Wilson v. Sellers , 138 S. Ct. 1188 ( 2018 )

(Slip Opinion) OCTOBER TERM, 2017 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
WILSON v. SELLERS, WARDEN
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
No. 16–6855. Argued October 30, 2017—Decided April 17, 2018
Petitioner Marion Wilson was convicted of murder and sentenced to
death. He sought habeas relief in Georgia Superior Court, claiming
that his counsel’s ineffectiveness during sentencing violated the Sixth
Amendment. The court denied the petition, in relevant part, because
it concluded that counsel’s performance was not deficient and had not
prejudiced Wilson. The Georgia Supreme Court summarily denied
his application for a certificate of probable cause to appeal. Wilson
subsequently filed a federal habeas petition, raising the same ineffec-
tive-assistance claim. The District Court assumed that his counsel
was deficient but deferred to the state habeas court’s conclusion that
any deficiencies did not prejudice Wilson. The Eleventh Circuit af-
firmed. First, however, the panel concluded that the District Court
was wrong to “look though” the State Supreme Court’s unexplained
decision and assume that it rested on the grounds given in the state
habeas court’s opinion, rather than ask what arguments “could have
supported” the State Supreme Court’s summary decision. The en
banc court agreed with the panel’s methodology.
Held: A federal habeas court reviewing an unexplained state-court de-
cision on the merits should “look through” that decision to the last re-
lated state-court decision that provides a relevant rationale and pre-
sume that the unexplained decision adopted the same reasoning.
The State may rebut the presumption by showing that the unex-
plained decision most likely relied on different grounds than the rea-
soned decision below. Pp. 5–11.
(a) In Ylst v. Nunnemaker, 501 U. S. 797, the Court held that
where there has been one reasoned state judgment rejecting a federal
claim, later unexplained orders upholding that judgment or rejecting
the same claim are presumed to rest upon the same ground. In Ylst,
2 WILSON v. SELLERS
Syllabus
where the last reasoned opinion on the claim explicitly imposed a
procedural default, the Court presumed that a later decision rejecting
the claim did not silently disregard that bar and consider the merits.
Since Ylst, every Circuit to have considered the matter, but for the
Eleventh Circuit, has applied a “look through” presumption even
where the state courts did not apply a procedural bar to review, and
most Circuits applied the presumption prior to Ylst. The presump-
tion is often realistic, for state higher courts often issue summary de-
cisions when they have examined the lower court’s reasoning and
found nothing significant with which they disagree. The presump-
tion also is often more efficiently applied than a contrary approach
that would require a federal court to imagine what might have been
the state court’s supportive reasoning.
The State argues that Harrington v. Richter, 562 U. S. 86, controls
here and that Ylst should apply, at most, where the federal habeas
court is trying to determine whether a state-court decision without
opinion rested on a state procedural ground or whether the state
court reached the merits of a federal issue. Richter, however, did not
directly concern the issue in this case—whether to “look through” the
silent state higher court opinion to the lower court’s reasoned opinion
in order to determine the reasons for the higher court’s decision. In
Richter, there was no lower court opinion to look to. And Richter does
not say that Ylst’s reasoning does not apply in the context of an un-
explained decision on the merits. Indeed, this Court has “looked
though” to lower court decisions in cases involving the merits. See,
e.g., Premo v. Moore, 562 U. S. 115, 123–133. Pp. 5–9.
(b) The State’s further arguments are unconvincing. It points out
that the “look though” presumption may not accurately identify the
grounds for a higher court’s decision. But the “look through” pre-
sumption is not an absolute rule. Additional evidence that might not
be sufficient to rebut the presumption in a case like Ylst, where the
lower court rested on a state-law procedural ground, would allow a
federal court to conclude that counsel has rebutted the presumption
in a case decided on the merits. For instance, a federal court may
conclude that the presumption is rebutted where counsel identifies
convincing alternative arguments for affirmance that were made to
the State’s highest court, or equivalent evidence such as an alterna-
tive ground that is obvious in the state-court record. The State also
argues that this Court does not necessarily presume that a federal
court of appeals’ silent opinion adopts the reasoning of the court be-
low, but that is a different context. Were there to be a “look through”
approach as a general matter in that context, judges and lawyers
might read those decisions as creating, through silence, binding cir-
cuit precedent. Here, a federal court “looks through” the silent deci-
Cite as: 584 U. S. ____ (2018) 3
Syllabus
sion for a specific and narrow purpose, to identify the grounds for the
higher court’s decision as the Antiterrorism and Effective Death Pen-
alty Act requires. Nor does the “look through” approach show disre-
spect for the States; rather, it seeks to replicate the grounds for the
higher state court’s decision. Finally, the “look though” approach is
unlikely to lead state courts to write full opinions where they would
have preferred to decide summarily, at least not to any significant
degree. Pp. 9–11.
834 F. 3d 1227, reversed and remanded.
BREYER, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.
GORSUCH, J., filed a dissenting opinion, in which THOMAS and ALITO,
JJ., joined.
Cite as: 584 U. S. ____ (2018) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–6855
_________________
MARION WILSON, PETITIONER v. ERIC SELLERS,
WARDEN
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[April 17, 2018]
JUSTICE BREYER delivered the opinion of the Court.
The Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA) requires a prisoner who challenges (in a
federal habeas court) a matter “adjudicated on the merits
in State court” to show that the relevant state-court “deci-
sion” (1) “was contrary to, or involved an unreasonable
application of, clearly established Federal law,” or (2) “was
based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceed-
ing.” 28 U. S. C. §2254(d). Deciding whether a state
court’s decision “involved” an unreasonable application of
federal law or “was based on” an unreasonable determina-
tion of fact requires the federal habeas court to “train its
attention on the particular reasons—both legal and fac-
tual—why state courts rejected a state prisoner’s federal
claims,” Hittson v. Chatman, 576 U. S. ___, ___ (2015)
(GINSBURG, J., concurring in denial of certiorari) (slip op.,
at 1), and to give appropriate deference to that decision,
Harrington v. Richter, 562 U. S. 86, 101–102 (2011).
