Marion Wilson, Jr. v. Warden

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10681
________________________
D.C. Docket No. 5:10-cv-00489-MTT
MARION WILSON, JR.,
Petitioner-Appellant,
versus
WARDEN, GEORGIA DIAGNOSTIC PRISON,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(August 23, 2016)
Before ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON,
WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES, and
JILL PRYOR, Circuit Judges.
WILLIAM PRYOR, Circuit Judge:
This appeal requires us to decide whether, when a federal court reviews a
state prisoner’s petition for a writ of habeas corpus, it must “look through” a
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summary decision on the merits by a state appellate court to review the last
reasoned decision. Marion Wilson, Jr., a Georgia prisoner sentenced to death for
the murder of Donovan Parks in 1996, filed a petition for a writ of habeas corpus in
the Superior Court of Butts County, Georgia. That court denied his petition in a
written opinion. Wilson sought to appeal that decision, and the Supreme Court of
Georgia summarily denied his application for a certificate of probable cause to
appeal. The district court then denied Wilson’s federal petition for a writ of habeas
corpus, and after reviewing the one-sentence decision of the Georgia Supreme
Court, we affirmed. Wilson v. Warden, Ga. Diagnostic Prison, 774 F.3d 671, 681
(11th Cir. 2014), reh’g en banc granted, op. vacated, No. 14-10681 (11th Cir. July
30, 2015).
We vacated our panel opinion to determine en banc whether federal courts
must “look through” the summary denial by the Supreme Court of Georgia and
review the reasoning of the Superior Court of Butts County. We conclude that
federal courts need not “look through” a summary decision on the merits to review
the reasoning of the lower state court. We remand to the panel all outstanding
issues in this appeal.
I. BACKGROUND
In 1996, Marion Wilson, Jr., and Robert Earl Butts killed Donovan Parks in
Milledgeville, Georgia. Wilson v. State, 525 S.E.2d 339, 343 (Ga. 1999). The two
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men approached Parks in the parking lot of a Wal-Mart store and asked him for a
ride. Minutes later, Parks’s body was found on a nearby residential street.
Officers arrested Wilson. They searched Wilson’s residence and found a
“sawed-off shotgun loaded with the type of ammunition used to kill Parks.” Id.
Wilson told the officers that Butts had shot Parks with a sawed-off shotgun. A jury
convicted Wilson of malice murder, felony murder, armed robbery, hijacking a
motor vehicle, possession of a firearm during the commission of a crime, and
possession of a sawed-off shotgun. Id. at 342–43. At sentencing, trial counsel
argued that Wilson was not the triggerman and presented evidence of his difficult
childhood. Georgia presented evidence of Wilson’s extensive criminal history and
gang activity. The trial court sentenced Wilson to death, and the Supreme Court of
Georgia affirmed his convictions and sentence on direct appeal. Id. at 343.
Wilson filed a state petition for a writ of habeas corpus in the Superior Court
of Butts County, Georgia, in which he argued that his trial counsel rendered
ineffective assistance in his investigation of mitigation evidence for the penalty
phase of Wilson’s trial. At an evidentiary hearing, Wilson introduced lay testimony
that he argued should have been used as evidence of his difficult childhood. He
also introduced expert testimony that he argued could have explained his poor
judgment skills.
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The superior court denied Wilson’s petition in a written order. It examined
the lay testimony and found it largely cumulative of other evidence at trial or
inadmissible on evidentiary grounds. It found that the expert testimony would not
have changed the outcome of the trial. For these reasons, it ruled that trial
counsel’s performance was not deficient and, alternatively, that Wilson suffered no
prejudice. Wilson filed an application for a certificate of probable cause to appeal,
which the Georgia Supreme Court summarily denied in a one-sentence order.
Wilson then filed a federal petition for a writ of habeas corpus, and the
district court denied him relief. It ruled that the state trial court reasonably applied
clearly established federal law. But the district court granted Wilson a certificate of
appealability on the issue of the effectiveness of his trial counsel at sentencing.
A panel of this Court affirmed. Wilson, 774 F.3d at 681. As an initial matter,
the panel reasoned that “the one-line decision of the Supreme Court of Georgia
denying Wilson’s certificate of probable cause is the relevant state-court decision
for our review because it is the final decision ‘on the merits.’” Id. at 678 (quoting
Newland v. Hall, 527 F.3d 1162, 1199 (11th Cir. 2008)). Under the test announced
in Harrington v. Richter, 562 U.S. 86 (2011), the panel asked “whether there was
any ‘reasonable basis for the [Supreme Court of Georgia] to deny relief.’” Wilson,
774 F.3d at 678 (alteration in original) (quoting Richter, 562 U.S. at 98). The panel
concluded that the Supreme Court of Georgia “could have looked at the overall
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mix of evidence, aggravating and mitigating, old and new, and reasonably
determined that a jury would have still sentenced Wilson to death.” Id. at 680. The
panel stated that the lay testimony “presented a ‘double-edged sword,’” id. at 679
(quoting Evans v. Sec’y, Dep’t of Corr., 703 F.3d 1316, 1324 (11th Cir. 2013)),
and was “largely cumulative” of evidence presented to the jury, id. (quoting Holsey
v. Warden, Ga. Diagnostic Prison, 694 F.3d 1230, 1260–61 (11th Cir. 2012)). The
panel stated that the Georgia Supreme Court could have found the new expert
testimony to be unreliable and in conflict with other evidence. Id. at 680. For these
reasons, the panel concluded that the decision of the Supreme Court of Georgia
denying Wilson’s petition was neither “contrary to, [nor] involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States.” Id. at 681 (quoting 28 U.S.C. § 2254(d)(1)).
In his petition for rehearing en banc, Wilson argued that the panel erred
when it reviewed the summary denial of his petition for a certificate of probable
cause to appeal. Wilson argued that, under the decision in Ylst v. Nunnemaker, 501
U.S. 797 (1991), the panel should have instead examined the last reasoned decision
by a state court. We ordered Georgia to respond to the petition.
In its response to Wilson’s petition, Georgia argued that a court should “look
through a summary denial to a reasoned decision only to determine whether the
state appellate court affirmed on procedural grounds or on the merits.” Georgia
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defended the panel decision that, under Richter, a federal court must defer to the
summary denial of the Georgia Supreme Court by asking “what argument or
theories could have supported the affirmance.” Georgia urged this Court to deny
Wilson’s petition.
On July 30, 2015, we vacated the panel opinion and granted Wilson’s
petition for rehearing en banc. We directed the parties to brief the following issue:
“Is a federal habeas court required to look through a state appellate court’s
summary decision that is an adjudication on the merits to the reasoning in a lower
court decision when deciding whether the state appellate court’s decision is entitled
to deference under 28 U.S.C. § 2254(d)?”
Georgia then changed its position. In its en banc brief, Georgia argued that
this Court should review the reasoned opinion of the superior court, not the
summary denial by the Georgia Supreme Court.
To provide the Court with argument on both sides of the question, we
appointed Adam Mortara as amicus curiae to argue that the question should be
answered in the negative. We thank Mr. Mortara for his service to this Court on
short notice and for his superb brief and oral argument in keeping with the highest
tradition of the legal profession.
Wilson and Georgia also challenged our precedent that the denial of a
certificate of probable cause by the Georgia Supreme Court is an adjudication on
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the merits for the purposes of section 2254(d). See Hittson v. GDCP Warden, 759
F.3d 1210, 1231–32 (11th Cir. 2014). Because the answer to this preliminary
question could make it unnecessary to decide the question we agreed to review, we
ordered Wilson and Georgia to file supplemental briefs addressing whether the
denial of an application for a certificate of probable cause by the Georgia Supreme
Court is an adjudication on the merits.
II. DISCUSSION
We divide our discussion in two parts. First, we discuss why the denial of a
certificate of probable cause by the Georgia Supreme Court is an adjudication on
the merits. Second, we explain why a federal court is not required to “look
through” a summary decision of a state appellate court that is an adjudication on
the merits to the reasoning in a lower court decision.
A. The Denial of a Certificate of Probable Cause by the Georgia Supreme
Court Is an Adjudication on the Merits.
The Antiterrorism and Effective Death Penalty Act of 1996 requires a
federal court to deny an application for a writ of habeas corpus “with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim 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; or . . . was based on an unreasonable
determination of the facts.” 28 U.S.C. § 2254(d). When deciding that issue, we
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review one decision: “the last state-court adjudication on the merits.” Greene v.
Fisher, 132 S. Ct. 38, 45 (2011). The Supreme Court made this point clear in
Greene v. Fisher, when it held that the “clearly established Federal law” to be
applied is the law at the time of “the last state-court adjudication on the merits.” Id.
Reading the text of section 2254(d), the Supreme Court explained, “The words ‘the
adjudication’ in the ‘unless’ clause obviously refer back to the ‘adjudicat[ion] on
the merits,’ and the phrase ‘resulted in a decision’ in the ‘unless’ clause obviously
refers to the decision produced by that same adjudication on the merits.” Id.
(alteration in original) (quoting 28 U.S.C. § 2254(d)(1)).
When, as here, the Georgia Supreme Court summarily denies a certificate of
probable cause to appeal after a superior court has denied habeas relief on the
merits, the summary denial is an adjudication on the merits. In Georgia, a
petitioner must seek a certificate of probable cause from the Georgia Supreme
Court before he can appeal a denial of habeas relief. Ga. Code Ann. § 9-14-52(a).
Georgia Supreme Court Rule 36 states that, “[a] certificate of probable cause to
appeal a final judgment in a habeas corpus case involving a criminal conviction
will be issued where there is arguable merit, provided there has been compliance
with [Ga. Code Ann.] § 9-14-52(b).” Ga. Sup. Ct. R. 36 (emphasis added). Under
this rule, the Georgia Supreme Court reviews the merits of the appeal: that is, the
Georgia Supreme Court denies a properly filed application for a certificate of
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probable cause only when it determines that the appeal lacks “arguable merit.” See
Foster v. Chatman, 136 S. Ct. 1737, 1746 n.2 (2016). For this reason, the Supreme
Court of the United States recently determined that a summary denial of a
certificate of probable cause is a “decision on the merits” subject to its review on a
writ of certiorari. Id. For the same reason, the denial of a certificate of probable
cause is an adjudication on the merits under section 2254.
The Georgia Supreme Court does not avoid adjudicating a habeas appeal by
requiring the petitioner to seek a certificate of probable cause. The Georgia
Constitution vests the state supreme court with appellate jurisdiction over “[a]ll
habeas corpus cases.” Ga. Const. Art. VI, § VI, ¶ III. In Reed v. Hopper, 219
S.E.2d 409 (Ga. 1975), the Georgia Supreme Court held that the 1975 Habeas
Corpus Act, which created the process for a certificate of probable cause to appeal,
satisfied the constitutional mandate of exercising appellate jurisdiction where the
Georgia Supreme Court “may refuse to entertain a habeas corpus appeal for lack of
probable cause.” Id. at 411. The Georgia Supreme Court still passes on the merits
of every petition by either immediately ruling that an appeal lacks arguable merit
or by granting the certificate, conducting further review, and then ruling on the
merits. Georgia asserts that many denials of an application for a certificate of
probable cause are summary dispositions and that, when the Georgia Supreme
Court reviews a petitioner’s claims after granting a certificate of probable cause,
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the review is typically more comprehensive. But section 2254 does not require
state courts to provide written opinions, Richter, 562 U.S. at 98, and it does not set
a thoroughness standard, see Johnson v. Williams, 133 S. Ct. 1088, 1095–96
(2013). That the Georgia Supreme Court may choose to conduct a more probing
review of appeals after granting a certificate of probable cause does not mean that
a denial of a certificate of probable cause is not also on the merits. Indeed, in a
recent summary denial of an application for a certificate of probable cause, the
Georgia Supreme Court stated that it “fully considered [the petitioner’s]
application on the merits” and denied the application “as lacking arguable merit.”
Lucas v. Chatman, No. S16W1408 (Ga. Apr. 27, 2016). For every application for
a certificate of probable cause, the Georgia Supreme Court must satisfy itself that
the petitioner’s claims are either procedurally defaulted or meritless.
And, in fact, the Georgia Supreme Court thoroughly reviews the evidence
and the petitioner’s arguments before denying an application for a certificate of
probable cause. The Georgia Supreme Court makes its decision with the aid of the
complete record and transcript, which the clerk of the superior court is required to
transfer to the clerk of the Supreme Court. See Ga. Code Ann. § 9-14-52(b).
Although the Georgia Supreme Court frequently denies an application summarily,
it sometimes writes lengthy opinions to explain why a prisoner’s claims are
without merit. See, e.g., Gibson v. Turpin, 513 S.E.2d 186, 187 (Ga. 1999)
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(denying prisoner’s application for a certificate of probable cause in a twelve-page
decision over a dissent because, among other reasons, his attorney’s representation
was not deficient). On numerous occasions, Justice Carley has dissented from a
summary denial of a certificate of probable cause on the ground that the Georgia
Supreme Court should not have “dispose[d] of the case on the merits” because the
prisoner did not comply with the procedural requirements for seeking a certificate
of probable cause. Alderman v. Head, 559 S.E.2d 72, 72 (Ga. 2002) (Carley, J.,
dissenting); see also, e.g., Colton v. Morgan, 514 S.E.2d 822, 822 (Ga. 1999)
(Carley, J., dissenting); Hamm v. Johnson, 514 S.E.2d 822, 822 (Ga. 1999)
(Carley, J., dissenting); Ferguson v. Hall, 512 S.E.2d. 604, 604 (Ga. 1999) (Carley,
J., dissenting). The Georgia Supreme Court clearly understands that a summary
denial of a certificate of probable cause is a determination that a prisoner’s claims
lack merit. To contend that the denial is not an adjudication on the merits is to
suggest that the elaborate procedures of the Georgia courts are a sham. We refuse
to endorse that suggestion.
The courts of last resort in many other states provide a discretionary appeals
process similar to certiorari review. For example, in granting or denying a writ, the
Louisiana Supreme Court exercises its “sound judicial discretion” and considers a
number of nonexhaustive factors including whether the appeal presents “a
significant issue of law which has not been . . . resolved,” the decision of the court
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of appeal “will cause material injustice or significantly affect the public interest,”
or “the controlling precedents should be overruled or substantially modified.” La.
Sup. Ct. R. 10(a). The rules in Illinois and Pennsylvania also provide for review in
the “sound judicial discretion” of the court, Ill. Sup. Ct. R. 315(a); Pa. R. App. P.
1114(a), and the rules in Massachusetts provide for review when it is in “the public
interest” or “the interests of justice,” Mass. R. App. P. 27.1(e). These courts decide
whether to review an appeal based, at least in part, on considerations other than the
merits of the appeal. Unlike the Georgia Supreme Court, these state supreme courts
may deny an application to appeal a denial of collateral relief without determining
that the appeal lacks merit and, as a result, these denials are not adjudications on
the merits.
