Argument preview: To which state-court adjudications must federal habeas courts defer?
on Oct 23, 2017 at 4:11 pm
In its 2011 decision in Harrington v. Richter, the Supreme Court 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. But the court in Richter specifically distinguished, rather than overruled, its 1991 decision in Ylst v. Nunnemaker, which had erected 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.” Under the Ylst presumption, federal habeas courts are supposed to “look through” the summary state-court ruling to the decision that was actually on the merits of the claim raised in the federal habeas petition. Richter holds that, at least when the Ylst presumption doesn’t apply (i.e., when there is no reasoned state-court decision on the merits issue), a summary state-court ruling still triggers “AEDPA deference.”
The question the justices will consider next Monday in Wilson v. Sellers, a capital case out of Georgia, is whether the Ylst presumption in fact survived Richter. Even though the state of Georgia and the petitioner, Marion Wilson, agreed below that the answer was yes, a 6-5 majority of the en banc U.S. Court of Appeals for the 11th Circuit came to the opposite conclusion. And although the state has since changed its position and is now arguing for affirmance, it may have a difficult time attracting a majority of the Supreme Court to this new and expansive take on Richter.
I. Background
Wilson was convicted and sentenced to death for his role in the 1996 murder of Donovan Parks, an off-duty Georgia corrections officer, in Baldwin County, Georgia. Wilson’s core challenge to his conviction and sentence is that he received ineffective assistance from the lawyers who handled his trial, sentencing and direct appeal. Despite receiving substantial evidence of such ineffective assistance, the state habeas court (the Superior Court of Butts County) denied relief, and the Georgia Supreme Court summarily denied Wilson’s application for a “Certificate of Probable Cause to Appeal” — which was a necessary predicate to Wilson’s appealing the state habeas court’s denial of relief.
Wilson then sought federal habeas relief in the U.S. District Court for the Middle District of Georgia. Although the district court denied relief (concluding that Wilson could not demonstrate “prejudice” under the Supreme Court’s Strickland v. Washington standard for ineffective assistance of counsel), it identified serious flaws not just in the conduct of Wilson’s trial and direct-appellate counsel, but in the reasoning of the Georgia habeas court — and therefore issued a certificate of appealability allowing Wilson to press the matter further. After a three-judge panel of the 11th Circuit denied relief, the court of appeals reheard the matter en banc, appointing an amicus curiae to argue, contra both Wilson and the state, that the Georgia Supreme Court’s denial of Wilson’s CPC — and not the ruling by the habeas court — was the final adjudication on the merits for purposes of AEDPA, and thus the relevant state court decision to review.
Writing for the majority, Judge William Pryor agreed with the amicus, holding first that the Georgia Supreme Court’s denial of a CPC was a “decision on the merits” under AEDPA, and second that Richter therefore overrode Ylst’s “look-through” presumption. As a result, a federal habeas court could only grant relief if the Georgia Supreme Court’s summary denial of a CPC (rather than the detailed opinion of the state habeas court) was “contrary to, or involved an unreasonable application of,” clearly established Supreme Court precedent. Applying that standard (which effectively requires the prisoner to demonstrate that there was no reasonable basis for denying his application), the majority affirmed the denial of Wilson’s petition.
The majority opinion, which created a circuit split with decisions of the U.S. Courts of Appeals for the 4th, 5th, 7th and 9th Circuits, also provoked stern dissents from Judges Adalberto Jordan and Jill Pryor, the latter of whom emphasized not only that the majority’s decision did not follow from Richter, but that it “runs roughshod over the principles of federalism and comity that underlie federal collateral review of state court decisions,” because it gives the back of its hand to the reasoned opinion of the state habeas court in favor of a one-line summary ruling denying permission to pursue a state habeas appeal. Given the circuit split Wilson created and the June 2015 warning from Justices Ruth Bader Ginsburg and Elena Kagan that the 11th Circuit had “plainly erred” in reading Richter as effectively abrogating Ylst, the Supreme Court’s intervention was hardly surprising.
II. The briefs
After certiorari was granted, the state filed a letter with the Supreme Court in which it sought “to clarify [its] position on the merits,” maintaining “that deference under [AEDPA] should be given to the last state court adjudication on the merits, even when that adjudication is unexplained.” That argument forms the core of the state’s merits brief, which adopts many of the lines of analysis from the majority opinion in the en banc court of appeals. Otherwise, the state argues, “requiring a ‘look through’ approach would force a state appellate court ‘to provide a statement of reasons to prevent a federal court, on habeas review, from treating the decision of that state appellate court as a rubberstamp of the opinion below,” and would therefore fly in the face of the principles of federalism and comity on which Richter (and AEDPA itself) are predicated. In an amicus brief spearheaded by Arkansas, 25 states reiterated the comity and federalism arguments, emphasizing that the Ylst “look-through” presumption assumes that a summary denial of an appeal is an endorsement of the decision below—which is “the antithesis of comity.”
Unlike the state’s brief, Wilson’s brief focuses on AEDPA itself — and the extent to which it “encourages and puts a premium on considered state-court exposition of the reasons for decisions adjudicating federal claims” by forcing federal habeas courts to defer to what the “state court knew and did.” Indeed, as Wilson points out in his opening brief, given AEDPA’s high bar to relief, looking through a summary state-court decision to a reasoned opinion by a lower state court will not change the result in the overwhelming majority of cases; it will simply shift the analysis from what the state court might have said to what it actually said — analysis that should actually be less costly and burdensome upon the states, and more respectful of comity and federalism. So construed, the rule adopted by the en banc 11th Circuit majority would, compared to the status quo, only have an impact on federal habeas cases in which the reasoned state-court decision was itself a sufficiently unreasonable application of the relevant Supreme Court precedent to warrant federal habeas relief — and would preclude such relief if there was any other reasonable basis on which the (otherwise silent) appellate court could have rested its affirmance.
III. Conclusion
According to Ginsburg’s opinion respecting the denial of certiorari in Hittson v. Chatman, “Richter makes clear that where the state court’s real reasons can be ascertained, the [AEDPA] analysis can and should be based on the actual ‘arguments or theories [that] supported … the state court’s decision.’” If Richter’s author — Justice Anthony Kennedy — agrees with that characterization of his work, then the question may not be whether Wilson prevails, but whether he attracts more than five votes. After all, as much as the Supreme Court has read AEDPA capaciously to disfavor virtually all federal second-guessing of state court decision-making, the rule for which Georgia is arguing in Wilson asks the court to go even further. Such a rule would instruct federal habeas courts to ignore a reasoned state-court opinion in favor of a summary denial of a right to appeal, and in a capital case with a substantial ineffective-assistance claim to boot. Even if that had always been Georgia’s position, one suspects that it would still be a tough sell.