This is a straightforward inquiry when the last state
court to decide a prisoner’s federal claim explains its
2 WILSON v. SELLERS
Opinion of the Court
decision on the merits in a reasoned opinion. In that case,
a federal habeas court simply reviews the specific reasons
given by the state court and defers to those reasons if they
are reasonable. We have affirmed this approach time and
again. See, e.g., Porter v. McCollum, 558 U. S. 30, 39–44
(2009) (per curiam); Rompilla v. Beard, 545 U. S. 374,
388–392 (2005); Wiggins v. Smith, 539 U. S. 510, 523–538
(2003).
The issue before us, however, is more difficult. It con-
cerns how a federal habeas court is to find the state court’s
reasons when the relevant state-court decision on the
merits, say, a state supreme court decision, does not come
accompanied with those reasons. For instance, the deci-
sion may consist of a one-word order, such as “affirmed” or
“denied.” What then is the federal habeas court to do?
We hold that the federal court should “look through” the
unexplained decision to the last related state-court deci-
sion that does provide a relevant rationale. It should then
presume that the unexplained decision adopted the same
reasoning. But the State may rebut the presumption by
showing that the unexplained affirmance relied or most
likely did rely on different grounds than the lower state
court’s decision, such as alternative grounds for affir-
mance that were briefed or argued to the state supreme
court or obvious in the record it reviewed.
I
In 1997 a Georgia jury convicted petitioner, Marion
Wilson, of murder and related crimes. After a sentencing
hearing, the jury sentenced Wilson to death. In 1999 the
Georgia Supreme Court affirmed Wilson’s conviction and
sentence, Wilson v. State, 271 Ga. 811, 525 S. E. 2d 339(1999), and this Court denied his petition for certiorari,
Wilson v. Georgia, 531 U. S. 838 (2000).
Wilson then filed a petition for habeas corpus in a state
court, the Superior Court for Butts County. Among other
Cite as: 584 U. S. ____ (2018) 3
Opinion of the Court
things, he claimed that his counsel was “ineffective” dur-
ing his sentencing, in violation of the Sixth Amendment.
See Strickland v. Washington, 466 U. S. 668, 687 (1984)
(setting forth “two components” of an ineffective-
assistance-of-counsel claim: “that counsel’s performance
was deficient” and “that the deficient performance preju-
diced the defense”). Wilson identified new evidence that
he argued trial counsel should have introduced at sentenc-
ing, namely, testimony from various witnesses about
Wilson’s childhood and the impairment of the frontal lobe
of Wilson’s brain.
After a hearing, the state habeas court denied the peti-
tion in relevant part because it thought Wilson’s evidence
did not show that counsel was “deficient,” and, in any
event, counsel’s failure to find and present the new evi-
dence that Wilson offered had not prejudiced Wilson.
Wilson v. Terry, No. 2001–v–38 (Super. Ct. Butts Cty.,
Ga., Dec. 1, 2008), App. 60–61. In the court’s view, that
was because the new evidence was “inadmissible on evi-
dentiary grounds,” was “cumulative of other testimony,” or
“otherwise would not have, in reasonable probability,
changed the outcome of the trial.” Id., at 61. Wilson
applied to the Georgia Supreme Court for a certificate of
probable cause to appeal the state habeas court’s decision.
But the Georgia Supreme Court denied the application
without any explanatory opinion. Wilson v. Terry, No.
2001–v–38 (May 3, 2010), App. 87, cert. denied, 562 U. S.
1093 (2010).
Wilson subsequently filed a petition for habeas corpus in
the United States District Court for the Middle District of
Georgia. He made what was essentially the same “ineffec-
tive assistance” claim. After a hearing, the District Court
denied Wilson’s petition. Wilson v. Humphrey, No. 5:10–
cv–489 (Dec. 19, 2013), App. 88–89. The court assumed
that Wilson’s counsel had indeed been “deficient” in failing
adequately to investigate Wilson’s background and physi-
4 WILSON v. SELLERS
Opinion of the Court
cal condition for mitigation evidence and to present what
he likely would have found at the sentencing hearing. Id.,
at 144. But, the court nonetheless deferred to the state
habeas court’s conclusion that these deficiencies did not
“prejudice” Wilson, primarily because the testimony of
many witnesses was “cumulative,” and because the evi-
dence of physical impairments did not include any physi-
cal examination or other support that would have shown
the state-court determination was “unreasonable.” Id., at
187; see Richter, 562 U. S., at 111–112.
Wilson appealed to the Court of Appeals for the Elev-
enth Circuit. Wilson v. Warden, 774 F. 3d 671 (2014). The
panel first held that the District Court had used the wrong
method for determining the reasoning of the relevant state
court, namely, that of the Georgia Supreme Court (the
final and highest state court to decide the merits of Wil-
son’s claims). Id., at 678. That state-court decision, the
panel conceded, was made without an opinion. But, the
federal court was wrong to “look through” that decision
and assume that it rested on the grounds given in the
lower court’s decision. Instead of “looking through” the
decision to the state habeas court’s opinion, the federal
court should have asked what arguments “could have
supported” the Georgia Supreme Court’s refusal to grant
permission to appeal. The panel proceeded to identify a
number of bases that it believed reasonably could have
supported the decision. Id., at 678–681.
The Eleventh Circuit then granted Wilson rehearing en
banc so that it could consider the matter of methodology.
Wilson v. Warden, 834 F. 3d 1227 (2016). Ultimately six
judges (a majority) agreed with the panel and held that its
“could have supported” approach was correct. Id., at 1235.
Five dissenting judges believed that the District Court
should have used the methodology it did use, namely, the
“look through” approach. Id., at 1242–1247, 1247–1269.