Georgia courts and practitioners sometimes refer to the process by which a
certificate of probable cause is reviewed as “discretionary,” but they mean
something different from traditional certiorari review. Black’s Law Dictionary
defines “discretionary review” as “[t]he form of appellate review that is not a
matter of right but that occurs only with the appellate court’s permission.” Review,
Black’s Law Dictionary (10th ed. 2014). Georgia courts and practitioners use the
term “discretionary” to distinguish appeals requiring permission from appeals as of
right, not to describe a certiorari-type procedure. For example, a well-reputed
treatise of Georgia appellate practice notes that an application for leave to appeal a
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final judgment under section 5-6-35 of the Georgia Code—which cannot be denied
when there is “[r]eversible error,” Ga. Sup. Ct. R. 34—“is widely referred to as
‘discretionary review.’” Christopher J. McFadden et al., Ga. Appellate Practice
with Forms § 13:1 (2015–16 ed. 2015). “[B]ut practitioners should not be led
astray by the term. As understood by both appellate courts, there is no discretion to
deny an application for ‘discretionary review’ when reversible error appears to
exist.” Id. (citing Nw. Soc. & Civic Club, Inc. v. Franklin, 583 S.E.2d 858 (Ga.
2003)). The authors anticipated that the term “discretionary review” may cause
confusion and clarified that in Georgia “discretionary review” may still require an
adjudication on the merits. The denial of an application for a certificate of probable
cause is both discretionary, as the term is understood in Georgia law, and an
“adjudicat[ion] on the merits” under section 2254.
In its supplemental brief, Georgia expressed concern that if a denial of a
certificate of probable cause is an adjudication on the merits, a silent denial of a
certificate of probable cause may eradicate a procedural bar relied on by a state
court below, but Ylst prevents that result. The Supreme Court of the United States
held in Ylst that “[w]here there has been one reasoned state judgment rejecting a
federal claim, later unexplained orders upholding that judgment . . . rest upon the
same ground.” Ylst, 501 U.S. at 803. If “the last reasoned opinion on the claim
explicitly imposes a procedural default, we will presume that a later decision
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rejecting the claim did not silently disregard that bar and consider the merits.” Id.
A summary denial of a certificate of probable cause is not on the merits for any
claim that was procedurally barred below. Georgia’s concern is unfounded.
The superior court denied Wilson’s claims only on the merits. The summary
denial of Wilson’s application for a certificate of probable cause by the Georgia
Supreme Court is the final state court adjudication on the merits. We must review
that latter decision.
B. Federal Courts Need Not “Look Through” a Summary Decision on the
Merits to Review the Reasoning of the Lower State Court.
The deferential standard of section 2254(d) applies regardless of whether the
state court decision “is unaccompanied by an opinion explaining the reasons relief
has been denied.” Richter, 562 U.S. at 98. When the last adjudication on the merits
provides a reasoned opinion, federal courts evaluate the opinion. 28 U.S.C.
2254(d); see, e.g., Porter v. McCollum, 558 U.S. 30, 42–44 (2009). When the last
adjudication on the merits provides no reasoned opinion, federal courts review that
decision using the test announced in Richter. In Richter, an inmate filed a petition
for a writ of habeas corpus in the California Supreme Court, which summarily
denied the petition. Richter, 562 U.S. at 96. When the inmate filed a federal
petition for a writ of habeas corpus, the Supreme Court of the United States ruled
that, “[w]here a state court’s decision is unaccompanied by an explanation,” a
petitioner’s burden under section 2254(d) is to “show[] there was no reasonable
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basis for the state court to deny relief.” Id. at 98. “[A] habeas court must determine
what arguments or theories supported or, as here, could have supported, the state
court’s decision; and then it must ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent with the holding in a
prior decision of [the] Court.” Id. at 102. Under that test, Wilson must establish
that there was no reasonable basis for the Georgia Supreme Court to deny his
certificate of probable cause.
Wilson argues that Richter applies only when there is no reasoned decision
from any state court. He argues that, when a previous state adjudication offered a
reasoned opinion, Ylst requires federal courts to “look through” the summary
denial and review that previous opinion under the standard outlined in section
2254. We disagree.
Nothing in the Act or Richter suggests that its reasoning is limited to the
narrow subset of habeas petitions where there is no reasoned decision from any
state court. Under section 2254(d), a federal court reviewing the judgment of a
state court must first identify the last adjudication on the merits. It does not matter
whether that adjudication provided a reasoned opinion because section 2254(d)
“refers only to a ‘decision’” and does not “requir[e] a statement of reasons.” Id. at
98. The federal court then must review that decision deferentially. In Richter, the
Supreme Court explained how to review a decision “unaccompanied by an
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opinion.” Id. There is no basis in the Act or Richter for two divergent analytical
modes—one when there is no previous reasoned decision below and another for
when there is.
Ylst involved the application of the doctrine of procedural default—a judge-
made doctrine, see McQuiggin v. Perkins, 133 S. Ct. 1924, 1937 (2013) (Scalia, J.,
dissenting)—in the review of state-court judgments that do not clearly state
whether they rest on procedural grounds or adjudicate the merits of a federal claim.
See Ylst, 501 U.S. at 802. Under the doctrine of procedural default, federal courts
do not review the merits of a state prisoner’s federal claim if “a state-law default
prevent[ed] the state court from reaching the merits.” Id. at 801; see also
Wainwright v. Sykes, 433 U.S. 72, 81, 87 (1977). In Ylst, an inmate in a California
prison appealed his conviction for murder on the ground that the state introduced
evidence obtained in violation of the Fifth and Fourteenth Amendments. 501 U.S.
at 799. The California appellate court ruled that the inmate procedurally defaulted
his federal claim because he raised it for the first time on appeal. Id. When the
inmate filed a petition for collateral relief in state court, the trial court and appellate
courts summarily denied relief. Id. at 800. The inmate then filed a federal petition
for a writ of habeas corpus, and the district court ruled that the “state procedural
default barred federal review.” Id. The Supreme Court of the United States held
that, where “the last reasoned opinion on the claim explicitly imposes a procedural
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default, we will presume that a later decision rejecting the claim did not silently
disregard that bar and consider the merits.” Id. at 803. And if the last reasoned
opinion of a state court adjudicated a federal claim, federal courts should presume
that the later state decision affirming without explanation also adjudicated the
merits of that claim. Id.
It makes sense to assume that a summary affirmance rests on the same
general ground—that is, a procedural ground or on the merits—as the judgment
under review. As the Ylst Court explained, it is “most improbable” that an
“unexplained order leaving in effect a decision . . . that expressly relies upon
procedural bar” actually “reject[ed] that bar and decid[ed] the federal question.” Id.
at 803–04. But it does not follow that a summary affirmance rests on the same
specific reasons provided by the lower court.
The Supreme Court of the United States after all does not adopt the
reasoning of a lower court when it issues a summary disposition. When the Court
vacated the judgement of a three-judge district court after the district court
erroneously interpreted a summary affirmance by the Supreme Court, Chief Justice
Burger explained in a concurring opinion, “When we summarily affirm, without
opinion, the judgment of a three-judge District Court we affirm the judgment but
not necessarily the reasoning by which it was reached.” Fusari v. Steinberg, 419
U.S. 379, 391 (1975) (Burger, C.J., concurring). In Mandel v. Bradley, 432 U.S.
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173 (1977), the Court quoted Chief Justice Burger approvingly and reiterated that
“[b]ecause a summary affirmance is an affirmance of the judgment only, the
rationale of the affirmance may not be gleaned solely from the opinion below.” Id.
at 176. Since then, the Supreme Court has repeatedly confirmed this explanation of
its summary affirmances. See, e.g., Montana v. Crow Tribe of Indians, 523 U.S.
696, 714 n.14 (1998) (“A summary disposition affirms only the judgment of the
court below, and no more may be read into our action than was essential to sustain
that judgment.” (quoting Anderson v. Celebrezze, 460 U.S. 780, 784 n.5 (1983)));
Wis. Dep’t of Revenue v. William Wrigley, Jr., Co., 505 U.S. 214, 224 n.2 (1992)
(“[O]ur summary disposition affirmed only the judgment below, and cannot be
taken as adopting the reasoning of the lower court.”); Pac. Gas & Elec. Co. v. State
Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 212 n.24 (1983) (“[A]s
with all summary affirmances, our action ‘is not to be read as an adoption of the
reasoning supporting the judgment under review.’” (quoting Zobel v. Williams, 457
U.S. 55, 64 n.13 (1982))). And this Court has interpreted a summary affirmance by
our predecessor circuit as “only approv[ing] the result reached in the district court
without expressly approving the opinion or adopting its reasons.” DeShong v.
Seaboard Coast Line R.R. Co., 737 F.2d 1520, 1523 (11th Cir. 1984). It makes no
sense, and would run counter to principles of federalism and comity, to constrain
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state courts in their use of summary affirmances in a way that we do not constrain
ourselves.
An appellate court might affirm because it agrees with the disposition of a
claim for a different reason. This Court frequently affirms “on any ground
supported by the record[,] even if that ground was not considered by the district
court.” Clements v. LSI Title Agency, Inc., 779 F.3d 1269, 1273 (11th Cir. 2015)
(alteration in original) (quoting Seminole Tribe of Fla. v. Fla. Dep’t of Revenue,
750 F.3d 1238, 1242 (11th Cir. 2014)); see also United States v. Hall, 714 F.3d
1270, 1271 (11th Cir. 2013) (“[W]e may affirm for any reason supported by the
record, even if not relied upon by the district court.” (alteration in original)
(quoting United States v. Chitwood, 676 F.3d 971, 975 (11th Cir. 2012))). In
particular, this Court can affirm the denial of a writ of habeas corpus “for reasons
other than those advanced by the district court.” Demps v. Wainwright, 805 F.2d
1426, 1428 (11th Cir. 1986). Our sister circuits do too. See, e.g., Sullo & Bobbitt,
P.L.L.C. v. Milner, 765 F.3d 388, 392 (5th Cir. 2014) (“We are not limited to the
district court’s reasons for its grant of summary judgment and may affirm the
district court’s summary judgment on any ground raised below and supported by
the record.” (quoting Boyett v. Redland Ins. Co., 741 F.3d 604, 606–07 (5th Cir.
2014))); Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152, 1159 (9th Cir. 2012)
(“[W]e can affirm . . . on any ground supported by the record, even if the district
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court did not rely on the ground.” (quoting United States v. Corinthian Colls., 655
F.3d 984, 992 (9th Cir. 2011))).
To be sure, the Supreme Court stated in Ylst that “silence implies consent,”
501 U.S. at 804, but it recited this “maxim” to explain why it is “most improbable”
that a court would silently disregard a procedural default. Id. We should not apply
Ylst to a different context that it did not address. Ylst creates a rebuttable
presumption that state procedural default rulings are not undone by unexplained
orders. See id. It does not direct a federal court to treat the reasoning of a decision
on the merits by a lower court as the reasoning adopted by a later summary
decision that affirms on appeal, especially since neither the Supreme Court nor any
federal circuit court operates that way. As Judge O’Scannlain explained, “[i]t
makes far more sense to assume that the [state supreme court] adhered to an
established practice of summarily denying meritless claims rather than to presume”
that the state supreme court “adopted wholesale the reasoning” of a lower court.
Cannedy v. Adams, 733 F.3d 794, 800–01 (2013) (O’Scannlain, J., dissenting from
the denial of rehearing en banc).
Because appellate courts may affirm for different reasons, federal courts
should not, under the deferential standard of review established in section 2254,
assume that the summary affirmances of state appellate courts adopt the reasoning
of the court below. “AEDPA’s requirements reflect a ‘presumption that state courts
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know and follow the law.’” Woods v. Donald, 135 S. Ct. 1372, 1376 (2015)
(quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002)). Federal habeas review
acts as a “‘guard against extreme malfunctions in the state criminal justice
systems,’ not a substitute for ordinary error correction through appeal.” Richter,
562 U.S. at 102–03 (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)).
“AEDPA thus imposes a ‘highly deferential standard for evaluating state-court
rulings’ and ‘demands that state-court decisions be given the benefit of the doubt.’”
Renico v. Lett, 559 U.S. 766, 773 (2010) (citation omitted) (quoting Lindh v.
Murphy, 521 U.S. 320, 333 n.7 (1997), and Visciotti, 537 U.S. at 24). “Adherence
to these principles serves important interests of federalism and comity.” Donald,
135 S. Ct. at 1376. Accordingly, even when the opinion of a lower state court
contains flawed reasoning, the Act requires that we give the last state court to
adjudicate the prisoner’s claim on the merits “the benefit of the doubt,” Renico,
559 U.S. at 773 (quoting Visciotti, 537 U.S. at 24), and presume that it “follow[ed]
the law,” Donald, 135 S. Ct. at 1376 (quoting Visciotti, 537 U.S. at 24).
Likewise, the Supreme Court has explained that the doctrine of procedural
default in habeas cases “is grounded in concerns of comity and federalism.”
Coleman v. Thompson, 501 U.S. 722, 730 (1991). “Without the rule, . . . habeas
would offer state prisoners whose custody was supported by independent and
adequate state grounds . . . a means to undermine the State’s interest in enforcing
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its laws.” Id. at 730–31. Ylst protected this doctrine by directing federal courts to
consider whether a state decision rested on a procedural default in instances where
the last state court judgment was a summary order.
Wilson and Georgia would have us ignore these interests of federalism and
comity and impose opinion-writing standards on state appellate courts. Under their
approach, a state appellate court that adjudicates a prisoner’s federal claim on the
merits would have 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. But the Supreme Court has instructed us to do
otherwise. It has stated, “[W]e have no power tell state courts how they must write
their opinions.” Id. at 739. And it has since repeated the point: “[F]ederal courts
have no authority to impose mandatory opinion-writing standards on state
courts.” Williams, 133 S. Ct. at 1095. And for good reason: requiring state courts to
provide rationales would impose a heavy burden. “The caseloads shouldered by
many state appellate courts are very heavy, and the opinions issued by these courts
must be read with that factor in mind.” Id. at 1095–96 (footnote omitted).
“[R]equiring a statement of reasons could undercut state practices designed to
preserve the integrity of the case-law tradition. The issuance of summary
dispositions in many collateral attack cases can enable a state judiciary to
concentrate its resources on the cases where opinions are most needed.” Richter,
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562 U.S. at 99. This Circuit has explained that “[t]elling state courts when and how
to write opinions to accompany their decisions is no way to promote comity.”
Bishop v. Warden, GDCP, 726 F.3d 1243, 1255 (11th Cir. 2013) (alteration in
original) (quoting Wright v. Sec’y, Dep’t of Corr., 278 F.3d 1245, 1255 (11th Cir.
2002)). Judge Jill Pryor’s dissent argues that its approach would not impose
opinion-writing standards because the Georgia Supreme Court could issue a one-
line order stating that it agreed with the result reached by a lower court but not for
the same reasons. But that approach does nothing less than impose an opinion-
writing standard. We decline to read Ylst and Richter in a way that “smacks of a
‘grading papers’ approach that is outmoded in the post-AEDPA era.” Id. (quoting
Wright, 278 F.3d at 1255).
Judge Jill Pryor’s dissent argues that the Georgia Supreme Court intends to
adopt the opinion of a lower court when it summarily affirms and that we should
not assign those summary affirmances the meaning of summary affirmances by
federal appellate courts, but we disagree with the dissent’s interpretation of
Georgia law. Nothing in Georgia law or the practice of the Georgia Supreme Court
proves that a summary denial of an application for a certificate of probable cause
adopts the reasoning of the superior court. That the Georgia Supreme Court
sometimes provides reasons for its denial of an application for a certificate of
probable cause when it disagrees with certain reasoning by the superior court does
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not prove that the Georgia Supreme Court endorses the opinion of the superior
court every time it does not write an opinion. It proves only that the Georgia
Supreme Court sometimes chooses to provide reasons for a decision. Because we
must give state court decisions the “the benefit of the doubt,” Renico, 559 U.S. at
773 (quoting Visciotti, 537 U.S. at 24), we cannot assume that state practice is
different from federal practice absent any indication from state law.
