id.
. Id. at 313, 83 S.Ct. 745.
. See id. at 318, 83 S.Ct. 745.
. 28 U.S.C. § 2254(d) (1994) (repealed 1996).
. Larry W. Yackle, Federal Evidentiary Hearings Under the New Habeas Corpus Statute, 6 B.U. Pub. Int. L.J. 135, 139 (1996). See Developments in the Law — Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1122 n.46 (1970):
On its face and in light of the legislative history, the [1966] amendment is not directed at the question whether to hold a federal evidentiary hearing. Instead, it assumes that a hearing is to be held and attempts to decide if the state’s factual conclusions are to be deemed presumptively correct at that hearing. Though their purposes are distinguishable, the amendment and Townsend do reinforce each other. If the procedure at the state hearing was so inadequate that a Townsend hearing is necessary, it would be inconsistent, as the statute recognizes, for the judge at the federal evidentiary hearing to treat the state decision as presumptively correct.
See also LaVallee v. Delle Rose, 410 U.S. 690, 701 n. 2, 93 S.Ct. 1203, 35 L.Ed.2d 637 (1973) (Marshall, J., dissenting) ("The Court, of course, does not hold that the District Court erred in holding a de novo evidentiary hearing on the voluntariness of respondent’s confession. That is a question distinct from the presumption of validity and the special burden of proof established by 28 U.S.C. § 2254(d). Section 2254(d) says nothing concerning when a district judge may hold an evidentiary hearing — as opposed to acting simply on the state court record — in considering a state prisoner's petition for federal ha-beas corpus. So far as I understand, the question whether such a hearing is appropriate on federal habeas corpus continues to be controlled exclusively by our decision in Townsend v. Sain even after the enactment of § 2254(d).”); Guice v. Fortenberry, 661 F.2d 496, 501 (5th Cir.1981) ("Townsend was not, however, completely superseded by the [1966] amendment, for the Supreme Court decided when a federal evidentiary hearing is mandatory while the habeas corpus statute, as amended, merely establishes a presumption that the state court judgment is correct unless the applicant establishes one of a number of specific reasons to disregard it.”).
. See Fowler v. Jago, 683 F.2d 983, 988 (6th Cir.1982):
Although on its face the statute does not govern when a federal court must hold an independent evidentiary hearing, it does require that state court findings of fact made after a full and fair hearing are entitled to a presumption of correctness. If the findings of the state court meet the indicia outlined *964in § 2254(d), the state court determination is presumed to be correct. Nevertheless, the presumption and special burden of proof do not operate at all if any one of the eight specified exceptions to the statute exists. These eight exceptions appear to subsume the six Townsend criteria. Thus, the determination that one of the six Townsend criteria exists necessarily resolves the § 2254(d) burden of proof issue. If one of the Townsend criteria is present, the district court must hold an evidentiary hearing and the presumption of correctness does not apply. Conversely, if the presumption is operative, an evidentiary hearing cannot be mandated.
See also Collins v. Francis, 728 F.2d 1322, 1344 n. 24 (11th Cir.1984):
Petitioner cites 28 U.S.C. § 2254(d) (eliminating the presumption of correctness ordinarily accorded state habeas court findings when these findings arose out of a hearing that was not full and fair). This rule does not aid us. If we find, when we apply the [Townsend v.] Sain test, that the district court should have held an evidentiary hearing, we necessarily find, as well, that § 2254(d) applies to eliminate the presumption of correctness. If the Sain test does not mandate a hearing, the presumption of correctness necessarily stands. Our focus is on the Sain test, not on the § 2254(d) presumption of correctness determination.
. Larry W. Yackle, Postconviction Remedies § 134, at 509 (1981).
. Id. at 508-09. See Miller v. Fenton, 474 U.S. 104, 111, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985) ("When a hearing is not obligatory ... the federal court ‘ordinarily should ... accept the facts as found' in the state proceeding.”) (citation omitted); Guice v. Fortenberry, 661 F.2d 496, 501 n. 6 (5th Cir.1981) ("The statute lists eight possible deficiencies in state court fact-findings (rather than the Townsend six); but their relevance is to the question whether the state findings are to be ‘presumed’ correct. Further, if none of the eight deficiencies is shown, the effect of this is, not to negate the power of the judge to call for a hearing, but, confusingly, to shift to the petitioner the burden to show at a hearing that the state findings were erroneous.”) (quoting Paul M. Bator et al., Hart and Wechsler's The Federal Courts and the Federal System 1505 n. 7 (2d ed.1973)). See also Developments in the Law, supra note 22, at 1144 ("The [1966] amendment seems clearly designed to control the burden and standard of proof in those evidentiary hearings not mandated by Townsend.”).