Wilson then sought certiorari here. Because the Eleventh
Cite as: 584 U. S. ____ (2018) 5
Opinion of the Court
Circuit’s opinion creates a split among the Circuits, we
granted the petition. Compare id., at 1285 (applying
“could have supported” approach), with Grueninger v.
Director, Va. Dept. of Corrections, 813 F. 3d 517, 525–526
(CA4 2016) (applying “look through” presumption post-
Richter), and Cannedy v. Adams, 706 F. 3d 1148, 1156–
1159 (CA9 2013) (same); see also Clements v. Clarke, 592
F. 3d 45, 52 (CA1 2010) (applying “look through” presump-
tion pre-Richter); Bond v. Beard, 539 F. 3d 256, 289–290
(CA3 2008) (same); Mark v. Ault, 498 F. 3d 775, 782–783
(CA8 2007) (same); Joseph v. Coyle, 469 F. 3d 441, 450
(CA6 2006) (same).
II
We conclude that federal habeas law employs a “look
through” presumption. That conclusion has parallels in
this Court’s precedent. In Ylst v. Nunnemaker, a defend-
ant, convicted in a California state court of murder, ap-
pealed his conviction to the state appeals court where he
raised a constitutional claim based on Miranda v. Arizona,
384 U. S. 436 (1966). 501 U. S. 797, 799–800 (1991). The
appeals court rejected that claim, writing that “ ‘an objec-
tion based upon a Miranda violation cannot be raised for
the first time on appeal.’ ” Id., at 799. The defendant then
similarly challenged his conviction in the California Su-
preme Court and on collateral review in several state
courts (including once again the California Supreme
Court). In each of these latter instances the state court
denied the defendant relief (or review). In each instance
the court did so without an opinion or other explanation.
Id., at 799–800.
Subsequently, the defendant asked a federal habeas
court to review his constitutional claim. Id., at 800. The
higher state courts had given no reason for their decision.
And this Court ultimately had to decide how the federal
court was to find the state court’s reasoning in those cir-
6 WILSON v. SELLERS
Opinion of the Court
cumstances. Should it have “looked through” the unrea-
soned decisions to the state procedural ground articulated
in the appeals court or should it have used a different
method?
In answering that question Justice Scalia wrote the
following for the Court:
“The problem we face arises, of course, because many
formulary orders are not meant to convey anything as
to the reason for the decision. Attributing a reason is
therefore both difficult and artificial. We think that
the attribution necessary for federal habeas purposes
can be facilitated, and sound results more often as-
sured, by applying the following presumption: Where
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. If an earlier opinion ‘fairly ap-
pear[s] to rest primarily upon federal law,’ we will
presume that no procedural default has been invoked
by a subsequent unexplained order that leaves the
judgment or its consequences in place. Similarly
where, as here, the last reasoned opinion on the claim
explicitly imposes a procedural default, we will pre-
sume that a later decision rejecting the claim did not
silently disregard that bar and consider the merits.”
Id., at 803 (citation omitted).
Since Ylst, every Circuit to have considered the matter
has applied this presumption, often called the “look
through” presumption, but for the Eleventh Circuit—even
where the state courts did not apply a procedural bar to
review. See supra, at 4–5. And most Federal Circuits
applied it prior to Ylst. See Ylst, supra, at 803 (citing
Prihoda v. McCaughtry, 910 F. 2d 1379, 1383 (CA7 1990);
Harmon v. Barton, 894 F. 2d 1268, 1272 (CA11 1990);
Evans v. Thompson, 881 F. 2d 117, 123, n. 2 (CA4 1989);
Cite as: 584 U. S. ____ (2018) 7
Opinion of the Court
Ellis v. Lynaugh, 873 F. 2d 830, 838 (CA5 1989)).
That is not surprising in light of the fact that the “look
through” presumption is often realistic, for state higher
courts often (but certainly not always, see Redmon v.
Johnson, 2018 WL 415714 (Ga., Jan. 16, 2018)) write
“denied” or “affirmed” or “dismissed” when they have
examined the lower court’s reasoning and found nothing
significant with which they disagree.
Moreover, a “look through” presumption is often (but not
always) more efficiently applied than a contrary ap-
proach—an approach, for example, that would require a
federal habeas court to imagine what might have been the
state court’s supportive reasoning. The latter task may
prove particularly difficult where the issue involves state
law, such as state procedural rules that may constrain the
scope of a reviewing court’s summary decision, a matter in
which a federal judge often lacks comparative expertise.
See Ylst, supra, at 805.
The State points to a later case, Harrington v. Richter,
562 U. S. 86 (2011), which, it says, controls here instead of
Ylst. In its view, Ylst should apply, at most, to cases in
which the federal habeas court is trying to determine
whether a state-court decision without opinion rested on a
state procedural ground (for example, a procedural de-
fault) or whether the state court has reached the merits of
a federal issue. In support, it notes that Richter held that
the state-court decisions to which AEDPA refers include
summary dispositions, i.e., decisions without opinion.
Richter added that “determining whether a state court’s
decision resulted from an unreasonable legal or factual
conclusion does not require that there be an opinion from
the state court explaining the state court’s reasoning.”
562 U. S., at 98.
Richter then said that, where “a state court’s decision is
unaccompanied by an explanation, the habeas petitioner’s
burden still must be met by showing there was no reason-
8 WILSON v. SELLERS
Opinion of the Court
able basis for the state court to deny relief.” Ibid. And the
Court concluded that, when “a federal claim has been
presented to a state court and the state court has denied
relief, it may be presumed that the state court adjudicated
the claim on the merits in the absence of any indication or
state-law procedural principles to the contrary.” Id., at 99.
In our view, however, Richter does not control here. For
one thing, Richter did not directly concern the issue before
us—whether to “look through” the silent state higher court
opinion to the reasoned opinion of a lower court in order to
determine the reasons for the higher court’s decision.
Indeed, it could not have considered that matter, for in
Richter, there was no lower court opinion to look to. That
is because the convicted defendant sought to raise his
federal constitutional claim for the first time in the Cali-
fornia Supreme Court (via a direct petition for habeas
corpus, as California law permits). Id., at 96.