When assessing under Richter whether there “was no reasonable basis for
the state court to deny relief,” 562 U.S. at 98, a federal habeas court may look to a
previous opinion as one example of a reasonable application of law or
determination of fact. For example, in Gissendaner v. Seaboldt, 735 F.3d 1311
(11th Cir. 2013), we affirmed the denial of a claim of ineffective assistance of
counsel because “the state habeas court’s finding that Gissendaner had failed to
demonstrate the requisite prejudice did not involve an unreasonable application of
Strickland or an unreasonable determination of fact.” Id. at 1318. When the
reasoning of the state trial court was reasonable, there is necessarily at least one
reasonable basis on which the state supreme court could have denied relief and our
inquiry ends. In this way, federal courts can use previous opinions as evidence that
the relevant state court decision under review is reasonable. But the relevant state
court decision for federal habeas review remains the last adjudication on the
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merits, and federal courts are not limited to assessing the reasoning of the lower
court.
As amicus argues, under the “look through” approach, federal courts would
always attribute the reasoning of a lower court to a state appellate court that
summarily affirmed, even in circumstances where it is implausible that the state
appellate court adopted that reasoning wholesale. For example, between the date of
a lower court decision and the date of a summary affirmance by the state supreme
court, the Supreme Court of the United States might issue a decision that changes
“clearly established Federal law,” 28 U.S.C. § 2254(d). By “looking through” to
the lower court decision, the federal court would assume that the state supreme
court willfully ignored the intervening change in law, instead of assuming that the
state supreme court considered the new law and ultimately reached the same
disposition of the claim as the lower court, although for different reasons (such as
harmless error). But the Supreme Court has instructed us to “presum[e] that state
courts know and follow the law.” Donald, 135 S. Ct. at 1376 (quoting Visciotti,
537 U.S. at 24).
Wilson argues that in instances where an intervening Supreme Court ruling
bears on the case, the Ylst presumption would be rebutted, but it would be rebutted
by reviewing the state court proceedings in a way that is contrary to the
requirements of section 2254. To rebut the presumption, a federal court would
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presumably consider the opinion of the lower court, the later unexplained order by
the state appellate court, and the briefing before that appellate court, see Ylst, 501
U.S. at 804, thereby reviewing the entire process by which a prisoner’s federal
claim was adjudicated. But section 2254 refers to a single adjudication and its
resulting “decision.” By reviewing one final state court decision, instead of
inspecting how different state courts ruled before that final decision, federal courts
in habeas review “leave[] primary responsibility with the state courts,” Visciotti,
537 U.S. at 27.
The Supreme Court has never held that a federal court must “look through”
the last adjudication on the merits and examine the specific reasoning used by the
lower state court. The phrase “look through” from Ylst has come to stand for the
routine practice of “looking through” denials of appellate review that are not on the
merits to locate the proper state court adjudication on the merits for purposes of
section 2254(d). For example, in Brumfield v. Cain, 135 S. Ct. 2269 (2015), the
prisoner filed a state postconviction petition that raised an Atkins claim and
requested an evidentiary hearing. See Atkins v. Virginia, 536 U.S. 304 (2002). The
state trial court dismissed Brumfield’s petition and stated that Brumfield “had not
demonstrated impairment in adaptive skills.” Brumfield, 135 S. Ct. at 2289. The
Louisiana Supreme Court then “summarily denied his application for a supervisory
writ to review the trial court’s ruling.” Id. at 2275. “In conducting the § 2254(d)(2)
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inquiry,” the Supreme Court of the United States “‘look[ed] through’ the Louisiana
Supreme Court’s summary denial of Brumfield’s petition for review.” Id. at 2276.
Because, as noted above, the denial of a supervisory writ in Louisiana is not on the
merits, see La. Sup. Ct. R. 10, the Louisiana Supreme Court did not adjudicate
Brumfield’s claim on the merits when it denied his application. For this reason, the
decision of the state trial court was the last state court adjudication on the merits.
Similarly, in Johnson v. Williams, the Supreme Court approved the approach
of the Ninth Circuit of looking through the California Supreme Court’s summary
denial of the petition for review. See 133 S. Ct. at 1094 n.1. The Ninth Circuit had
“look[ed] through” the “state court’s decision to deny discretionary review”
because, unlike the summary denial of an original petition reviewed in Richter, it
was “decidedly not a decision on the merits.” Williams v. Cavazos, 646 F.3d 626,
636 (9th Cir. 2011) (emphasis added), rev’d sub nom. Johnson v. Williams, 131 S.
Ct. 1088; see Cal. R. Ct. 8.500(b). For the same reason, the Supreme Court has
reviewed decisions from the Michigan Court of Appeals in circumstances where
the Michigan Supreme Court later denied discretionary, certiorari-style review,
Mich. Ct. R. 7.305. See Donald, 135 S. Ct. at 1375; Burt v. Titlow, 134 S. Ct. 10,
15 (2013); Lafler v. Cooper, 132 S. Ct. 1376, 1383 (2012). In all of these
decisions, the Supreme Court did not “look through” the last adjudication on the
merits to review the last reasoned opinion of a state court but instead looked
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through discretionary denials of review to identify the last adjudication on the
merits.
Contrary to the dissents’ argument, the Supreme Court did not hold in
Premo v. Moore, 562 U.S. 115 (2011), that a federal court must “look through” a
summary decision to review the reasoning used by a lower court. In Moore, a state
trial court denied Moore’s petition for postconviction relief, and the Oregon Court
of Appeals affirmed without opinion. Moore v. Palmateer, 26 P.3d 191 (Or. Ct.
App. 2001) (table). The Supreme Court did not say it looked through the
unexplained order, and, in fact, it did not “look through.” After describing the
decision of the trial court in two sentences, Moore, 562 U.S. at 123, the Supreme
Court proceeded to discuss why it “would not have been unreasonable” for the
state court to conclude, id. at 124, 127, 128, or “reasonably could have concluded,”
id. at 131, that Moore was not entitled to relief. The Supreme Court instead appears
to have applied Richter despite the trial court offering a reasoned opinion. Indeed,
Judge Jill Pryor’s dissent even admits that the Supreme Court applied the Richter
test. Judge Jill Pryor’s dissent reasons that the Supreme Court applied the Richter
test because the state court “did not specify,” id. at 123, on which prong of
Strickland it ruled, but the Supreme Court never suggested that Richter would
apply only when a state ruling is unclear. Even if the Supreme Court had looked to
the reasons provided by the trial court, it would not establish that a federal court
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must evaluate only the reasons provided by a lower state court because, as in
Gissendaner, the Supreme Court concluded that Moore was not entitled to relief.
Id. Moore neither applied the look-through rule nor implied that we must “look
through” in the circumstances we consider here.
Several of our sister circuits have stated that courts must “review the last
reasoned state court decision,” Woodfox v. Cain, 772 F.3d 358, 369 (5th Cir. 2014)
(quoting Batchelor v. Cain, 682 F.3d 400, 405 (5th Cir. 2012)), but only the Fourth
and Ninth Circuits have expressly applied this rule to “look through” an on-the-
merits adjudication of a higher state court and then grant habeas relief, see
Grueninger v. Dir., Va. Dep’t of Corr., 813 F.3d 517, 525–27 (4th Cir. 2016);
Cannedy v. Adams, 706 F.3d 1148, 1158, 1166 (9th Cir. 2013). Other circuit courts
have stated this rule but have in fact only “looked through” discretionary denials.
See, e.g., Sanchez v. Roden, 753 F.3d 279, 298 n.13 (1st Cir. 2014); Woodfox, 772
F.3d at 369; Woolley v. Rednour, 702 F.3d 411, 421 (7th Cir. 2012). For example,
in Woolley v. Rednour, the Seventh Circuit reviewed the written opinion of the
Illinois Appellate Court rejecting Woolley’s Strickland claim after the Supreme
Court of Illinois had denied Woolley leave to appeal. 702 F.3d at 421. The Seventh
Circuit stated that the ruling of the Illinois Appellate Court was the “last reasoned
opinion” and that the Illinois Supreme Court “presumptively adopt[ed] the
reasoning of the state appellate court under Ylst.” Id. at 422. But we too would
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have reviewed the opinion of the Illinois Appellate Court under our reading of
Supreme Court precedent because the denial of Wooley’s petition for leave to
appeal was under a discretionary review process. See Ill. Sup. Ct. R. 315(a). The
decision of the Illinois Appellate Court was both the “last reasoned opinion,”
Woolley, 702 F.3d at 422, as well as the “last state-court adjudication on the
merits,” Greene, 132 S. Ct. at 45.
The Fourth and Ninth Circuits held—and two Justices of the Supreme Court
agree—that Richter governs only where “there was no reasoned decision by a
lower court” and that Ylst provides the rule where there is one, Cannedy, 706 F.3d
1148; see Hittson v. Chatman, 135 S. Ct. 2126 (2015) (Ginsburg, J., joined by
Kagan, J., concurring in the denial of certiorari); Grueninger, 813 F.3d at 525–27,
but we respectfully disagree. That approach reads Ylst too broadly and Richter too
narrowly. The Fourth Circuit cited Brumfield as limiting the Richter rule to
circumstances in which no state court has written an opinion. See Grueninger, 813
F.3d at 526–27. But, as explained above, the Supreme Court in Brumfield looked
through a discretionary denial of review and had no opportunity to apply or qualify
Richter. In an opinion concurring in the denial of certiorari in Hittson, Justice
Ginsburg stated that because Ylst directs federal habeas courts to “look through”
state decisions “to determine whether a claim was procedurally defaulted[,] [t]here
is no reason not to ‘look through’ such adjudications, as well, to determine the
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particular reasons why the state court rejected the claim on the merits.” Hittson,
135 S. Ct. at 2128. Yet one reason to “look through” for purposes of procedural
default but no further is that appellate courts often affirm on bases not relied on by
lower courts. Indeed, Justice Ginsburg’s concurrence serves as a perfect
illustration. She concurred in the denial of certiorari because she was “convinced
that the Eleventh Circuit would have reached the same conclusion had it properly
applied Ylst.” Id. Justice Ginsburg was satisfied with our decision on the merits
even though she did not agree with our reasoning. Because appellate courts may
affirm for different reasons, presuming that state appellate courts affirm only for
the precise reasons given by a lower court deprives them of the “benefit of the
doubt” that the Act and Richter require, Renico, 559 U.S. at 773 (quoting Visciotti,
537 U.S. at 24).
III. CONCLUSION
We REMAND this appeal to the panel for consideration of the remaining
issues.
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JORDAN, Circuit Judge, joined by WILSON, MARTIN, ROSENBAUM, and
JILL PRYOR, Circuit Judges, dissenting:
If we are candid, we should acknowledge that the best we can do is predict
which line of authority the Supreme Court will use to decide whether, in an
AEDPA habeas case, it is appropriate to presume that the Georgia Supreme
Court’s summary denial of a certificate of probable cause is based on the rationale
articulated by the trial court in its reasoned decision. My prediction is that the
Supreme Court will decide the issue differently than the en banc majority and hold
that the presumption in Ylst v. Nunnemaker, 501 U.S. 797, 803, 806 (1991),
governs. With respect, therefore, I dissent.
1. The two cases that the majority primarily relies on—Harrington v.
Richter, 562 U.S. 86 (2011), and Cullen v. Pinholster, 563 U.S. 170 (2011)—both
arose in a scenario where only one state appellate court ruled on the claim and
there was no reasoned decision by a lower court. See Richter, 512 U.S. at 96–97;
Pinholster, 563 U.S. at 177–79. There was, in other words, no possibility of
looking through the state appellate court’s ruling in either of those cases. That
difference is significant, particularly given that the Supreme Court has never (ever)
applied Richter or Pinholster to a case involving a reasoned lower-court decision.
2. According to the majority, nothing in Richter suggests that its
reasoning is limited to the narrow subset of habeas cases where there is no
reasoned decision from any state court. That may be true, but Ylst was similarly
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silent with respect to its own reach. If the majority is right about the breadth of
Richter, then the same goes for Ylst, as nothing in Ylst suggests that its look-
through approach is limited to the subset of cases where the state lower court’s
rejection of a claim on procedural grounds is later affirmed without explanation.
So silence is a legal wash (or, if one prefers betting parlance, a push).
3. As we are reading tea leaves to divine what Richter means, it might be
a good idea to start with what the Supreme Court has actually said about Richter.
In a recent case citing Richter, the Supreme Court described its scope in narrow
terms, limiting it to situations where there is no reasoned lower court decision. See
Brumfield v. Cain, 135 S. Ct. 2269, 2282–83 (2015) (characterizing Richter as
“requiring federal habeas court to defer to hypothetical reasons state court might
have given for rejecting federal claim where there is no ‘opinion explaining the
reasons relief has been denied’”) (quoting Richter, 562 U.S. at 98) (emphasis
added). If the Supreme Court has characterized Richter in this limited way, we
should not become literary critics who profess to know the meaning of a work
better than its author.
4. It would also be instructive to look at what the Supreme Court has
done in a case similar to this one. Premo v. Moore, 562 U.S. 115 (2011), an
AEDPA habeas case, was heard together with, and was decided on the same day
as, Richter. Although Moore did not mention Ylst, or explicitly say that it was
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looking through to the last reasoned state court decision, that is what the Supreme
Court seemed to do.
In Moore, the Oregon post-conviction court denied the defendant’s
ineffective assistance of counsel claim because it found that counsel’s efforts to
suppress certain evidence would have been “fruitless.” Id. at 119–20. The Oregon
Court of Appeals “affirmed without opinion.” See Moore v. Palmateer, 26 P.3d
191 (Or. Ct. App. 2001). After a federal district court denied the defendant’s
petition for a writ of habeas corpus and the Ninth Circuit reversed, the Supreme
Court considered whether the state post-conviction court’s reasoned decision (not
the unexplained summary affirmance by the Oregon Court of Appeals) was an
unreasonable application of federal law. See Moore, 562 U.S. at 132 (“The state
postconviction court’s decision involved no unreasonable application of Supreme
Court precedent.”). In the absence of a direct holding on the question before us,
what the Supreme Court actually did in Moore is another indication that Richter
should not be read too broadly. Cf. Oliver Wendell Holmes, The Common Law 5
(Howe ed. 1963) (“The life of the law has not been logic; it has been experience.”).
5. Sears v. Upton, 561 U.S. 945 (2010), a non-habeas case decided
before the passage of AEDPA, involved the Georgia Supreme Court’s summary
denial of a certificate of probable cause. In analyzing the claim at issue, the
Supreme Court applied a look-through approach and reviewed not the summary
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denial, but the last reasoned state court decision. Sears, in my opinion, supports
the application of the Ylst presumption here.