. See Nethery v. Collins, 993 F.2d 1154, 1157 (5th Cir.1993) ("The state habeas court found as a matter of fact that the judge was not a personal friend of the victim. Because it did not follow on the heels of a full and fair hearing, this finding is not entitled to the statutory presumption of correctness.”).
. Developments in the Law, supra note 22, at 1142.
. Yackle, supra note 22, at 140-41. Liebman and Hertz assert that new sections 2254(d)(2) and 2254(e)(1) must be read in pan materia. "Doing so leads to the conclusion that section 2254(d)(2) divides 'determination[s] of the facts’ into two categories— state court factfindings that are flawed because they are 'unreasonable,' hence are a basis for habeas corpus relief without more; and findings that are not flawed because they are '[ Reasonable,’ hence are presumed to be correct unless the petitioner proves otherwise 'by clear and convincing evidence.’ ” 1 James S. Liebman & Randy Hertz, Federal Habeas Corpus Practice and Procedure § 20.2c, at 751 (3d ed. 1998 & Supp.2000). Thus, "the inquiry required by two ... superseded subsections — into the 'full[ness], fair[ness], and adequa[cy]' of the state court’s 'factfinding procedure,' superseded 28 U.S.C. §§ 2254(d)(2), 2254(d)(6) (1994)—is not appreciably different from the new Act’s 'reasonableness' inquiry.” Id. at 753 n. 78. See Barnett v. Hargett, 174 F.3d 1128, 1136 (10th Cir.1999) (presumption of correctness did not attach to state court’s historical finding of fact that a pretrial competency hearing was held, because this historical finding was not made at a "full, fair, and adequate hearing”; "presumption of correctness [under 28 U.S.C. § 2254(e)(1) ], even for the purely historical fact as to whether a [competency] hearing occurred, ... does not apply when 'some reason to doubt the adequacy or the accuracy of the fact-finding proceeding’ exists”).
. Maj. Op. at 949.
. Id. at 950.
. Wright et al., supra note 14, § 4265.2 (Supp.2001).
. See supra text accompanying note 22.
. 202 F.3d 760 (5th Cir.2000).
. Id. at 766.
. Id.
. Id.
. In support of his argument that the denial of a full and fair state court hearing entitles a petitioner to a federal hearing and defeats the presumption of correctness, Valdez cited Hughes v. Johnson, 191 F.3d 607, 630 (5th Cir.1999) (“When there is a factual dispute, [that,] if resolved in the petitioner's favor, would entitle [him] to relief and the state has not afforded the petitioner a full and fair evidentiary hearing, a federal habeas corpus petitioner is entitled to discovery and an evi-dentiary hearing.”) (citation omitted). The majority opinion states that "Valdez's reliance on Hughes is misplaced” because the court in that case "addressed solely the question of whether Hughes was entitled to an evidentia-ry hearing.” Maj. Op. at 952.
. 178 F.3d 381 (5th Cir.1999).
. Maj. Op. at 952.
. Singleton, 178 F.3d at 385.
. Id.
. Maj. Op. at 952.
. Id.
. Black’s Law Dictionary 725 (7th ed.1999).
. See supra note 26. See also Miller v. Champion, 161 F.3d 1249 (10th Cir.1998).
. Wright et al., supra note 14, § 4265.2 (Supp.2001).
. See supra note 28 and accompanying text.
. 28 U.S.C. § 2254(d)(2) (emphasis added).
. See Mercadel v. Cain, 179 F.3d 271, 273 (5th Cir.1999).
. Maj. Op. at 950.
. 186 F.3d 581 (5th Cir.1999).
. Id. at 584.
. 150 F.3d 467 (5th Cir.1998).
. Id. at 471.
. Maj. Op. at 951.
. Id. at 906.
. Id. at 950.
. Indeed, in Singleton v. Johnson, 178 F.3d 381, 384-85 (5th Cir.1999), this court concluded that the Texas Court of Criminal Appeals’ denial of relief constituted an adjudication on the merits, but nevertheless remanded the case for a "full and fair evidentiary hearing.” See supra text accompanying notes 38-45.
. 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000).
. Id. at 437, 120 S.Ct. 1479 (emphasis added).
. Id. at 434-35, 120 S.Ct. 1479.
. Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 76 L.Ed. 598 (1932). See also United States v. X-Citement Video, 513 U.S. 64, 73, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994) (''[W]e do not impute to Congress an intent to pass legislation that is inconsistent with the Constitution as construed by this Court.”).
. Yackle, supra note 22, at 141 n. 21 (citing Allen v. McCurry, 449 U.S. 90, 95, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980); Kremer v. Chemical Constr. Corp., 456 U.S. 461, 481, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982)).
. 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
. Id. at 379, 120 S.Ct. 1495. The Court's construction of § 2254(d)(1) in Terry 'Williams does not eliminate all constitutional concerns. Liebman and Hertz observe:
Although Terry Williams’ certiorari petition contended, inter alia, that Congress, via section 2254(d)(1), cannot constitutionally bar a federal court from granting habeas corpus relief from a state court decision of law that the federal court independently adjudges to violate federal law in effect when the state court ruled, ... the Supreme Court denied certiorari on that question, ... and neither of the two majority opinions in Williams addressed it.... The question of section 2254(d)(l)'s constitutionality remains open, therefore, and may be decisive in the rare close case in which the Court’s interpretation of section 2254(d)(1) bars a federal habeas corpus court from issuing the writ despite independently concluding ... that a state court custodial judgment violates the United States Constitution.
2 Liebman & Hertz, supra note 28, § 30.2d (Supp.2000).
. 161 F.3d 1249 (10th Cir.1998).
. Id. 1254 (quoting Nguyen v. Reynolds, 131 F.3d 1340, 1359 (10th Cir.1997)).
. See Maj. Op. at 952.
. In interpreting the AEDPA, even the Supreme Court "thus far has paid rather close attention to its own precedents.... ” 1 Liebman & Hertz, supra note 28, § 2.2, at 14 n.13 (citing Hohn v. United States, 524 U.S. 236, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998); Stewart v. Martinez-Villareal, 523 U.S. 637, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998); Calderon v. Thompson, 523 U.S. 538, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998)).
. See Miller, 161 F.3d at 1254.
. Maj. Op. at 952.
. 236 F.3d 149 (4th Cir.2000).
. Id. at 162.
. Id. at 163.
. Id.
. 528 U.S. 225, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000).
. 530 U.S. 156, 120 S.Ct. 2113, 147 L.Ed.2d 125 (2000).
. 2 Liebman & Hertz, supra note 28, § 30.2c (Supp.2000).
. See Van Tran v. Lindsey, 212 F.3d 1143, 1155 (9th Cir.2000) (relying on Terry Williams to "hold that, when analyzing a claim that there has been an unreasonable application of federal law, we must first consider whether the state court erred; only after we have made that determination may we then consider whether any error involved an unreasonable application of controlling law within the meaning of § 2254(d)”; "Requiring federal courts to first determine whether the state court’s decision was erroneous, prior to considering whether it was contrary to or involved an unreasonable application of controlling law under AEDPA, promotes clarity in our own constitutional jurisprudence and also provides guidance for state courts, which can look to our decisions for their persuasive value.... Such a rule also respects our duty, as Article III judges, to say 'what the law is.' ”) (quoting Terry Williams, 529 U.S. at 378, 120 S.Ct. 1495 (Stevens, J., concurring)).
. See Maj. Op. at 952-53.
. Terry Williams, 529 U.S. at 386, 120 S.Ct. 1495 (Stevens, J., concurring).
. 212 F.3d 1143 (9th Cir.2000).
. Id. at 1150-51.
. 247 F.3d 551 (5th Cir.2001).
. Id. at 559-60.
. See supra text accompanying note 28.
. The Constitution provides that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. Const. art. I, § 9, cl. 2. Alexander Hamilton proclaimed the necessity of this provision in the following manner:
Arbitrary impeachments, arbitrary methods of prosecuting pretended offences, and arbitrary punishments upon arbitrary convictions have ever appeared to me to be the great engines of judicial despotism; and these have all relation to criminal proceedings. The trial by jury in criminal cases, aided by the habeas corpus act, seems therefore to be alone concerned in the question. And both of these are provided for in the most ample manner in the plan of the convention.
The Federalist No. 83, at 562-63 (Alexander Hamilton) (J.E. Cooke ed., 1961). See also Brecht v. Abrahamson, 507 U.S. 619, 650, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (O'Connor, J., dissenting) ("[Djecisions concerning the Great Writ warrant restraint, for we ought not take lightly alteration of that fundamental safeguard against unlawful custody.”) (internal quotations and citations omitted).