For another thing, Richter does not say the reasoning of
Ylst does not apply in the context of an unexplained deci-
sion on the merits. To the contrary, the Court noted that
it was setting forth a presumption, which “may be over-
come when there is reason to think some other explana-
tion for the state court’s decision is more likely.” Richter,
supra, at 99–100. And it referred in support to Ylst, 501
U. S., at 803.
Further, we have “looked through” to lower court deci-
sions in cases involving the merits. See, e.g., Premo v.
Moore, 562 U. S. 115, 123–133 (2011); Sears v. Upton,
561 U. S. 945, 951–956 (2010) (per curiam). Indeed, we de-
cided one of those cases, Premo, on the same day we decided
Richter. And in our opinion in Richter we referred to
Premo. 562 U. S., at 91. Had we intended Richter’s “could
have supported” framework to apply even where there is a
reasoned decision by a lower state court, our opinion in
Premo would have looked very different. We did not even
cite the reviewing state court’s summary affirmance.
Cite as: 584 U. S. ____ (2018) 9
Opinion of the Court
Instead, we focused exclusively on the actual reasons
given by the lower state court, and we deferred to those
reasons under AEDPA. 562 U. S., at 132 (“The state
postconviction court’s decision involved no unreasonable
application of Supreme Court precedent”).
III
The State’s further arguments do not convince us. The
State points out that there could be many cases in which a
“look through” presumption does not accurately identify
the grounds for the higher court’s decision. And we agree.
We also agree that it is more likely that a state supreme
court’s single word “affirm” rests upon alternative grounds
where the lower state court decision is unreasonable than,
e.g., where the lower court rested on a state-law proce-
dural ground, as in Ylst. But that is why we have set forth a
presumption and not an absolute rule. And the unreason-
ableness of the lower court’s decision itself provides some
evidence that makes it less likely the state supreme court
adopted the same reasoning. Thus, additional evidence
that might not be sufficient to rebut the presumption in a
case like Ylst would allow a federal court to conclude that
counsel has rebutted the presumption in a case like this
one. For instance, a federal habeas court may conclude
that counsel has rebutted the presumption on the basis of
convincing alternative arguments for affirmance made to
the State’s highest court or equivalent evidence presented
in its briefing to the federal court similarly establishing
that the State’s highest court relied on a different ground
than the lower state court, such as the existence of a valid
ground for affirmance that is obvious from the state-court
record. The dissent argues that the Georgia Supreme
Court’s recent decision in Redmon v. Johnson rebuts the
presumption in Georgia because that court indicated its
summary decisions should not be read to adopt the lower
court’s reasoning. Post, at 6–8, 10–11 (opinion of
10 WILSON v. SELLERS
Opinion of the Court
GORSUCH, J.). This misses the point. A presumption that
can be rebutted by evidence of, for instance, an alternative
ground that was argued or that is clear in the record was
the likely basis for the decision is in accord with full and
proper respect for state courts, like those in Georgia,
which have well-established systems and procedures in
place in order to ensure proper consideration to the argu-
ments and contention in the many cases they must process
to determine whether relief should be granted when a
criminal conviction or its ensuing sentence is challenged.
The State also points out that we do not necessarily
presume that a silent opinion of a federal court of appeals
adopts the reasoning of the court below. The dissent
similarly invokes these “traditional rules of appellate
practice.” See post, at 5–6, 10. But neither the State nor
the dissent provides examples of similar context. Were we
to adopt a “look through” approach in respect to silent
federal appeals court decisions as a general matter in
other contexts, we would risk judges and lawyers reading
those decisions as creating, through silence, a precedent
that could be read as binding throughout the circuit—just
what a silent decision may be thought not to do. Here,
however, we “look through” the silent decision for a spe-
cific and narrow purpose—to identify the grounds for the
higher court’s decision, as AEDPA directs us to do. See
supra, at 1–2. We see no reason why the federal court’s
interpretation of the state court’s silence should be taken
as binding precedent outside this context, for example, as
a statewide binding interpretation of state law.
Further, the State argues that the “look through” ap-
proach shows disrespect for the States. See Brief for
Respondent 39 (“Wilson’s approach to summary decisions
reflects an utter lack of faith in the ability of the highest
state courts to adjudicate constitutional rights”). We do
not believe this is so. Rather the presumption seeks to
replicate the grounds for the higher state court’s decision.
Cite as: 584 U. S. ____ (2018) 11
Opinion of the Court
Where there are convincing grounds to believe the silent
court had a different basis for its decision than the analy-
sis followed by the previous court, the federal habeas court
is free, as we have said, to find to the contrary. In our
view, this approach is more likely to respect what the
state court actually did, and easier to apply in practice,
than to ask the federal court to substitute for silence the
federal court’s thought as to more supportive reasoning.
Finally, the State argues that the “look through” ap-
proach will lead state courts to believe they must write full
opinions where, given the workload, they would have
preferred to have decided summarily. Though the matter
is empirical, given the narrowness of the context, we do
not believe that they will feel compelled to do so—at least
not to any significant degree. The State offers no such
evidence in the many Circuits that have applied Ylst
outside the procedural context. See supra, at 5.
For these reasons, we reverse the Eleventh Circuit’s
judgment and remand the case for further proceedings
consistent with this opinion.
It is so ordered.
Cite as: 584 U. S. ____ (2018) 1
GORSUCH, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–6855
_________________
MARION WILSON, PETITIONER v. ERIC SELLERS,
WARDEN
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[April 17, 2018]
JUSTICE GORSUCH, with whom JUSTICE THOMAS and
JUSTICE ALITO join, dissenting.