The state trial court in Sears ruled that the defendant’s counsel had rendered
deficient performance with regard to the investigation at the penalty phase, but
denied relief because in its view it could not speculate as to what the effect of the
additional mitigating evidence (i.e., the additional mitigating evidence that would
have been discovered had counsel performed a constitutionally adequate
investigation) would have been. When the Georgia Supreme Court summarily
denied him a certificate of probable cause, see id. at 946, the defendant sought a
writ of certiorari.
The Supreme Court granted certiorari and reversed, holding that the state
trial court had improperly applied the prejudice prong of Strickland v. Washington,
466 U.S. 668, 694 (1984). See Sears, 561 U.S. at 952–53. The Supreme Court did
not try to imagine hypothetical grounds on which the Georgia Supreme Court
could have possibly rejected the ineffectiveness claim (and therefore found no
“arguable merit” in the request for a certificate of probable cause). Instead, the
Supreme Court repeatedly reviewed and discussed what the state trial court had
done, and in fact reversed precisely because of what the state trial court had
(improperly) done. See, e.g., id. at 953–54 (“There are two errors in the state
court’s analysis of Sears’ Sixth Amendment claim. First, the court curtailed a
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more probing prejudice inquiry because it placed undue reliance on the assumed
reasonableness of counsel’s mitigation theory. . . . Second, and more
fundamentally, the court failed to apply the proper prejudice inquiry.”). Even the
dissent in Sears focused on the rulings of the state trial court. See, e.g., id. at 960
(Scalia, J., dissenting) (“Since the habeas court made no legal error en route to its
Strickland conclusion, the only basis for reversing the judgment here would be
disagreement with the conclusion itself[.]”).
Sears was not an AEDPA habeas case, but that difference in procedural
context does not matter much, if at all. The Supreme Court had certiorari
jurisdiction in Sears pursuant to 28 U.S.C. § 1254(a), which provides for review of
“final judgments or decrees rendered by the highest court of a State in which a
decision could be had[.]” The AEDPA provision that the majority focuses on here,
28 U.S.C. § 2254(d), allows those held in custody “pursuant to the judgment of a
State court” to seek habeas relief, and instructs federal courts to not grant relief
unless the state court “decision” was contrary to or involved an unreasonable
application of clearly established federal law (as determined by the Supreme
Court). To my mind, §§ 1254(a) and 2254(d) are similar in that they allow federal
review of state court “judgments.”
I am not, of course, saying that there were two different judgments under
review in Sears, or that there are two different judgments under review in this case.
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The question we address is a different one: whether there should be a rebuttable
presumption that where there is a reasoned decision by a lower court, an
unexplained denial of relief by a state appellate court is based on the same
rationale articulated by the lower court. And Sears suggests that the answer to
that question is yes.
6. Two members of the Supreme Court believe that we erred in failing to
apply the Ylst look-through presumption to the Georgia Supreme Court’s summary
denial of a certificate of probable cause. See Hittson v. Chatman, 135 S. Ct. 2126,
2128 (2015) (Ginsburg, J., joined by Kagan, J., concurring in the denial of
certiorari) (“The Eleventh Circuit plainly erred in discarding Ylst. In Richter, the
only state court to reject the prisoner’s federal claim had done so in an unexplained
order. With no reasoned opinion to look through to, the Court had no occasion to
cast doubt on Ylst. To the contrary, the Court cited Ylst approvingly in Richter and
did again two years later in Johnson v. Williams, 568 U.S. ___, ___, n.1, 133 S. Ct.
1088, 1094 n.1 (2013).”). Two Justices do not a majority make, but their views
should be given due consideration.
7. As far as I can tell, all of the circuits to have considered the look-
through issue limit Richter to situations where there is no reasoned decision by any
state court. See Grueninger v. Dir., Va. Dep’t of Corr., 813 F.3d 517, 525–26 (4th
Cir. 2016) (“Richter addressed a situation in which a state habeas petition was
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presented directly to a state supreme court as an original petition and then denied
by that court in a one-sentence summary order, so that there was no reasoned
decision by any state court. . . . The situation is different when there is a state-court
decision explaining the rejection of a claim. When a state appellate court
summarily affirms a reasoned lower-court decision, or refuses a petition for
review, then under Ylst, a federal habeas court is to ‘look through’ the unexplained
affirmance[.]”) (internal citations omitted); Cannedy v. Adams, 706 F.3d 1148,
1158 (9th Cir. 2013) (“[I]t does not follow from Richter that, when there is a
reasoned decision by a lower state court, a federal habeas court may no longer
‘look through’ a higher state court’s summary denial to the reasoning of the lower
state court.”); Woolley v. Rednour, 702 F.3d 411, 422 (7th Cir. 2012) (explaining
that Richter, “[b]y its terms” is limited to cases “‘[w]here a state court’s decision is
unaccompanied by an explanation’”) (quoting Richter, 562 U.S. at 98). See also
Woodfox v. Cain, 772 F.3d 358, 369 (5th Cir. 2014) (“Under AEDPA, ‘we review
the last reasoned state court decision.’”) (emphasis added and citation omitted).
There should be strong reasons for creating a circuit split, and I do not see
any such reasons here. The views of the Fourth, Fifth, Seventh, and Ninth Circuits,
moreover, make practical sense. Starting with a result (the result reached in a
summary denial of relief), then coming up with hypothetical reasons to support that
result, and then assessing whether such imagined reasons are contrary to or an
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unreasonable application of clearly established Supreme Court precedent, is not
what appellate courts normally do. The notion of a court starting with a result, and
then searching far and wide for reasons to justify that result, turns the notion of
neutral decisionmaking on its head. Richter requires us to perform that sort of
analysis under AEDPA when there is one (and only one) summary state court
decision denying relief, but there is no good reason to expand its reach beyond that
limited procedural scenario.
8. The majority’s conclusion is contrary to what we have done in the
past. In published AEDPA habeas opinions both before and after Richter, we
looked through the Georgia Supreme Court’s summary denial of a certificate of
probable cause and reviewed the decision of the state trial court, i.e., the last
reasoned state court decision. See Putnam v. Head, 268 F.3d 1223, 1242–49 (11th
Cir. 2001) (Black, Hull, and Wilson, JJ.); Johnson v. Upton, 615 F.3d 1318, 1330
(11th Cir. 2010) (Carnes, Hull, and Pryor, JJ.); Bishop v. Warden, 726 F.3d 1243,
1255–58 (11th Cir. 2013) (Barkett, Marcus, and Martin, JJ.); Gissendaner v.
Seaboldt, 735 F.3d 1311, 1317–33 (11th Cir. 2013) (Carnes, Tjoflat, and Jordan,
JJ.). Apparently all of those panel decisions just misread Ylst and/or Richter.
9. Part of the majority’s rationale also clashes with circuit precedent.
According to the majority, a federal court would violate the requirements of § 2254
if it were to review the whole process by which a prisoner’s federal claim was
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adjudicated. Because § 2254 refers to a single adjudication and its resulting
decision, the majority concludes that a federal court may only review the final state
court decision, instead of inspecting how different state courts ruled before that
final decision was rendered. See id. The problem with the majority’s reasoning is
that it ignores (and would overrule or at least strongly conflict with) our decisions
in Windom v. Sec’y, Dep’t of Corr., 578 F.3d 1227 (11th Cir. 2009), Hammond v.
Hall, 586 F.3d 1289 (11th Cir. 2009), and Loggins v. Thomas, 654 F.3d 1204 (11th
Cir. 2011). In these AEDPA habeas cases we examined and reviewed both the last
state court decision and the penultimate state court decision.
For example, in Hammond the Georgia trial court, on collateral review, ruled
that counsel had not rendered deficient performance under the standard articulated
in Strickland. On appeal, the Georgia Supreme Court expressly declined to
address counsel’s performance, and instead held that the defendant failed to show
prejudice. When the case reached us, we did not have any trouble examining both
the trial court’s decision (on the performance prong) and the Georgia Supreme
Court’s decision (on the prejudice prong) in conducting AEDPA review. We held
that “where a state trial court rejects a claim on one prong of the ineffective
assistance of counsel test and the state supreme court, without disapproving that
holding, affirms on the other prong, both of those state court decisions are due
AEDPA deference.” Hammond, 586 F.3d at 1332.
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We therefore went on to review the reasoning given by both Georgia courts,
at each level of review, to decide whether “both reasons for rejecting the claim are
‘contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court.’” Id. (emphasis added). In
choosing to examine both decisions, we explained that “the critical fact . . . is that
the Georgia Supreme Court does not appear to have disagreed with the trial court’s
decision on the deficiency element. The court could have easily expressed its
disagreement, if any, but it did not do so.” Id. at 1331.
In other words, we held in Hammond that silence on the part of the Georgia
Supreme Court implied consent with the trial court’s reasoning. That, by the way,
is the assumption that Ylst is based on: “The maxim is that silence implies consent,
not the opposite—and courts generally behave accordingly, affirming without
further discussion when they agree, not when they disagree, with the reasons given
below.” Ylst, 501 U.S. at 804. But here, for some reason, silence does not imply
consent. Maybe I’m missing something, but it seems hard to reconcile the
majority’s categorical rejection of a look-through presumption outside the Ylst
procedural bar context with our decisions in cases like Hammond. See also
Loggins, 654 F.3d at 1217 (explaining, post-Richter, that “[o]ur case law also
makes clear that we accord AEDPA deference not only to the adjudications of state
appellate courts but also to those of state trial courts that have not been overturned
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on appeal”); Windom, 578 F.3d at 1249–51 (granting AEDPA deference to the
state trial court’s rejection of an ineffective assistance of counsel claim for lack of
prejudice, even though the Georgia Supreme Court affirmed on performance
grounds without reaching the prejudice issue). If, as the majority says, a federal
court would violate § 2254 by looking at how lower state courts ruled, as opposed
to the state supreme court ruled, then the underlying rationale for Windom,
Hammond, and Loggins has been wiped away by a series of keystrokes.
Unfortunately for the district courts that now have to implement today’s
ruling, and the lawyers who have to live with it, the majority does not explain why
it believes its holding is consistent with Windom and its progeny. As I understand
our circuit precedent following today’s decision, when a state supreme court denies
a claim in a reasoned opinion by relying on a single rationale and expressly
declines to address a different rationale articulated by the lower court, a federal
habeas court can nevertheless look through that state supreme court opinion and
review (with AEDPA deference) the different rationale offered by the lower court
in its reasoned opinion, on the theory that the supreme court’s silence indicates
acquiescence as to that unaddressed rationale. But when a state supreme court
denies a claim summarily—i.e., without saying anything whatsoever about the
lower court’s rationale—a federal habeas court cannot look through the summary
denial to the reasoned opinion of the lower court because in that scenario,
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apparently, silence does not indicate consent. Why this is so remains a mystery,
and it will be left to district courts and future Eleventh Circuit panels to sort out the
doctrinal mess.
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JILL PRYOR, Circuit Judge, joined by WILSON, MARTIN, JORDAN, and
ROSENBAUM, Circuit Judges, dissenting:
The question before the en banc Court today is whether a federal habeas
court should look through a state appellate court’s summary decision denying a
petitioner relief to the reasoning in a lower state court decision when deciding
whether the state appellate court’s decision is entitled to deference under 28 U.S.C.
§ 2254(d). “Looking through” means that the federal habeas court presumes that
when a state appellate court issues a summary decision, it has implicitly adopted
the reasons given in a lower state court’s decision for denying the petitioner’s
claims, absent strong evidence to rebut the presumption. The federal court then
reviews the lower court’s reasoning when deciding whether the state appellate
court’s decision is entitled to deference. By rejecting a look-through presumption,
the majority places a far heavier burden on habeas petitioners than the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires. I
reject the majority’s position because (1) Supreme Court precedent indicates we
should look through and (2) the majority opinion runs roughshod over the
principles of federalism and comity that underlie federal collateral review of state
court decisions.
First, although the United States Supreme Court has not explicitly held that
federal habeas courts must look through a summary state appellate court decision
to a lower court’s reasoning when deciding whether the state appellate court’s
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summary decision is entitled to deference under § 2254(d), the Supreme Court’s
decisions nonetheless support looking through. The Supreme Court first adopted a
look-through presumption in Ylst v. Nunnemaker, 501 U.S. 797 (1991), holding
that a federal habeas court should look through a summary state appellate court
decision to the last reasoned state court decision to determine whether the
summary decision rested on a state law procedural default. The Supreme Court’s
justification for the presumption—that the state appellate court’s summary decision
indicated “agree[ment] . . . with the reasons given below” for rejecting the
petitioner’s claim—suggests a look-through presumption should be broadly
applied. Id. at 804. But I acknowledge that in Ylst the Court did not consider
whether a federal habeas court should treat a state appellate court’s summary
decision as adopting the lower court’s reasons for rejecting the petitioner’s claims
on the merits.
Subsequently, in Harrington v. Richter, 562 U.S. 86 (2011), the Supreme
Court addressed federal court review of a summary state appellate court’s denial of
collateral relief that was the only state habeas decision. The Supreme Court held
that the federal court should defer to the summary decision “unless there was no
reasonable basis for the state court to deny relief.” Id. at 98. The majority
contends that Richter controls how federal habeas courts should review all state
appellate court summary decisions, but in Richter there was no reasoned decision
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from a lower court to look through to; thus, Richter did not address whether federal
habeas courts should look through.
Although neither Ylst nor Richter addressed the exact issue before us today,
in a companion case to Richter, Premo v. Moore, 562 U.S. 115 (2011), the
Supreme Court implicitly looked through an Oregon Court of Appeals summary
decision affirming the denial of relief to the state habeas trial court’s opinion to
determine whether the summary decision was entitled to deference under
§ 2254(d). Although the Supreme Court in Moore did not expressly state that it
was looking through, we should follow what the Supreme Court actually did in
Moore—and look through here. And the Supreme Court has given us other signals
indicating that we should look through that the majority largely ignores. The
majority’s extension of Richter also creates a circuit split, as it directly contravenes
the decisions of at least two other circuits.
Second, the majority opinion tramples on the principles of federalism and
comity that underlie federal collateral review. By rejecting a look-through
presumption, the majority opinion treats the reasoned opinion of a Georgia
superior court as a nullity merely because the Georgia Supreme Court subsequently
rendered a summary decision. Although the Georgia Supreme Court has never
explicitly stated that its summary decisions indicate agreement with the superior
court’s reasoning, there are good reasons to conclude that the Georgia Supreme
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Court’s silence indicates agreement with and adoption of the lower court’s
reasoning. This inference is supported by the way in which Georgia has structured
its habeas system to require a superior court to render a reasoned decision denying
relief only after discovery and an evidentiary hearing while allowing the Georgia
Supreme Court to issue a summary decision denying review; the Georgia Supreme
Court’s practice of issuing a reasoned decision denying an application for a
certificate of probable cause when it disagrees with the superior court’s reasoning;
and the Georgia Supreme Court’s continued use of summary decisions despite
knowing that the United States Supreme Court on direct review treats its silence as
indicating agreement with and adoption of the superior court’s reasoning. By
requiring federal habeas courts to ignore this evidence about what the Georgia
Supreme Court intended its summary decision to mean, the majority opinion
violates the principles of federalism and comity that serve as the foundation for
deference to state court proceedings under § 2254(d).
I am not alone in rejecting the majority’s position. Two United States
Supreme Court justices recently told us that we should use this en banc case as an
“opportunity to correct [our] error” in failing to apply a look-through presumption.
