Argument analysis: A quixotic search for the general meaning of state-court summary affirmances
on Oct 31, 2017 at 11:01 am
When a state appeals court affirms a lower-court ruling without an opinion, is it endorsing the decision below? Is it rejecting it? Does the answer depend upon the nature of the lower-court ruling? Does it vary by state? These questions, among others, appeared to vex the justices throughout Monday’s 58-minute argument in Wilson v. Sellers, a complex capital habeas case involving a Georgia prisoner. And although the petitioner, Marion Wilson, appeared at times to have support from a majority of the court, how the justices might rule — and what implications any ruling would have for state courts going forward — was not exactly clear by the end of the session.
The question presented in Wilson arises from tension between two of the Supreme Court’s prior decisions: The justices’ 1991 ruling in Ylst v. Nunnemaker created a presumption that, “[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.” Employing that presumption, a federal habeas court would “look through” an unexplained state-court order and focus its review on the reasoned state-court opinion instead. But in 2011, the court in Harrington v. Richter held that even a summary ruling by a state court can count as an adjudication “on the merits” to which federal habeas courts must defer under the Antiterrorism and Effective Death Penalty Act of 1996, at least where there is no lower state-court ruling providing a clearer rationale. Although Richter distinguished (rather than overruled) Ylst, a 6-5 majority of the en banc U.S. Court of Appeals for the 11th Circuit held that 2011 decision in fact abrogated the Supreme Court’s earlier holding, at least in cases in which it is unclear whether the summary state-court opinion was an affirmance of the lower state court’s denial of relief on the merits.
Arguing on behalf of Wilson, attorney Mark Olive urged the justices to treat the Georgia Supreme Court’s summary refusal to issue a certificate of probable cause to appeal as the type of same-ground affirmance that, under Ylst, a habeas court could and should “look through” in order to review a reasoned (but incorrect) denial of relief by the lower court. The hard question first raised by Justice Samuel Alito, and which he would repeatedly press throughout the argument, is how the justices could be sure of the grounds for the Georgia Supreme Court’s action. In response to a question from Chief Justice John Roberts, Olive suggested that “it is clear that, in this case and in most cases, except when the [Georgia Supreme Court] says otherwise, the court is adopting the facts as set forth in the lower court’s opinion.” Although Alito and several of his colleagues pushed Olive to explain how the Ylst/Richter distinction would apply in cases with less clarity, Olive received a bit of an assist from Justice Stephen Breyer, who suggested that Ylst creates a “presumption,” and that the question is simply when the state can overcome that presumption.
The same theme dominated the argument of Georgia Solicitor General Sarah Hawkins Warren, arguing on behalf of the state. Although Warren attempted to suggest that it is far less clear under Georgia law that the state supreme court’s denial of a certificate of probable cause is typically a merits-based affirmance, that argument provoked substantial push-back from Justices Elena Kagan, Sonia Sotomayor, and Breyer — who may have lost everyone, including himself, in an extended hypothetical about a decision written in 1812 by James Oglethorpe’s “second cousin twice removed.” The larger point that appeared to emerge from the colloquy was concern on the justices’ part that the rule for which the state was advocating would require federal habeas courts to decide if there were any grounds on which the state court’s summary ruling could have rested other than those provided in the reasoned trial-court opinion — and the suggestion, repeated by all four of the justices more openly sympathetic to the petitioner, that the far easier rule would be to assume a summary opinion was on the same basis as the lower court’s ruling absent some indication to the contrary.
Whether that conclusion has a fifth vote was hard to tell from the session, given the relative paucity of questions from Roberts and Justice Anthony Kennedy (who authored Richter). Instead, the only points that seemed clear after the argument were the lack of any appetite among the justices to conclude that Richter categorically overruled Ylst, and the presence of at least some reluctance across the bench to articulate a national (as opposed to state-by-state) rule for which state-court summary decisions federal habeas courts should “look through” under Ylst, and which provide independent grounds for the denial of relief — and, thus, for deference from the federal court — under Richter.