After a state supreme court issues a summary order
sustaining a criminal conviction, should a federal habeas
court reviewing that decision presume it rests only on the
reasons found in a lower state court opinion? The answer
is no. The statute governing federal habeas review per-
mits no such “look through” presumption. Nor do tradi-
tional principles of appellate review. In fact, we demand
the opposite presumption for our work—telling readers
that we independently review each case and that our
summary affirmances may be read only as signaling
agreement with a lower court’s judgment and not neces-
sarily its reasons. Because I can discern no good reason to
treat the work of our state court colleagues with less
respect than we demand for our own, I would reject peti-
tioner’s presumption and must respectfully dissent.
Even so, some good news can be found here. While the
Court agrees to adopt a “look through” presumption, it
does so only after making major modifications to petition-
er’s proposal. The Court tells us that the presumption
should count for little in cases “where the lower state court
decision is unreasonable” because it is not “likely” a state
supreme court would adopt unreasonable reasoning.
Ante, at 9. In cases like that too, the Court explains,
2 WILSON v. SELLERS
GORSUCH, J., dissenting
federal courts remain free to sustain state court convic-
tions whenever reasonable “ground[s] for affirmance [are]
obvious from the state-court record” or appear in the
parties’ submissions in state court or the federal habeas
proceeding. Ibid. Exactly right, and exactly what the law
has always demanded. So while the Court takes us on a
journey through novel presumptions and rebuttals, it
happily returns us in the end very nearly to the place
where we began and belonged all along.
*
To see the problem with petitioner’s presumption, start
with the statute. The Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA) governs federal review of
state criminal convictions. It says a federal court may not
grant habeas relief overturning a state court conviction
“with respect to any claim that was adjudicated on the
merits in State court proceedings” unless (among other
things) the petitioner can show that the state court pro-
ceedings “resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly estab-
lished Federal law.” 28 U. S. C. §2254(d)(1). As the text
and our precedent make clear, a federal habeas court must
focus its review on the final state court decision on the
merits, not any preceding decision by an inferior state
court. See Greene v. Fisher, 565 U. S. 34, 40 (2011). Nor
does it matter whether the final state court decision comes
with a full opinion or in a summary order: the same defer-
ence is due all final state court decisions. Harrington v.
Richter, 562 U. S. 86, 98 (2011); Cullen v. Pinholster, 563
U. S. 170, 187 (2011).
The upshot of these directions is clear. Even when the
final state court decision “is unaccompanied by an expla-
nation, the habeas petitioner’s burden still must be met by
showing there was no reasonable basis for the state court
to deny relief.” Richter, 562 U. S., at 98 (emphasis added).
Cite as: 584 U. S. ____ (2018) 3
GORSUCH, J., dissenting
And before a federal court can disregard a final summary
state court decision, it “must determine what arguments
or theories . . . could have supporte[d] the state court’s
decision; and then it must ask whether it is possible fair-
minded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior deci-
sion of this Court.” Id., at 102 (emphasis added). Far
from suggesting federal courts should presume a state
supreme court summary order rests on views expressed in
a lower court’s opinion, then, AEDPA and our precedents
require more nearly the opposite presumption: federal
courts must presume the order rests on any reasonable
basis the law and facts allow.
If this standard seems hard for a habeas petitioner to
overcome, “that is because it was meant to be.” Ibid. In
AEDPA, Congress rejected the notion that federal habeas
review should be “a substitute for ordinary error correc-
tion.” Id., at 102–103. Instead, AEDPA “reflects the view
that habeas corpus is a ‘guard against extreme malfunc-
tions in the state criminal justice systems.’ ” Id., at 102(emphasis added). “The reasons for this approach are
familiar. ‘Federal habeas review of state convictions
frustrates both the States’ sovereign power to punish
offenders and their good-faith attempts to honor constitu-
tional rights.’ It ‘disturbs the State’s significant interest
in repose for concluded litigation, denies society the right
to punish some admitted offenders, and intrudes on state
sovereignty to a degree matched by few exercises of federal
judicial authority.’ ” Id., at 103 (citations omitted).
Petitioner and the Court today labor to distinguish
these authorities, but I don’t see how they might succeed.
They point to the fact that in Richter no state court had
issued a reasoned order, while here a lower state court
did. See Brief for Petitioner 28–30; ante, at 8. But on
what account of AEDPA or Richter does that factual dis-
tinction make a legal difference? Both the statute and our
4 WILSON v. SELLERS
GORSUCH, J., dissenting
precedent explain that federal habeas review looks to the
final state court decision, not any decision preceding it.
Both instruct that to dislodge the final state court decision
a petitioner must prove it involved an unreasonable appli-
cation of federal law. And to carry that burden in the face
of a final state court summary decision, Richter teaches
that the petitioner must show no lawful basis could have
reasonably supported it. To observe that some final state
court summary decisions are preceded by lower court
reasoned opinions bears no more relevance to the AEDPA
analysis than to say that some final state court summary
decisions are issued on Mondays. 1
Unable to distinguish Richter, petitioner seeks to con-
fine it by caricature. Because that case requires a federal
court to “imagine” its own arguments for denying habeas
relief and engage in “decision-making-by-hypothetical,” he
argues it should be limited to its facts. Brief for Petitioner
28–30, 33; Reply Brief 9. But the Court today does not
adopt petitioner’s characterization, and for good reason:
Richter requires no such thing. In our adversarial system
——————
1 Petitioner and the Court separately suggest that Premo v. Moore,
562 U. S. 115 (2011), supports their position because the Court there
did not follow Richter’s approach. See Brief for Petitioner 40; ante, at
8–9. But the following sentences from Moore (with emphasis added)
are clear proof it did: “ ‘[t]he question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard,’ ” 562
U. S., at 123 (quoting Richter); “[t]o overcome the limitation imposed by
§2254(d), the Court of Appeals had to conclude that both findings [i.e.,
no deficient performance and no prejudice] would have involved an
unreasonable application of clearly established law,” ibid. (citing
Richter); “[t]he state court here reasonably could have determined that
[no prejudice existed],” id., at 129. Moore simply found that a reason-
able basis—provided by a state postconviction court—could (and did)
support the denial of habeas relief. Id., at 123. It did not rely on an
unreasonable basis provided by a lower court to grant habeas relief, as
petitioner seeks to have us do. Moore thus accords with AEDPA and
our precedents, while petitioner’s presumption does not.