Hittson v. Chatman, 135 S. Ct. 2126, 2128 (2015) (Ginsburg, J., concurring in the
denial of certiorari where looking through would not entitle the petitioner to relief).
Justice Ginsburg, joined by Justice Kagan, wrote that we had “plainly erred” and
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should instead “‘look through’ [the Georgia Supreme Court’s summary]
adjudications . . . to determine the particular reasons why the state court rejected
the claim on the merits.” Id. Although the opinion of two justices of course does
not bind us, it nevertheless should give us pause about whether the majority has
correctly interpreted Ylst, Richter, and Moore or correctly applied the core
principles of federalism and comity undergirding federal habeas review under
§ 2254(d).
I. BACKGROUND
The question of whether we should adopt a look-through presumption arises
in the context of our review of Georgia death row inmate Marion Wilson’s federal
habeas petition. Mr. Wilson was convicted of malice murder and sentenced to
death. The Georgia Supreme Court affirmed the conviction and sentence. Mr.
Wilson petitioned the Superior Court of Butts County, Georgia for collateral relief,
arguing among other points that his trial counsel provided ineffective assistance by
failing to investigate mitigation evidence at the penalty phase. After discovery and
a two-day evidentiary hearing, the superior court denied Mr. Wilson’s petition in a
lengthy written order, determining that some of his claims were procedurally
defaulted under Georgia law and others failed on the merits. With respect to the
ineffective assistance of counsel claim based on counsel’s failure to investigate
mitigation evidence, the superior court explained that the claim failed for two
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reasons: counsel’s performance was not deficient and Mr. Wilson had not
demonstrated prejudice. Mr. Wilson applied for a certificate of probable cause to
appeal to the Georgia Supreme Court, which denied his application in a one-
sentence summary order. He then sought review in the United States Supreme
Court, which denied his petition for certiorari.
Mr. Wilson then petitioned for a writ of habeas corpus in federal court based
on ineffective assistance of counsel. The district court denied his petition,
concluding that the state court’s adjudication was entitled to deference under
28 U.S.C. § 2254(d). In deciding whether to defer to the state court’s adjudication
of Mr. Wilson’s claim, the district court looked through the Georgia Supreme
Court’s summary denial of the application for a certificate of probable cause to the
superior court’s reasoning. The district court acknowledged that “the conduct of
Wilson’s trial attorneys with regard to their investigation and presentation of
mitigation evidence is difficult to defend.” Order at 1 (Doc. 51). 1 But it denied
relief because even if the superior court unreasonably determined that trial
counsel’s performance was not deficient, the superior court’s determination that
Mr. Wilson could not establish prejudice was entitled to deference.
1
As the district court explained, just four months before the start of trial, the two lawyers
who served as Mr. Wilson’s trial counsel had not begun their mitigation investigation or even
decided who would be responsible for the mitigation investigation. Through trial, each attorney
believed the other was primarily responsible for developing the mitigation case. As a result, trial
counsel never interviewed any background witnesses. Although there were red flags about Mr.
Wilson’s background in documentary evidence, counsel failed to expand their investigation
beyond the records.
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Mr. Wilson appealed. After correctly determining that the Georgia Supreme
Court summary decision was the relevant state court decision for review, a panel of
this court held that it was not required to review the reasoned opinion of the
superior court and instead framed the issue as “whether there was any reasonable
basis for the [Georgia Supreme Court] to deny relief.” Wilson v. Warden, Ga.
Diagnostic Prison, 774 F.3d 671, 678 (11th Cir. 2014) (alteration in original)
(internal quotation marks omitted), reh’g en banc granted, op. vacated, No. 14-
10681 (11th Cir. July 30, 2015). We vacated the panel opinion to review en banc
whether we should look through to the superior court’s reasoning when deciding
whether the Georgia Supreme Court’s summary decision is entitled to AEDPA
deference. Although only Mr. Wilson’s case is presently before us, our resolution
of this issue will effect numerous other habeas petitioners in Georgia, including
many death row inmates.2
II. ANALYSIS
Section 2254(d) governs when a federal habeas court must defer to a state
court’s adjudication of a habeas claim. This provision forbids a federal court from
granting an application for a writ of habeas corpus “with respect to any claim that
was adjudicated on the merits in State court proceedings unless the adjudication of
2
Since February 2015, Georgia has executed nine individuals. Eight of them applied to
the Georgia Supreme Court for a certificate of probable cause after the state habeas trial court
denied relief. The Georgia Supreme Court denied each application in a summary order.
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the claim” in the state court “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; or . . . resulted in a decision
that was based on an unreasonable determination of the facts.” 28 U.S.C.
§ 2254(d); see Parker v. Sec’y for Dep’t of Corr., 331 F.3d 764, 775-76 (11th Cir.
2003) (describing § 2254(d) as requiring federal courts to give deference to state
court decisions).
Although § 2254(d) does not identify the state court decision to which we
defer when multiple state courts have reviewed the petitioner’s claim, the Supreme
Court has explained that under § 2254(d) a federal habeas court reviews only one
decision: “the last state-court adjudication on the merits.” Greene v. Fisher,
132 S. Ct. 38, 45 (2011). The majority and I agree that here the last state court
decision on the merits is the Georgia Supreme Court’s denial of Mr. Wilson’s
application for a certificate of probable cause. See Foster v. Chatman, 136 S. Ct.
1737, 1746 n.2 (2016). Accordingly, we agree that to pierce AEDPA deference
Mr. Wilson must show that the Georgia Supreme Court’s decision was contrary to,
or an unreasonable application of, clearly established federal law or based on an
unreasonable determination of the facts. The majority opinion and I part ways,
however, when it comes to the approach a federal habeas court should take in
applying § 2254(d)’s standard to the Georgia Supreme Court’s summary decision.
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I believe that we should presume the Georgia Supreme Court adopted the
superior court’s reasoning and in effect review whether the superior court’s
application of federal law and determination of the facts are entitled to deference.
To address why, I begin by explaining that a federal habeas court’s application of
§ 2254(d)’s standard depends upon whether the state court rendered a reasoned
decision. I then discuss why the federal habeas court should presume that when
the Georgia Supreme Court summarily denies an application for a certificate of
probable cause, it implicitly adopted the superior court’s reasoning. Because this
presumption allows the federal court to attribute reasoning to the Georgia Supreme
Court’s decision, I would have the federal court review whether the reasoning in
the Georgia superior court’s decision—which the Georgia Supreme Court
implicitly adopted in its summary decision—is entitled to deference under
§ 2254(d).
A. The Nature of Federal Review under § 2254(d) of State Court
Decisions
I begin with the nature of a federal court’s review of a state court decision
under § 2254(d). More specifically, when must a federal court review the actual
reasoning set forth in a state court decision and when must the court instead
hypothesize possible reasons that could have supported the state court decision? In
analyzing deference to a state court decision under § 2254(d), the Supreme Court
has applied two distinct modes of analysis. The first mode applies when there is a
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reasoned decision from the state court. I refer to this as the “reasoned-decision”
approach. In these cases, a federal habeas court reviews the reasoning set forth in
the state court decision and then determines whether that reasoning is entitled to
deference. The second mode applies when there is no reasoned state court
decision. I refer to this as the “unexplained-decision” approach. In such cases, the
federal habeas court may conjure up hypothetical arguments or theories that could
have supported the result the state court reached and then reviews whether those
arguments or theories are entitled to deference.
1. The Reasoned-Decision Approach
Under the reasoned-decision approach, in considering whether to defer to a
state court decision under § 2254(d), a federal habeas court reviews the reasoning
in the state court decision, not the result the state court reached. The Supreme
Court applied this approach when it pierced AEDPA deference in Wiggins v.
Smith. 539 U.S. 510 (2003).
In Wiggins, the petitioner, who was sentenced to death, argued that his trial
counsel rendered ineffective assistance by failing to investigate his background or
present mitigating evidence at his sentencing. Id. at 514. In state habeas
proceedings, the Maryland Court of Appeals rejected the ineffective assistance
claim, reasoning that because the defense attorneys had some information about
the petitioner’s background, they made a tactical choice not to present a mitigation
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defense. Id. at 527. The United States Supreme Court pierced AEDPA deference
because the state court’s application of legal principles was unreasonable, in that
the Maryland Court of Appeals failed to consider whether the petitioner’s counsel
should have investigated further. See id. (“In assessing the reasonableness of an
attorney’s investigation, . . . a court must consider not only the quantum of
evidence already known to counsel, but also whether the known evidence would
lead a reasonable attorney to investigate further.”). Importantly, the Supreme
Court never considered hypothetical arguments or theories that could have
supported the Maryland Court of Appeals’s decision to deny relief, because for
purposes of piercing AEDPA deference it was sufficient that the reasoning of that
decision unreasonably applied clearly established federal law. Id. at 534.3
Significantly, if the petitioner demonstrates that the state trial court’s
reasoning was contrary to or an unreasonable application of clearly established
federal law or based on an unreasonable determination of fact, he has pierced
3
The Supreme Court has applied the reasoned-decision approach many times. See, e.g.,
Porter v. McCollum, 558 U.S. 30, 42 (2009) (holding that state court unreasonably applied
clearly established law because in its analysis the court “either did not consider or unreasonably
discounted the mitigation evidence adduced in the postconviction hearing”); Panetti v.
Quarterman, 551 U.S. 930, 952-53 (2007) (explaining that state court’s determination that it had
provided petitioner with adequate procedures to resolve his competency claim unreasonably
applied clearly established federal law); see also Early v. Packer, 537 U.S. 3, 8 (2002)
(explaining that no deference is required under § 2254 when “the reasoning” in a state court
decision is contrary to clearly established law). So too have we. See Evans v. Sec’y Dep’t of
Corr., 703 F.3d 1316, 1328 (11th Cir. 2013) (en banc) (Pryor, William, J.) (explaining that under
AEDPA a federal habeas court must identify “the arguments supporting the decision” of the
Florida Supreme Court and defer if “‘it is possible that fairminded jurists could disagree that
those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme
Court]’” (alteration in original)).
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AEDPA deference and is entitled to de novo review from the federal habeas court.
See Panetti v. Quarterman, 551 U.S. 930, 954 (2007) (holding that state habeas
court decision was not entitled to deference under § 2254(d) and then
“consider[ing] petitioner’s claim on the merits”). As a result, the district court
considering his habeas claim “is no longer bound by § 2254(d) or limited to
consideration of the facts developed in the state court record.” Daniel v. Comm’r,
Ala. Dep’t of Corr., 822 F.3d 1248, 1280 (11th Cir. 2016).
2. The Unexplained-Decision Approach
The Supreme Court recognized an exception to the reasoned-decision
approach that allows a federal habeas court to consider hypothetical arguments or
theories that could have supported the state court decision when the state court
does not explain its reasons for denying relief—what I am calling the unexplained-
decision approach. When federal habeas courts apply the unexplained-decision
approach, they in effect review whether the result reached by the state court is
entitled to deference. See Richter, 562 U.S. at 98. A chronology of Supreme
Court decisions illustrates that the unexplained-decision approach was intended to
be a narrow exception that applies only when no state court has provided reasons
for rejecting the petitioner’s claims.
In Richter, the Supreme Court first adopted the unexplained-decision
approach when confronted with how to apply AEDPA’s deferential standard to a
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California Supreme Court summary decision that was the only state court decision
to address the petitioner’s claim. In Richter, the petitioner sought habeas relief on
his ineffective assistance of counsel claim in the first instance in the California
Supreme Court, as permitted under California procedure. 4 The California Supreme
Court denied his petition in a one-sentence order. Id. at 96. The petitioner then
sought federal habeas relief. The Ninth Circuit concluded that the California
Supreme Court’s decision was not entitled to deference because its decision
denying relief was unreasonable. Id. at 97. The United States Supreme Court
reversed, concluding that the California Supreme Court’s summary decision was
entitled to deference under § 2254(d). Id. at 113.
The United States Supreme Court faced the dilemma of how a federal
habeas court should review the California Supreme Court’s summary decision
under § 2254(d). Although the petitioner argued that the summary decision was
not on the merits, which would make § 2254(d) inapplicable, the United States
Supreme Court rejected this argument. Id. at 98-99. And because there was no
state court decision explaining why the petitioner’s claim failed, it was impossible
for a federal habeas court to apply the reasoned-decision approach. The Supreme
Court resolved this problem by announcing a new approach to applying
4
Each year more than 3,400 original petitions for a writ of habeas corpus are filed
directly with the California Supreme Court, making up over one-third of that court’s caseload.
See Richter, 562 U.S. at 99.
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§ 2254(d)’s standard. The Supreme Court recognized that in some cases federal
habeas courts review the state habeas court’s reasoning and in others the result:
Under § 2254(d), a habeas court must determine what arguments or
theories supported or, as here, could have supported, the state court’s
decision; and then it must ask whether it is possible fairminded jurists
could disagree that those arguments or theories are inconsistent with
the holding in a prior decision of this Court.
Id. at 102. Because the California Supreme Court’s decision was unaccompanied
by an explanation, the federal habeas court could consider arguments or theories
that “could have supported the state court decision.” Id. The petitioner then had to
show that “there was no reasonable basis for the state court to deny relief.” Id. at
98. In effect, the petitioner had to show that the result reached by the California
Supreme Court was unreasonable. And in deciding whether the result—that is, the
denial of relief—was unreasonable, the federal habeas court could consider only
the record that was before the state appellate court. Cullen v. Pinholster, 563 U.S.
170, 180-81 (2011).
After Richter, circuits were split about the proper mode for federal habeas
courts to use when the last state court decision was accompanied by an
explanation, with some circuits treating Richter as requiring federal habeas courts
to review only the result reached by a state court even when the state court decision
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was accompanied by an explanation.5 Compare Green v. Thaler, 699 F.3d 404,
414 (5th Cir. 2012) (explaining that federal habeas courts “review the state court’s
actual decision, not the written opinion on which it is based”), with Woolley v.
Rednour, 702 F.3d 411, 422 (7th Cir. 2012) (concluding that Richter’s
unexplained-decision approach applies only when “a state court decision is
unaccompanied by an explanation” (internal quotation marks omitted)), and
Rayner v. Mills, 685 F.3d 631, 637-38 (6th Cir. 2012) (same). Then, in Brumfield
v. Cain, 135 S. Ct. 2269 (2015), the Supreme Court clarified that under § 2254(d)
federal habeas courts must apply the reasoned-decision approach whenever a state
court decision is explained, meaning that federal courts should consider
hypothetical arguments or theories only when there was no reasoned state court
decision at all.
In Brumfield, the Supreme Court pierced AEDPA deference because the
Louisiana state trial court’s denial of an evidentiary hearing on the petitioner’s
claim that he could not be executed on account of his intellectual disability was
based on unreasonable factual determinations. Id. at 2274. The state of Louisiana
argued that even if the state habeas court had made unreasonable determinations of
5
To be clear, this circuit split—about whether Richter required federal habeas courts to
review the result reached, not the reasoning, of a state court—is distinct from the circuit split
created by the majority opinion in this case, which concerns whether a federal habeas court
should presume that a state appellate court’s summary decision adopted a lower court’s reasons
for rejecting the petitioner’s claim.
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fact, its decision was entitled to deference under § 2254(d) because the result was
reasonable given the petitioner’s failure to present evidence that his intellectual
disability manifested before he reached adulthood. Id. at 2282. Put another way,
Louisiana argued that the Supreme Court should defer to a hypothetical
justification for the denial of relief, even though the state habeas court had issued a
reasoned decision.
The Supreme Court rejected Louisiana’s position, explaining that because
“the state trial court never made any finding that [the petitioner] had failed to
produce evidence suggesting he could meet this age-of-onset requirement,” there
was “no determination on that point to which a federal court must defer in
assessing whether [the petitioner] satisfied § 2254(d).” Id. Distinguishing Richter,
the Supreme Court explained that federal habeas courts must defer to “hypothetical
reasons [the] state court might have given for rejecting [the] federal claim” only
when there is “no ‘opinion explaining the reasons relief has been denied.’” Id. at
2282-83 (quoting Richter, 562 U.S. at 98).6
In many cases, it is clear whether the reasoned-decision or unexplained-
decision approach should apply. When the last state court decision on the merits
6
The majority’s position that in Brumfield the Supreme Court “had no opportunity to
apply or qualify Richter” simply cannot be squared with the Supreme Court’s decision. Maj. Op.
at 30. In Brumfield the Supreme Court clarified that federal habeas courts should not use the
unexplained-decision approach announced in Richter when there is a reasoned state court
decision.
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explains why the petitioner is not entitled to relief, the Supreme Court has applied
the reasoned-decision approach when considering whether to defer to the state
court decision under § 2254(d). Conversely, when no state court has issued a
reasoned decision, the Supreme Court has told us that the federal habeas courts
should use the unexplained-decision approach. This case requires us to consider a
more difficult question: how should a federal habeas court treat a state appellate
court’s unexplained summary decision when a lower state court has rendered a
reasoned decision?
B. Looking Through a Summary State Appellate Court Decision When
a Lower Court Has Rendered a Reasoned Decision
I would adopt a look-through rule and presume that when a state appellate
court renders a summary decision after a lower state court issued a reasoned
decision, the state appellate court adopted the lower court’s reasoning. To be clear,
with a look-through presumption, the federal habeas court still would review the
last state court decision on the merits—the summary decision. The presumption
simply provides a way of identifying the arguments or theories on which the state
appellate court relied in its summary decision for the purpose of affording
deference under § 2254(d). Because the presumption permits reasoning to be
attributed to the Georgia Supreme Court’s decision, I would have a federal habeas
court use the reasoned-decision approach to review the Georgia Supreme Court’s
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decision.7 As I explain below, adopting a look-through approach is appropriate for
two reasons: (1) it is more consistent with the Supreme Court’s leading decisions,
and (2) it best gives effect to the principles of federalism and comity that undergird
§ 2254(d).
1. The Leading Supreme Court Decisions Support a Look-
Through Presumption.
The Supreme Court’s decisions in Ylst, 501 U.S. 797, and Moore, 562 U.S.
115, inform us why federal habeas courts should apply a look-through presumption
when deciding whether a state appellate court’s summary decision is entitled to
deference under § 2254. Together these cases demonstrate that it is appropriate for
7
I note that the majority opinion is utterly inconsistent with our decision in Hammond v.
Hall, 583 F.3d 1289 (11th Cir. 2009), in which we reviewed both the trial court’s decision and
the Georgia Supreme Court’s decision under § 2254(d). In Hammond, the petitioner brought an
ineffective assistance of counsel claim in Georgia superior court. The superior court denied the
claim on the basis that the petitioner failed to establish deficient performance, without addressing
prejudice. 586 F.3d at 1330. The petitioner then sought to appeal to the Georgia Supreme Court.
After granting a certificate of probable cause, the Georgia Supreme Court affirmed the superior
court’s decision but held that the petitioner failed to show prejudice and explicitly declined to
address deficient performance. Id. Reviewing the petitioner’s federal habeas petition, we held
that “where a state trial court rejects a claim on one prong of the ineffective assistance of counsel
test and the state supreme court, without disapproving that holding, affirms on the other prong,”
the petitioner must show both reasons for rejecting the claim are not entitled to deference under
§ 2254(d). Id. at 1332.
Our decision in Hammond can be understood in one of two ways: either (1) federal courts
may review more than one state court decision when applying § 2254(d), or (2) federal courts
may presume that a state appellate court by its silence adopted a lower court’s reasoning. Either
way the majority has countermanded Hammond. First, the majority rejects the position that
federal habeas courts may consider more than one state court decision under § 2254(d). See Maj.
Op. at 8 (directing that under § 2254(d), we only “review one decision”). Second, the majority
forbids federal habeas courts from presuming that a state appellate court silently adopted the
reasoning of a lower court. See id. at 21. Although the en banc court is not bound by prior panel
precedent, I am troubled that the majority opinion never acknowledges its conflict with
Hammond or offers an explanation for departing from this precedent.
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federal courts to presume that a state appellate court’s summary decision indicates
agreement with the lower court’s reasons for rejecting the petitioner’s habeas claim
on the merits.
a. Ylst v. Nunnemaker
The Supreme Court first recognized the look-through presumption in Ylst,
where it treated a state appellate court’s summary decision as adopting the grounds
in the last reasoned decision that rejected the petitioner’s habeas claim. In Ylst, a
California inmate argued on direct appeal that the prosecution introduced evidence
that was inadmissible under Miranda v. Arizona, 384 U.S. 436 (1966). Ylst,
501 U.S. at 799. The California Court of Appeal affirmed, explaining that under a
state procedural rule the Miranda claim could not be raised for the first time on
appeal. Id. The inmate petitioned, in turn, a California trial court, the California
Court of Appeal, and the California Supreme Court for collateral relief. Each court
summarily denied relief. Id. at 800. The inmate then sought a writ of habeas
corpus in federal district court. The Ninth Circuit granted relief, holding that the
California Supreme Court’s silent denial of collateral relief lifted the procedural
bar imposed on direct review. Id. at 801. The United States Supreme Court
granted certiorari to address “how federal courts in habeas proceedings are to
determine whether an unexplained order (by which we mean an order whose text
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or accompanying opinion does not disclose the reason for the judgment) rests
primarily on federal law.” Id. at 802.
The Supreme Court held that federal courts should apply a look-through
presumption to determine whether a state court’s unexplained order applied a
procedural bar, meaning “[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.” Id. at 803. This presumption
may be rebutted with “strong evidence” that the later state court decision did not
rely upon a procedural default, for example, where “a retroactive change in law
had eliminated that ground as a basis of decision, and the court which issued the
later unexplained order had directed extensive briefing limited to the merits of the
federal claim.” Id. at 804.
Although the question before the Supreme Court concerned only whether the
later summary decision rested on a procedural ground like the last reasoned
decision, the Supreme Court justified the look-through presumption in broad terms:
The maxim is that silence implies consent, not the opposite—and
courts generally behave accordingly, affirming without further
discussion when they agree, not when they disagree, with the reasons
given below. The essence of unexplained orders is that they say
nothing. We think that a presumption which gives them no effect—
which simply “looks through” them to the last reasoned decision—
most nearly reflects the role they are ordinarily intended to play.
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Id. at 804. Even if dicta, this broad reasoning suggests that a look-through
presumption is appropriate not only to determine whether the state appellate court
applied a procedural default, but also to identify the reasons why the state appellate
court rejected the merits of the petitioner’s claims. 8
The majority opinion reads Ylst as supporting only a presumption that “a
summary affirmance rests on the same general ground—that is, a procedural
ground or on the merits—as the judgment under review.” Maj. Op. at 17. The
majority relies on language in Ylst stating it would be “‘most improbable’ that an
‘unexplained order leaving in effect a decision . . . that expressly relies upon
procedural bar’ actually ‘reject[ed] that bar and decid[ed] the federal question.’”
Id. (alterations in original) (quoting Ylst, 501 U.S. at 803-04). Importantly, though,
the next sentence in Ylst explains why such a conclusion would be improbable:
because courts affirm “without further discussion when they agree, not when they
disagree, with the reasons given below.” Ylst, 501 U.S. at 804. Indeed, the
Supreme Court recently has called into question the majority’s contention that
Ylst’s look-through presumption means only that the state appellate court agreed
with the same general ground as the lower court, not its precise reasoning. See
Kernan v. Hinojosa, 136 S. Ct. 1603 (2016) (holding that Ylst presumption was
overcome when there was strong evidence that the California Supreme Court’s
8
We must, of course, bear in mind that “there is dicta and then there is dicta, and then
there is Supreme Court dicta.” Schwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir. 2006).
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summary decision denying relief did not rest on precisely the same procedural
ground as the California trial court’s decision, without considering whether the
California Supreme Court agreed with the more general conclusion that some
procedural ground barred review).
I acknowledge there was no holding in Ylst that federal habeas courts should
presume that a state appellate court adopted a lower court’s reasons for rejecting a
habeas petitioner’s claims on the merits. But the rationale in Ylst—that a summary
affirmance indicates agreement with the lower court’s reasons absent strong
evidence to the contrary—equally supports treating a state appellate court’s
summary affirmance as adopting a lower court’s reasoning for rejecting the merits
of the petitioner’s claims. 9
b. Premo v. Moore and Harrington v. Richter
Moore and Richter were companion cases—argued on the same day and
then decided on the same day in opinions authored by Justice Kennedy. The
majority contends Richter dictates that we must review the Georgia Supreme
9
I note that prior to Richter, when reviewing state appellate court decisions for purposes
of § 2254(d), we extended Ylst beyond the procedural default context and presumed that a state
appellate court’s summary affirmance adopted the lower court’s reasons for rejecting the
petitioner’s claims on the merits. See McGahee v. Ala. Dep’t of Corr., 560 F.3d 1252, 1261 n.12
(11th Cir. 2009); Putman v. Head, 268 F.3d 1223, 1232, 1242 (11th Cir. 2001) (looking through
Georgia Supreme Court’s summary denial to superior court’s reasoning). We were not alone:
other circuits similarly interpreted Ylst. See, e.g., Cannedy v. Adams, 706 F.3d 1148, 1158 (9th
Cir. 2013) (explaining it was a “common practice of the federal courts to examine the last
reasoned state decision to determine whether a state-court decision is ‘contrary to’ or an
‘unreasonable application of’ clearly established federal law”).
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Court’s summary decision using the unexplained-decision approach. But Richter
did not address whether federal habeas courts should look through, because in
Richter the California Supreme Court was the only state court to render a decision
on the petitioner’s claims. Although Richter never addressed what mode federal
habeas courts should use when there is both a summary state appellate court
decision and a reasoned lower court decision, the majority opinion extends
Richter’s unexplained-decision approach beyond the “subset of habeas petitions
where there is no reasoned decision from any state court,” concluding that “[t]here
is no basis in [§ 2254(d)] or Richter for two divergent analytical modes—one when
there is no previous reasoned decision below and another for when there is.” 10
Maj. Op. at 16. I disagree.
The majority’s extension of Richter’s unexplained-decision approach to all
summary state court decisions creates tension with the text and structure of
§ 2254(d). Congress structured § 2254(d) to provide for two distinct bases, set
forth in separate subsections, for piercing AEDPA deference when a state court
decision is (1) contrary to or an unreasonable application of clearly established
federal law or (2) based on an unreasonable determination of the facts. See
10
Nothing in § 2254(d) or the case law interpreting it supports the majority’s position
that all summary state appellate court decisions must be reviewed in the same way, regardless of
whether there was a reasoned decision from a lower court. Indeed, the majority’s emphasis on
the need for a uniform approach ignores that the Supreme Court has already applied two distinct
analytical modes for applying § 2254(d)’s standard.
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28 U.S.C. § 2254(d)(1), (2); see also Rice v. Collins, 546 U.S. 333, 342 (2006)
(“The question whether a state court errs in determining the facts is a different
question from whether it errs in applying the law.”). If a federal habeas court
limits its review to the summary decision from the Georgia Supreme Court, it may
be able to determine that, based on the record and state of the law, the Georgia
Supreme Court’s decision was unreasonable. But it will be unable to determine
whether the decision was unreasonable because the state court’s analysis was
(1) contrary to or an unreasonable application of law or (2) based on an
unreasonable determination of the facts. Assume, for example, that a summary
denial is issued in a case alleging ineffective assistance of counsel based on the
failure to investigate potential mitigation evidence. The Georgia Supreme Court’s
summary denial may have been based on an erroneous factual finding that counsel
did investigate mitigation evidence or, alternatively, the denial may have been
based on a correct determination of fact but a misapplication of Supreme Court
precedent like Wiggins, 539 U.S. 510, or Rompilla v. Beard, 545 U.S. 374 (2005).
The federal habeas court would have no way to know which it was.
I acknowledge that in Richter the Supreme Court implicitly accepted that
federal habeas courts may blur the distinction between § 2254(d)(1) and (2) when
reviewing a summary state court decision if there was no reasoned decision from
any state court. But given the inherent tension between Richter and the structure of
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§ 2254(d), Richter’s unexplained-decision approach should not be extended to
apply when there is a reasoned decision from a state court.
Although Justice Kennedy did not address in Richter the approach that
federal habeas courts should apply to review a summary state appellate court
decision when there is a reasoned decision from a lower court, his opinion in
Moore implicitly answered this question and supports limiting the unexplained-
decision approach to cases where no reasoned state court decision exists. Put
another way, Moore shows that the approach a federal habeas court takes to review
a state appellate court’s summary decision turns on whether the lower state court
rendered a reasoned decision. After all, in Moore, the Supreme Court looked
through the state appellate court’s summary decision on the merits to whether the
lower court had given reasons for denying the petitioner’s claim.
After pleading no contest to a felony murder charge, Moore sought a writ of
habeas corpus in Oregon state trial court, alleging he had been denied effective
assistance of counsel when his attorney failed to file a motion to suppress his
confession. 562 U.S. at 119. The state habeas trial court held an evidentiary
hearing and denied Moore’s habeas claim on the ground that it would have been
fruitless for his counsel to file a motion to suppress in light of his other admissible
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confessions. Id. at 119-20. The Oregon Court of Appeals “affirmed without
opinion.” Moore v. Palmateer, 26 P.3d 191 (Or. Ct. App. 2001). 11
Moore next filed in federal court a petition for a writ of habeas corpus
claiming ineffective assistance of counsel. Moore, 562 U.S. at 120. After the
district court denied relief and the Ninth Circuit reversed, the United States
Supreme Court considered whether under § 2254(d) it was required to defer to the
last state court decision on the merits, which was the summary decision of the
Oregon Court of Appeals. 12 Although the Supreme Court never explicitly stated
that it was looking through, its discussion of the content of the state trial court’s
decision shows that it looked through the Oregon Court of Appeals’s summary
decision. Indeed, the Supreme Court quoted directly from the state trial court’s
decision, showing that it treated the appellate court’s summary denial as adopting
that decision. See id. at 123 (“Finding that any ‘motion to suppress would have
been fruitless,’ the state postconviction court concluded that Moore had not
received ineffective assistance of counsel.” (quoting state trial court decision)).
The Supreme Court’s focus on the state trial court’s reasoning demonstrates that
when the Supreme Court reviews a state appellate court’s summary decision, it
11
The Oregon Supreme Court then denied the petitioner’s request for discretionary
(certiorari-like) review. Moore v. Palmateer, 30 P.3d 1184 (Or. 2001).