Cite as: 584 U. S. ____ (2018) 5
GORSUCH, J., dissenting
a federal court generally isn’t required to imagine or hy-
pothesize arguments that neither the parties before it nor
any lower court has presented. To determine if a reason-
able basis “could have supported” a summary denial of
habeas relief under Richter, a federal court must look to
the state lower court opinion (if there is one), any argu-
ment presented by the parties in the state proceedings,
and any argument presented in the federal habeas pro-
ceeding. Of course, a federal court sometimes may con-
sider on its own motion alternative bases for denying habeas
relief apparent in the law and the record, but it does not
generally bear an obligation to do so. See Wood v. Mil-
yard, 566 U. S. 463, 471–473 (2012) (discussing Day v.
McDonough, 547 U. S. 198 (2006), and Granberry v. Greer,
481 U. S. 129 (1987)).
Nor is that the end of the problems with petitioner’s
“look through” presumption. It also defies traditional
rules of appellate practice that informed Congress’s work
when it adopted AEDPA and that should inform our work
today. McQuiggin v. Perkins, 569 U. S. 383, 398, n. 3
(2013). Appellate courts usually have an independent
duty to review the facts and law in the cases that come to
them. Often they see errors in lower court opinions. But
often, too, they may affirm on alternative bases either
argued by the parties or (sometimes) apparent to them on
the face of the record. See, e.g., SEC v. Chenery Corp., 318
U. S. 80, 88 (1943) (noting “the settled rule that, in review-
ing the decision of a lower court, it must be affirmed if the
result is correct ‘although the lower court relied upon a
wrong ground or gave a wrong reason’ ”); Wood, supra, at
473. And a busy appellate court sometimes may not see
the profit in devoting its limited resources to explaining
the error and the alternative basis for affirming when the
outcome is sure to remain the same, so it issues a sum-
mary affirmance instead. To reflect these realities, this
Court has traditionally warned readers against presuming
6 WILSON v. SELLERS
GORSUCH, J., dissenting
our summary affirmance orders rest on reasons articulated
in lower court opinions. Comptroller of Treasury of Md.
v. Wynne, 575 U. S. ___, ___–___ (2015) (slip op., at 16–17)
(“ ‘[A] summary affirmance is an affirmance of the judg-
ment only,’ and ‘the rationale of the affirmance may not be
gleaned solely from the opinion below’ ”); Mandel v. Brad-
ley, 432 U. S. 173, 176 (1977) (per curiam). The courts of
appeals have issued similar warnings for similar reasons
about their own summary orders. See, e.g., Rates Tech-
nology, Inc. v. Mediatrix Telecom, Inc., 688 F. 3d 742, 750
(CA Fed. 2012); DeShong v. Seaboard Coast Line R. Co.,
737 F. 2d 1520, 1523 (CA11 1984). And respect for this
traditional principle of appellate practice surely weighs
against presuming a state court’s summary disposition
rests solely on a lower court’s opinion. On what account
could we reasonably demand more respect for our sum-
mary decisions than we are willing to extend to those of
our state court colleagues?
Petitioner and the Court offer only this tepid reply.
They suggest that their “look through” presumption seeks
to reflect “realistic[ally]” the basis on which the state
summary decision rests. See Brief for Petitioner 44; ante,
at 7. But to the extent this is a claim that their presump-
tion comports realistically with longstanding traditions of
appellate practice, it is wrong for the reasons just laid out.
In fact, applying traditional understandings of appellate
practice, this Court has refused to presume that state
appellate courts even read lower court opinions rather
than just the briefs before them. See Baldwin v. Reese,
541 U. S. 27, 31 (2004). And surely it is a mystery how the
Court might today presume state supreme courts rely on
that which it traditionally presumes they do not read.
If the argument here is instead an empirical claim that
the “look through” presumption comports realistically with
what happened in this case and others like it, it is wrong
too. Petitioner was convicted in Georgia. And during the
Cite as: 584 U. S. ____ (2018) 7
GORSUCH, J., dissenting
pendency of this case in our Court, the Georgia Supreme
Court issued an order confirming that lower courts in that
State may not “presum[e] that when this Court summarily
denies an application to appeal an order denying habeas
corpus relief, we necessarily agree with everything said in
that order.” Redmon v. Johnson, 809 S. E. 2d 468, 472
(Ga. 2018). The court explained that it has long followed
just this rule for all the reasons you’d expect. It inde-
pendently reviews the facts and law in each habeas case.
If it finds something it thinks might amount to a conse-
quential error, the court sets the case for argument and
usually prepares a full opinion. But “[o]n many occa-
sions,” the court finds only “inconsequential errors.” Id.,
at 471. 2 And in these cases the court normally issues a
——————
2 Inlanguage that will sound familiar to all judges and lawyers in-
volved in litigating habeas claims, the Georgia Supreme Court ex-
plained that “[t]here are many examples of inconsequential errors, but
among the most common are the following:
• The habeas court rejects a claim both on a procedural ground and,
alternatively, on the substantive merits. This Court determines
that one of those rulings appears factually or legally erroneous, but
the other is correct, so an appeal would result in the habeas court’s
judgment being affirmed on the correct ground.
• In addressing an ineffective assistance of counsel claim under
Strickland v. Washington, 466 U. S. 668 (1984), the habeas court
rules that counsel did not perform deficiently as alleged. That rul-
ing appears to be erroneous, but this Court determines based on
our review of the record that no prejudice resulted from the defi-
cient performance, so an appeal would result in affirming the ha-
beas court’s judgment. See id., at 697; Rozier v. Caldwell, 300 Ga.
30, 31–32 (2016).