12
Under Oregon law, the Oregon Court of Appeals’s summary affirmance was a decision
on the merits. See Or. Stat. § 34.710 (providing petitioner the right to appeal a trial court
judgment refusing to allow a habeas writ).
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presumes that the summary decision adopted the lower court’s reasons for rejecting
the claim.
In Moore, the state trial court’s rationale was indeterminate, though, because
its decision “did not specify” whether it denied relief “because there was no
deficient performance under Strickland or because Moore suffered no Strickland
prejudice, or both.” Id. Because the trial court—and via the look-through
presumption the Oregon Court of Appeals—inadequately identified the basis on
which the petitioner’s claim failed and in effect rendered an unexplained decision,
the Supreme Court ultimately applied the unexplained-decision approach to review
the state court’s decision. Id. If, as the majority contends, the United States
Supreme Court was not looking through, the Supreme Court would have
considered only the Oregon Court of Appeals’s summary decision and would have
had no reason to explain why the state trial court’s reasoning was indeterminate.
Again, I concede that neither Ylst nor Richter expressly answers the question
of whether we should look through a state appellate court’s summary decision for
purposes of deciding whether that decision is entitled to deference under § 2254(d).
But when that very scenario came before the Supreme Court in Moore—authored
by Justice Kennedy and issued on the very same day as his opinion in Richter—the
Court implicitly applied a look-through presumption to try to ascertain the
reasoning behind the Oregon Court of Appeals’s summary decision. Moore should
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guide our analysis here: it demonstrates that federal habeas courts should
(1) presume that the state appellate court adopted the lower court’s reasoning,
(2) identify the actual reasoning set forth in the lower court’s decision, and then
(3) apply the reasoned-decision approach to determine whether those reasons are
entitled to deference under § 2254(d).
c. Justice Ginsburg’s Special Concurrence in Hittson v. GDCP
Explains that We Should Look Through.
After Moore, Justice Ginsburg wrote an opinion specially concurring in the
denial of certiorari in Hittson to make clear that we should look through. Post-
Richter, in Hittson, a Georgia death row inmate sought certiorari after our Court
affirmed the denial of his federal habeas petition. Our Court refused to look
through the Georgia Supreme Court’s summary decision denying a certificate of
probable cause and instead reviewed the Georgia Supreme Court’s decision using
the unexplained-decision approach. Hittson v. GDCP Warden, 759 F.3d 1210,
1232 n.25 (11th Cir. 2014), cert. denied sub nom. Hittson v. Chatman, 135 S. Ct.
2126 (2015). Although the Supreme Court denied certiorari, Justice Ginsburg, in a
concurrence joined by Justice Kagan, explained that Richter did not require federal
habeas courts to “hypothesize reasons that might have supported” the Georgia
Supreme Court’s unexplained order because there was a reasoned decision from a
lower court, meaning the state court’s “reasons can be ascertained.” Hittson,
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135 S. Ct. at 2127-28 (Ginsburg, J., concurring in denial of certiorari).13 Of
course, Justice Ginsburg’s concurrence is not binding on us. But it nevertheless
should not be ignored: it both reflects the view of at least two justices on the
question before us and correctly explains why we should look through here.
Importantly, Justice Ginsburg’s concurrence in Hittson was issued the same
week that the Supreme Court in Brumfield affirmed that Richter’s unexplained-
decision approach applies only when there is no reasoned decision from any state
court. These cases taken together show the majority is wrong to reject a look-
through presumption and extend the unexplained-decision approach beyond the
particular scenario that the Supreme Court faced in Richter—that is, when there is
no reasoned decision from any state court rejecting the petitioner’s claim. 14
d. The Majority Opinion Creates a Circuit Split.
The majority contends Richter dictates that we should not look through, but
no other circuit has adopted its position. Instead, we are the only circuit—out of
13
Although Justice Ginsburg disagreed with our Court’s rejection of the look-through
presumption, she ultimately concurred in the denial of Mr. Hittson’s petition because the state
trial court’s reasoning was entitled to deference under § 2254(d). See Hittson, 135 S. Ct. at 2128
(“I am convinced that the Eleventh Circuit would have reached the same conclusion had it
properly applied Ylst.”).
14
Indeed, the combination of the Hittson concurrence and Brumfield caused the Georgia
Attorney General to change his position in this case because “[i]t simply does not seem to be the
better choice to refuse to look at the last reasons given by a state court in deciding a claim and
[Richter] provides no language suggesting that the last reasoned opinion should not be looked to
for federal habeas review.” Appellee Br. at 18. Although this concession certainly does not bind
us, it is telling that Georgia’s Attorney General changed his position even though the result
would be that petitioners face a lighter, and the state a correspondingly heavier, burden on
federal review of summary denials of habeas relief.
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three to confront the issue—to hold that federal habeas courts should not look
through to find the reasons a state appellate court denied the petitioner’s claims on
the merits and should instead apply the unexplained-decision approach whenever a
state court renders a summary decision, even when there is a reasoned decision
from a lower court. See Grueninger v. Dir., Va. Dep’t of Corr., 813 F.3d 517, 526
(4th Cir. 2016) (“[W]e may assume that the Supreme Court of Virginia has
endorsed the reasoning of the Circuit Court in denying Grueninger’s claim, and it
is that reasoning that we are to evaluate against the deferential standards of
§ 2254(d).”); Cannedy v. Adams, 706 F.3d 1148, 1159 (9th Cir. 2013) (explaining
that “Richter does not change our practice of ‘looking through’ summary denials to
the last reasoned decision—whether those denials are on the merits or denials of
discretionary review” and then applying the reasoned-decision approach (footnote
omitted)). 15
The majority opinion provides no good reason for creating a circuit split. Its
attack on the reasoning of the Fourth and Ninth Circuits is based on its flawed
assumption that the unexplained-decision approach applies to all state court
summary decisions, even where there is a reasoned decision from a lower state
court. But, as explained above, Richter does not address whether federal habeas
15
In addition, at least one other circuit has in dicta suggested that it would look through a
state appellate court’s summary decision on the merits to the last reasoned opinion. See Woodfox
v. Cain, 772 F.3d 358, 359 (5th Cir. 2014) (“Under AEDPA, ‘we review the last reasoned state
court decision.’”).
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court should look through, and the majority opinion ignores that the Supreme
Court in Moore implicitly looked through.
2. Principles of Federalism and Comity Support a Look-Through
Presumption.
Even if the Supreme Court had not recognized that federal habeas courts
should look through a state appellate court’s summary decision when reviewing
that decision under § 2254(d), we should adopt a look-through presumption
because it best honors principles of federalism and comity. The majority and I
agree that principles of federalism and comity should guide our analysis. We
disagree, however, about how to apply these principles here. The majority believes
these principles compel rejection of a look-through rule, but I believe these
principles lead inescapably to the conclusion that federal habeas courts should treat
a state appellate court’s summary decision as adopting the reasons given by the
lower court for denying a petitioner’s claims on the merits.
I conclude that adopting a look-through presumption best serves principles
of federalism and comity for four reasons. First, although the Georgia Supreme
Court has never stated explicitly that it agrees with the superior court’s reasons for
rejecting a petitioner’s claims when it renders a summary decision, there is strong
support for the inference in Georgia procedure and the Georgia Supreme Court’s
practices.
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Second, although principles of federalism and comity prohibit a federal
habeas court from forcing a state court to set forth reasons why it rejected a
petitioner’s claim, contrary to the majority’s contention looking through imposes
no opinion-writing standard. This is because a state appellate court can overcome
the look-through presumption by something as simple as issuing a one-sentence
summary decision stating that it disagrees with the lower court’s reasoning but
agrees that the petitioner is not entitled to relief.
Third, looking through allows federal habeas courts to respect and give
effect to the different ways that states have chosen to structure their collateral
review systems. More specifically, looking through allows federal habeas courts to
treat a summary state appellate court decision that is the product of a state
collateral review system in which no state court has rendered a reasoned decision
differently from a summary state appellate court decision that is the product of a
state collateral review system in which a lower court has rendered a reasoned
decision.
Fourth, I disagree with the majority’s argument that looking through is
inappropriate because federal appellate courts do not treat their summary decisions
as adopting the reasoning of lower courts. Federal practice should not dictate what
a state appellate court’s summary decision means, particularly where, as here, there
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is evidence that the Georgia Supreme Court implicitly adopted the lower court’s
reasoning.
a. Looking Through Accurately Captures What the Georgia
Supreme Court Intends its Summary Decisions to Mean.
On the most basic level, the majority opinion’s refusal to look through the
Georgia Supreme Court’s summary denial of an application for a certificate of
probable cause offends principles of federalism because it results in federal courts
ignoring the superior court’s reasoned decision despite evidence that the Georgia
Supreme Court implicitly adopted that reasoning. AEDPA leaves “primary
responsibility with the state courts” for adjudicating habeas claims. Pinholster,
563 U.S. at 182. But the majority opinion impinges this responsibility by
transforming the superior court’s reasoned decision into a nullity, upsetting
AEDPA’s careful balance between the state and federal systems.
The majority opinion treats the superior court’s decision as a nullity because
the Georgia Supreme Court subsequently issued a decision denying an application
for a certificate of probable cause, albeit in a summary opinion. In my view,
Georgia’s statutory procedures as well as the Georgia Supreme Court’s practices
support the conclusion that the Georgia Supreme Court’s silent denial of an
application for a certificate of probable cause indicates agreement with and
adoption of the superior court’s reasoning. This evidence comes in three forms:
(1) the structure of Georgia’s collateral review system; (2) the Georgia Supreme
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Court’s practice of issuing reasoned denials of certificates of probable cause when
it agrees with the superior court’s decision to deny relief but disagrees with the
superior court’s reasoning; and (3) the Georgia Supreme Court’s continued use of
summary denials of certificates of probable cause after the United States Supreme
Court on direct review implicitly treated the decision as adopting the superior
court’s reasoning.
First, the way in which Georgia has set up its habeas system suggests that
the Georgia Supreme Court’s summary denial indicates agreement with the
superior court’s reasoning. Georgia law requires a petitioner to seek habeas relief
in a superior court in the first instance, O.C.G.A. § 9-14-43, and mandates that the
superior court issue a reasoned decision including written findings of fact and
conclusions of law, id. § 9-14-49. The State limits the scope of appellate review,
requiring petitioners to apply for a certificate of probable cause to appeal, id. § 9-
14-52, and allowing the Georgia Supreme Court to issue a certificate of probable
cause only when the petitioner has demonstrated arguable merit. See Foster,
136 S. Ct. at 1746 n.2. Although the Georgia Supreme Court may deny an
application for a certificate of probable cause in a summary decision, the superior
court must first render a reasoned decision.16 See O.C.G.A. § 9-14-49.
16
Other states, like Georgia, have adopted systems that permit their appellate courts to
resolve appeals from denials of habeas relief in summary decisions on the merits. In Florida,
habeas petitioners not sentenced to the death penalty may appeal state habeas trial court
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Second, the Georgia Supreme Court’s practice of issuing a reasoned denial
of an application for a certificate of probable cause when it disagrees with the
superior court’s reasoning but agrees with the result further supports the conclusion
that the Georgia Supreme Court’s summary denial indicates agreement with the
superior court’s reasoning. Although the Georgia Supreme Court routinely denies
applications for certificates of probable cause in summary decisions, it has
sometimes provided reasons why it denied an application when it agreed with the
result the superior court reached—that is, the denial of relief—but disagreed with
the superior court’s reasons. For example, the Georgia Supreme Court explained
in Tollette v. Upton that it denied an application because, although the superior
court applied the incorrect legal standard to evaluate prejudice, under the correct
standard the petitioner failed to demonstrate that his claim had arguable merit.
Tollette v. Upton, No. S13E1348 (Ga. Mar. 28, 2014); see also Rivera v.
Humphrey, No. S13E0063 (Ga. Sept. 9, 2013) (denying application for certificate
of probable cause even though superior court applied the wrong standard because
“after independently applying the correct legal principle to the facts as found by
the [superior] court, . . . we conclude that the Petitioner’s claim is without arguable
decisions to Florida’s intermediate appellate courts as a matter of right. See Fla. R. Crim. P.
3.850(k); Johnson v. Wainwright, 230 So. 2d 700, 701-02 (Fla. Dist. Ct. App. 1970). And
Florida’s intermediate appellate courts may summarily affirm the denial of relief. See, e.g.,
Shelton v. Sec’y Dep’t of Corr., 691 F.3d 1348, 1353 (11th Cir. 2012). Likewise, Oregon
appellate courts may issue summary decisions on the merits when reviewing lower court
decisions denying habeas relief. See Moore v. Palmateer, 26 P.3d 191 (Or. Ct. App. 2001).
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merit”); Pace v. Schofield, No. S08E049 (Ga. Jan. 12, 2009) (concluding that
superior court’s prejudice analysis was erroneous but denying application because
“there is no arguable merit to the Petitioner’s ineffective assistance of counsel
claims”).
Third, as I explain in greater detail in the next subsection, the United States
Supreme Court has on direct review treated the Georgia Supreme Court’s summary
denial of an application for a certificate of probable cause as adopting the superior
court’s reasoning.17 Despite knowing that, at least on direct review, the United
States Supreme Court will treat its summary denial as adopting the superior court’s
reasoning, the Georgia Supreme Court has continued to deny applications for
certificates of probable cause in summary orders. The continued practice shows
that the Georgia Supreme Court intends its silence to indicate consent. Put another
way, the Georgia Supreme Court’s practice supports the conclusion that it
17
Certainly, the same principles do not always apply on the Supreme Court’s direct
review of state habeas decisions under 28 U.S.C. § 1257(a) and federal habeas review of state
court decisions under AEDPA. But the majority presents no compelling reason why the meaning
of a Georgia Supreme Court decision should vary between the two contexts. Despite the
differences between direct and collateral review, the Supreme Court has applied principles from
direct review cases to federal habeas cases when an issue is “common to both direct and habeas
review.” Harris v. Reed, 489 U.S. 255, 263 (1989). Moreover, the majority itself recognizes
that principles from direct review cases can apply to federal habeas review under AEDPA.
See Maj. Op. at 9 (looking to Foster, a direct review case addressing whether the summary
denial of a certificate of probable cause is a decision on the merits subject to review on a writ of
certiorari, to understand whether the same decision also qualifies as an adjudication on the merits
under § 2254(d)).
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“generally . . . affirm[s] without further discussion when [it] agree[s], not when [it]
disagree[s], with the reasons given below.” Ylst, 501 U.S. at 804.
I agree with the majority that under AEDPA we must give state court
decisions “the benefit of the doubt.” Maj. Op. at 24 (quoting Renico v. Lett,
559 U.S 766, 773 (2010)). But I do not believe that this principle is in any way
inconsistent with the presumption that the Georgia Supreme Court agrees with the
superior court’s reasoning when it issues a summary denial of a certificate of
probable cause.
b. Looking Through Imposes No Opinion-Writing Standard.
The majority attacks the look-through presumption as inconsistent with
federalism because it “impose[s] opinion-writing standards on state appellate
courts.” Id. at 22. It certainly is true that the Supreme Court has expressed
concern about federal habeas courts using AEDPA to impose opinion-writing
standards on state courts. See Johnson v. Williams, 133 S. Ct. 1088, 1095 (2013).