• In addressing other claims that require the petitioner to prove each
element of a multi-part test, such as a claim under Brady v. Mary-
land, 373 U. S. 83 (1963), the habeas court makes factual or legal
errors regarding the petitioner’s proof of one element but correctly
concludes (or the record clearly shows) that the petitioner has not
proved another required element. An appeal would result in this
Court’s affirming the habeas court’s judgment.
8 WILSON v. SELLERS
GORSUCH, J., dissenting
summary affirmance because the costs associated with full
treatment of the appeal outweigh the benefits of correcting
what is at most harmless error, especially given the court’s
heavy caseload and the need to attend to more consequen-
tial matters. 3 Petitioner’s presumption thus does not seek
to reflect reality; it seeks to deny it.
The presumption is especially unrealistic in another
way. The Court and petitioner presume that a summary
order by a state supreme court adopts all the specific
reasons expressed by a lower state court. In doing so, they
disregard a far more realistic possibility: that the state
supreme court might have relied only on the same grounds
for the denial of relief as did the lower court without nec-
essarily adopting all its reasoning. Here, the lower state
court denied petitioner’s Strickland claim on the grounds
that counsel’s performance was not deficient and peti-
tioner suffered no prejudice. And it gave several reasons for
——————
•The habeas court misstates a legal standard in one part of its or-
der, but recites the standard correctly elsewhere in the order, and
it is clear that the judgment is correct applying the right standard.
• In addressing a habeas petition with multitudinous claims, the
habeas court’s order fails to explicitly rule on a claim, but the rec-
ord shows that the claim is entirely meritless.” Redmon, 809
S. E. 2d, at 471 (some citations omitted).
3 “[T]he burdens of invoking the full appellate process, including writ-
ing opinions simply to point out factual or legal errors that do not affect
the judgment, are significant for this Court. We issue about 350
published opinions each year, all en banc, meaning that each Justice
(seven of us until 2017, nine now) must evaluate an opinion a day and
author 35 to 50 majority opinions a year, with the help of only two law
clerks in each chambers. Moreover, the Georgia Constitution requires
this Court to issue its decision within the two terms of court after an
appeal is docketed (which means within about eight months, given our
three terms per year). . . . And our reasoned decisions are precedent
binding on all other Georgia courts, . . . so issuing opinions where the
relevant law is already well-established runs the risk of creating
inconsistencies.” Redmon, 809 S. E. 2d, at 472.
Cite as: 584 U. S. ____ (2018) 9
GORSUCH, J., dissenting
its conclusions: for example, the evidence petitioner sought
to admit “would have been inadmissible on evidentiary
grounds, cumulative of other testimony, or otherwise
would not have, in reasonable probability, changed the
outcome of the trial.” App. 61. In summarily denying
relief, the state supreme court might have reached the
same conclusions (no deficient performance and no preju-
dice) without resting on the exact same reasons.
While the “look through” presumption cannot be
squared with AEDPA’s text, traditional rules, or Georgia’s
actual practice, petitioner and the Court contend it is at
least consistent with Ylst v. Nunnemaker, 501 U. S. 797(1991). See Brief for Petitioner 38; ante, at 5–8. But it is
not. In habeas review of state court convictions, federal
courts may only review questions of federal law. So if a
state court decision rejecting a petitioner’s federal law
claim rests on a state procedural defect (say the petitioner
filed too late under state rules), federal courts generally
have no authority to reach the federal claim. Ylst simply
teaches that, if a lower state court opinion expressly relied
on an independent and adequate state ground, we should
presume a later state appellate court summary disposition
invoked it too. See 501 U. S., at 801, 803. The decision
thus seeks to protect state court decisions from displace-
ment and reaches a result consistent with the traditional
rule that a summary order invokes all fairly presented
bases for affirmance.
Neither can Ylst be reimagined today as meaning any-
thing more. The case came years before AEDPA’s new
standards for habeas review and can offer nothing useful
about them. The work of interpreting AEDPA’s demands
was left instead to Richter. And, as we’ve seen, Richter
forecloses petitioner’s presumption. Of course, and as
petitioner stresses, Richter didn’t overrule Ylst. But that’s
for the simple reason that Ylst continues to do important,
if limited, work in the disposition of procedural default
10 WILSON v. SELLERS
GORSUCH, J., dissenting
claims because “AEDPA did not change the application of
pre-AEDPA procedural default principles.” B. Means,
Federal Habeas Manual §9B:3 (2017).
Uncomfortable questions follow too from any effort to
reimagine Ylst. If we were to take Ylst as suggesting that
summary decisions presumptively rely only on the reasons
found in lower court opinions, wouldn’t we have to over-
rule our many precedents like Wynne and Mandel that
explicitly reject any such presumption? Wouldn’t circuit
courts have to discard their own similar precedents? See
supra, at 5–6. Consistency would seem to demand no less.
The only answer petitioner and the Court offer is no
answer at all. Consistency, they suggest, is overrated.
Everywhere else in the law we should retain the usual rule
that a summary affirmance can’t be read as presumptively
resting on the lower court’s reasons. They encourage us to
use Ylst only as a tool for making a special exception for
AEDPA cases: here and here alone should we adopt peti-
tioner’s “look through” presumption. Brief for Petitioner
18, 20; ante, at 10 (stating that “we ‘look through’ the
silent decision for a specific and narrow purpose” under
AEDPA). But just stating this good-for-habeas-only rule
should be enough to reject it. Summary orders that hap-
pen to arise in state habeas cases should receive no less
respect than those that arise anywhere else in the law. If
anything, they should receive more respect, because federal
habeas review of state court decisions “ ‘intrudes on
state sovereignty to a degree matched by few exercises of
federal judicial authority.’ ” Richter, 562 U. S., at 103.
*
Petitioner’s novel presumption not only lacks any prov-
enance in the law, it promises nothing for its trouble.
Consider the most obvious question it invites, one sug-
gested by the facts of our own case: what happens when a
state supreme court issues an order explaining that its
Cite as: 584 U. S. ____ (2018) 11
GORSUCH, J., dissenting
summary affirmances do not necessarily adopt the reasons
in lower court opinions? Should that be enough to rebut
the “look through” presumption? After defending the
presumption, even the dissent in the Eleventh Circuit
decision under review recognized that a disclaimer along
these lines should suffice to rebut it. See Wilson v. War-
den, 834 F. 3d 1227, 1263 (2016) (en banc) (opinion of J.
Pryor, J.) (“The Georgia Supreme Court could simply issue
a one-line order denying an application for a certificate of
probable cause that indicates agreement with the result
the superior court reached but not the lower court’s rea-
sons for rejecting the petitioner’s claim”). And, of course,
the Georgia Supreme Court has recently responded to the
dissent’s invitation by issuing just such a disclaimer. So
in the end petitioner’s presumption seems likely to accom-
plish nothing for him and only needless work for others—
inducing more state supreme courts to churn out more
orders restating the obvious fact that their summary
dispositions don’t necessarily rest on the reasons given by
lower courts. Along the way, too, it seems federal courts
will have their hands full. For while the Eleventh Circuit
dissent had no difficulty acknowledging that an order like
Georgia’s suffices to overcome petitioner’s presumption,
the Court today refuses to supply the same obvious
answer.
Consider, too, the questions that would follow in the
unlikely event a general order like the one from the Geor-
gia Supreme Court wasn’t considered enough to overcome
petitioner’s presumption. Quickly federal courts would be
forced to decide: does the “look through” presumption
survive even when a state supreme court includes lan-
guage in every summary order explaining that its decision
does not necessarily adopt the reasoning below? What if
the state supreme court says something slightly different
but to the same effect, declaring in each case that it has
independently considered the relevant law and evidence
12 WILSON v. SELLERS
GORSUCH, J., dissenting
before denying relief? And if we start dictating what state
court disclaimers should look like and where they should
appear, what exactly is left of Congress’s direction that
our review is intended to guard only against “ ‘extreme
malfunctions’ ” in state criminal justice systems? Richter,
supra, at 102. Wouldn’t we be slipping into the business of
“tell[ing] state courts how they must write their opinions,”
something this Court has long said federal habeas courts
“have no power” to do? Coleman v. Thompson, 501 U. S.
722, 739 (1991).
Apart from whether a (general or case-specific) order
from a state supreme court suffices to overcome petition-
er’s presumption, there’s the question what else might.
Say a lower state court opinion includes an error but the
legal briefs or other submissions presented to the state
supreme court supply sound alternative bases for affir-
mance. In those circumstances, should a federal habeas
court really presume that the state supreme court chose to
repeat the lower court’s mistake rather than rely on the
solid grounds argued to it by the parties? What if a sound
alternative basis for affirmance is presented for the first
time in the parties’ federal habeas submissions: are we to
presume that the state supreme court was somehow less
able to identify a reasonable basis for affirmance than
federal habeas counsel?
Here at least the Court does offer an answer. Petitioner
insists that federal courts should presume that state
supreme court summary orders rest on unreasonable lower
state court opinions even in the face of reasonable alterna-
tive arguments presented to the state supreme court or in
federal habeas proceedings. But seeming to recognize the
unreasonableness of this request, the Court opts to re-
shape radically petitioner’s proposed presumption before
adopting it. First, the Court states that “it is more likely
that a state supreme court’s single word ‘affirm’ rests upon
alternative grounds where the lower state court decision is
Cite as: 584 U. S. ____ (2018) 13
GORSUCH, J., dissenting
unreasonable.” Ante, at 9. Then, the Court proceeds to
explain that “a federal habeas court may conclude that
counsel has rebutted the presumption on the basis of
convincing alternative arguments for affirmance made to
the State’s highest court or equivalent evidence presented
in its briefing to the federal court similarly establishing
that the State’s highest court relied on a different ground
than the lower state court, such as the existence of a valid
ground for affirmance that is obvious from the state-court
record.” Ibid.The Court’s reshaping of petitioner’s presumption re-
veals just how futile this whole business really is. If, as
the Court holds, the “look through” presumption can be
rebutted “where the lower state court decision is unrea-
sonable,” ibid., it’s hard to see what good it does. Peti-
tioner sought to assign unreasonable lower court opinions to
final state court summary decisions. To hear now that
essentially only reasonable (and so sustainable) lower
state court opinions are presumptively adopted by final
state court summary decisions will surely leave him sour
on this journey and federal habeas courts scratching their
heads about the point of it all. And if, as the Court also
tells us, a federal habeas court can always deny relief on a
basis that is apparent from the record or on the basis of
alternative arguments presented by the parties in state or
federal proceedings, then the “look through” presumption
truly means nothing and we are back where we started.
With the Court’s revisions to petitioner’s presumption, a
federal habeas court is neither obliged to look through
exclusively to the reasons given by a lower state court, nor
required to presume that a summary order adopts those
reasons.
All this is welcome news of a sort. The Court may prom-
ise us a future of foraging through presumptions and
rebuttals. But at least at the end of it we rest knowing
that what was true before remains true today: a federal
14 WILSON v. SELLERS
GORSUCH, J., dissenting
habeas court should look at all the arguments presented in
state and federal court and examine the state court record.
And a federal habeas court should sustain a state court
summary decision denying relief if those materials reveal
a basis to do so reasonably consistent with this Court’s
holdings. Exactly what a federal court applying the stat-
ute and Richter has had to do all along. See supra, at 2–5.
And exactly what the Eleventh Circuit correctly held it
had to do in this case.
*
Today, petitioner invites us to adopt a novel presump-
tion that AEDPA, traditional principles of appellate re-
view, and Georgia practice all preclude. It’s an invitation
that requires us to treat the work of state court colleagues
with disrespect we would not tolerate for our own. And all
to what end? None at all, it turns out. As modified by the
Court, petitioner’s presumption nearly drops us back
where we began, with only trouble to show for the effort.
Respectfully, I would decline the invitation to this circui-
tous journey and just affirm.