But I disagree that looking through would pressure the Georgia Supreme Court to
“provide a statement of reasons” when it disagrees with the superior court’s
reasons for denying relief to negate a look-through presumption. Maj. Op. at 22.
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 reasons for rejecting the
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petitioner’s claim. 18 A federal habeas court would not look through that decision
because the presumption that the Georgia Supreme Court adopted the superior
court’s reasoning would be overcome, see Ylst, 501 U.S. at 804, and the federal
court would then review the Georgia Supreme Court’s decision under the
unexplained-decision approach.
But even if the Georgia Supreme Court chooses to explain why it denied the
petitioner’s application, I cannot agree that looking through creates an undue
opinion-writing burden because on direct review under 28 U.S.C. § 1257(a) the
United States Supreme Court already presumes that the Georgia Supreme Court’s
summary decisions adopt the reasoning in the lower court’s decision. As a result,
the Georgia Supreme Court presently has an incentive to state when it disagrees
with the superior court’s rationale regardless of whether federal habeas courts look
through.19 See Foster, 136 S. Ct. 1737; Sears v. Upton, 561 U.S. 945 (2010).
In Sears, on direct review under § 1257(a), the United States Supreme Court
looked through the Georgia Supreme Court’s summary decision denying an
18
The majority contends that because the Georgia Supreme Court would have to issue
this one-sentence order to overcome the look-through presumption, looking through would
impose an opinion-writing standard. I suppose that is literally correct, but any burden would be
minimal, limited to a form sentence that could be used with little more trouble than the sentence
that the Georgia Supreme Court most frequently uses, “it is ordered that [the application] be
hereby denied.”
19
This statutory provision provides that “[f]inal judgments . . . rendered by the highest
court of a State in which a decision could be had [] may be reviewed by the Supreme Court.”
28 U.S.C. § 1257(a).
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application for a certificate of probable cause, presuming that it denied the
application for the reasons set forth in the superior court’s decision. See, e.g.,
Sears, 561 U.S. at 953-54 (“There are two errors in the state court’s analysis of
Sears’ Sixth Amendment claim.”). Because the superior court—and thus,
implicitly the Georgia Supreme Court—improperly applied the prejudice prong in
its analysis of Sears’s ineffective assistance of counsel claim, the United States
Supreme Court vacated and remanded for the state court to apply the proper
standard. Id. at 946.20
And again in Foster, the Supreme Court on direct review looked through the
Georgia Supreme Court’s summary denial of a certificate of probable cause to the
superior court’s reasons for denying the petitioner’s claim. A threshold issue in
Foster was whether the Georgia Supreme Court’s denial of a certificate of
probable cause rested on federal or state law grounds. Foster, 136 S. Ct. at 1746
n.3. Even though it was reviewing the Georgia Supreme Court’s decision, the
United States Supreme Court referred to the superior court as “the state habeas
20
Although the Supreme Court has stated that it “rarely” reviews under § 1257(a) state
court decisions denying collateral relief, Lawrence v. Florida, 549 U.S. 327, 335 (2007), as at
least one Supreme Court justice has observed, recently the Supreme Court has reviewed such
decisions under § 1257(a) more frequently. See Foster, 136 S. Ct. at 1760-61 (Alito, J.,
concurring) (discussing trend of Supreme Court granting certiorari under § 1257(a) to review
state court decisions denying postconviction relief). Indeed, just last term in at least four cases
the Supreme Court granted review under § 1257(a) and reversed (or vacated) the state court
decision denying collateral relief. See Williams v. Pennsylvania, 136 S. Ct. 1899 (2016); Foster,
136 S. Ct. at 1755; Wearry v. Cain, 136 S. Ct. 1002, 1008 (2016); Montgomery v. Louisiana,
136 S. Ct. 718 (2016).
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court” and looked through to the superior court’s analysis. Id. at 1745-46. The
dissent in Foster criticized the majority for “attributing . . . [the] Superior Court’s
reasoning to the Supreme Court of Georgia,” warning that the majority had
“impose[d] an opinion-writing requirement on the States’ highest courts” by
forcing them to write “reasoned opinions” to avoid reversal on direct review. Id. at
1764-65 (Thomas, J., dissenting). Nevertheless, the majority in Foster looked
through, implicitly rejecting the dissent’s argument that the Court was imposing a
forbidden opinion-writing burden.
Since Sears, then, the Georgia Supreme Court has been on notice that if it
summarily denies an application for a certificate of probable cause, the United
States Supreme Court—at least on direct review under § 1257(a)—will treat its
summary decision as implicitly adopting the superior court’s reasoning and will
vacate its judgment if the superior court’s reasoning is flawed. Accordingly, I fail
to see how looking through under § 2254(d) would impose an improper opinion-
writing standard.
c. Looking Through Respects Differences in How States Have
Structured Their Habeas Systems.
The majority opinion requires federal habeas courts to apply the
unexplained-decision approach to review all summary state court decisions,
regardless of whether the state habeas system requires a reasoned decision from a
lower court. But the majority opinion’s approach violates the principles of comity
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and federalism that underlie AEDPA because it fails to respect differences in how
the states have chosen to structure their systems. See Younger v. Harris, 401 U.S.
37, 44 (1971) (recognizing that comity requires “a proper respect for state
functions” and “a continuance of the belief that the National Government will fare
best if the States and their institutions are left free to perform their separate
functions in their separate ways”). Proper respect requires federal habeas courts to
treat summary state appellate decisions that are rendered after a lower court issued
a reasoned decision differently from summary state appellate court decisions when
there is no reasoned decision from a lower court.
To illustrate why such summary decisions should not be treated identically, I
compare the California and Georgia state collateral review systems. California,
like Georgia, has structured its collateral review procedures to permit its state
supreme court to issue a summary decision rejecting a petitioner’s claims on the
merits, but its system for reviewing habeas claims otherwise bears little
resemblance to Georgia’s. California law allows a petitioner to seek relief in the
California Supreme Court in the first instance without requiring the California
Supreme Court to issue a reasoned decision. See Richter, 562 U.S. at 96. Without
a previous reasoned decision from any California court, it is impossible for a
federal habeas court to attribute any reasons to the California Supreme Court’s
summary decision.
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But, as I described above, collateral review in Georgia is markedly different.
Georgia guarantees petitioners at least one reasoned decision addressing their
claims. Thus, there is good reason to infer that the Georgia Supreme Court intends
its summary decision to adopt the lower court’s reasoning. Looking through
allows federal habeas courts to give meaning and effect to these differences in how
Georgia and Florida have chosen to structure their state habeas systems.
At bottom, the majority takes the position that federal habeas courts must
review all summary state court decisions in one uniform way. Although the
majority exalts the importance of uniformity, the majority also would have federal
habeas courts draw simultaneous, inconsistent conclusions about what a single
state appellate court’s summary decision means. Petitioners frequently raise more
than one claim in a state habeas petition, and state habeas trial courts may issue a
single order addressing all of the claims. As in this case, the state habeas trial
court may conclude that some of the petitioner’s claims are procedurally defaulted
and others fail on the merits. Or the state court may decide that a claim is
procedurally defaulted and, in the alternative, fails on the merits. When a state
appellate court issues a summary decision rejecting the petitioner’s appeal, the
majority would have the federal habeas court draw inconsistent conclusions about
what the state appellate court’s silence means. With respect to the procedurally
defaulted claims, the majority opinion would have a federal court treat the state
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appellate court’s silence as indicating agreement with the trial court’s decision to
deny the claim on state law procedural grounds. See Ylst, 501 U.S. at 804. At the
same time, with respect to the claims the state trial court addressed on the merits,
the majority opinion would have the federal court reject the conclusion that the
state appellate court through its silence adopted the lower court’s reasoning.
I am concerned that by embracing a look-through presumption for purposes
of identifying whether the state appellate court applied a procedural default but
rejecting it for purposes of identifying the grounds on which the state appellate
court rejected the petitioner’s claims, the majority opinion fails “to afford state
courts due respect” and offends principles of federalism. Woods v. Donald,
135 S. Ct. 1372, 1376 (2015). Indeed, the majority offers no credible explanation
why a federal habeas court can draw simultaneous inconsistent conclusions about
the meaning of a state appellate court’s summary decision. In the absence of any
explanation, it could appear that federal habeas courts are reading summary state
court decisions so as to impose the most onerous burden upon habeas petitioners—
that is, looking through to preserve procedural defaults (and thus bar federal habeas
courts from reviewing the merits of the petitioner’s claims) but refusing to look
through so that habeas petitioners must meet the more demanding inquiry under
the unexplained-decision approach when the summary decision was on the merits.
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d. Deferring to How Federal Appellate Courts Understand
Their Summary Decisions Violates Federalism Principles.
The majority contends that federal habeas courts should not adopt a look-
through presumption because when federal appellate courts summarily affirm
decisions from lower courts, they do not necessarily adopt the lower court’s
reasoning. The majority assumes that a state appellate court’s summary decision
carries the same meaning on federal habeas review that federal appellate courts
assign to their own summary decisions. This position is unprincipled and
inconsistent with federalism.
It is true that the United States Supreme Court and federal appellate courts
have said that their summary affirmances do not adopt the reasoning of the lower
court. The Supreme Court has explained, for example, that only what “was
essential to sustain” the lower court’s judgment may be read into its summary
decisions. Anderson v. Celebrezze, 460 U.S. 780, 784 n.5 (1983); see Pac. Gas &
Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 212
n.24 (1983). This is because the Supreme Court, like all federal appellate courts,
may affirm a lower court decision for any reason. As such, the meaning assigned
to a federal appellate court’s summary decision is limited to “the precise issues
presented and necessarily decided” in the summary decision. Anderson, 460 U.S.
at 784 n.5 (internal quotation marks omitted).
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Because federal review of state habeas decisions is unique, however, it
strikes me as inappropriate that the federal courts’ practice in another context
should dictate what a state appellate court’s summary decision means in that state’s
system. Indeed, the majority opinion cites no authority to support its assumption
that federal practice should control. The majority’s assumption that federal
appellate practice should control what we understand a state appellate court’s
summary decision to mean is flawed for at least two reasons: (1) it is inconsistent
with Ylst, in which the Supreme Court did not look to federal practice to
understand the meaning of a state appellate court’s summary affirmance and (2) at
least with respect to Georgia, it offends federalism and comity given the evidence
that the Georgia Supreme Court implicitly adopts a superior court’s reasoning
when it summary denies an application for a certificate of probable cause.
First, in Ylst, despite suggesting that a state appellate court’s summary orders
“are not meant to convey anything as to the reason for the decision,” the Supreme
Court treated a state appellate court’s summary decision as adopting the grounds in
the last reasoned state court decision. Ylst, 501 U.S. at 803-04 (emphasis in
original). The Supreme Court thus ascribed far greater meaning to a state court’s
summary affirmance than federal courts give their own summary affirmances.
Significantly, though, the Supreme Court found it unnecessary to mention that it
was treating a summary state appellate court decision differently from the way
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federal appellate courts treat their own summary decisions. To me this
demonstrates that we are not constrained by how federal courts treat their own
summary decisions when interpreting what a state appellate court’s summary
decision means.21
Second, as I explained above, decisions from the Georgia Supreme Court
demonstrate that it issues summary denials when it agrees, not disagrees, with the
superior court’s reasons for denying the petitioner’s claims. The majority’s
reliance on how federal courts understand their summary affirmances and
corresponding refusal to consider what Georgia’s collateral review system and the
Georgia Supreme Court’s practices tell us about the meaning of its summary
decisions fail to afford due respect to principles of comity and federalism. See
Thompson v. Bell, 580 F.3d 423, 442 (6th Cir. 2009) (recognizing it would do a
disservice to comity to ignore the highest court of a state’s views on its laws).22 I
21
The majority tries to sidestep this issue by contending that under Ylst a summary
affirmance means only that the state appellate court’s decision rested “on the same general
ground—that is, a procedural ground or on the merits—as the judgment under review.” Maj. Op.
at 17. The problem is that Ylst went further than treating a summary affirmance as simply
indicating an agreement with the general ground reached by the lower court. The Supreme Court
explained that a summary affirmance indicates agreement with the lower court’s reasons:
“silence implies consent . . . and courts generally behave accordingly, affirming without further
discussion when they agree . . . with the reasons given below.” Ylst, 501 U.S. at 804; see also
Hinojosa, 136 S. Ct. at 1606 (holding Ylst presumption was overcome when there was strong
evidence that state appellate court did not agree with specific reason given by lower court).
22
The majority points out that Justice Ginsburg concurred in the denial of certiorari in
Hittson because she agreed with the result reached by our Court but not the reasoning,
concluding that the Georgia Supreme Court likewise may deny an application for a certificate of
probable cause in a summary order even though it disagrees with the lower court’s reasoning.
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find it is curious that the majority criticizes the look-through presumption as
contradicting federalism principles when its position rests on the unsupported
assumption that summary decisions from state appellate courts must carry the same
meaning that federal appellate courts assign to their own summary decisions.23
III. CONCLUSION
I fear that the majority opinion’s application of the unexplained-decision
approach to review a summary decision of the Georgia Supreme Court will deprive
petitioners of federal habeas relief, eroding the guarantees of the Great Writ. I
Implicit in this argument is the idea that federal habeas courts should look to how the United
States Supreme Court applies its discretionary standard for reviewing certiorari petitions, see
Supreme Ct. R. 10 (“Review on a writ of certiorari is not a matter of right, but of judicial
discretion.”), to understand what the Georgia Supreme Court’s summary denial of a certificate of
probable cause means, even though the Georgia Supreme Court’s decision is on the merits. I fail
to see why the fact that the United States Supreme Court may in its discretion deny a certiorari
petition for any reason indicates that the Georgia Supreme Court summarily denies applications
for certificates of probable cause for reasons other than those given by the court below,
especially in light of the Georgia Supreme Court’s practice of issuing reasoned decisions when it
denies relief for a reason other than the one stated by the superior court.
23
The majority also suggests that a federal habeas court that looks through violates
principles of federalism because it improperly “review[s] the entire process by which a
prisoner’s federal claim was adjudicated” instead of determining whether the last state-court
decision is entitled to deference. Maj. Op. at 26. This suggestion relies on the assertion that
looking through requires a federal habeas court to review the entire state court proceedings
because the federal court would have to consider the lower state court decision and briefing
before the state appellate court to determine whether the look-through presumption is overcome.
But I see no problem because a federal habeas court would look to briefing before the state
appellate court only as part of the threshold inquiry to identify the content of the state court
decision. The Supreme Court has recognized that a federal habeas court reviewing a state court
decision has a “duty . . . to determine the scope of the relevant state court judgment.” Coleman
v. Thompson, 501 U.S. 722, 739 (1991). Importantly, the federal habeas court would not use the
state court briefing to determine whether the state appellate court’s summary decision, which
implicitly adopted the arguments or theories set forth in the lower court’s reasoned decision, was
entitled to deference.
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cannot agree that to pierce AEDPA deference a habeas petitioner must show that
the Georgia Supreme Court’s denial of an application for a certificate of probable
cause was unreasonable. I believe that federal habeas courts should presume that
the state appellate court’s summary decision under review adopted the lower
court’s reasons for rejecting the petitioner’s claims. When the presumption has not
been overcome by strong evidence, a federal habeas court should review whether
the arguments or theories in the superior court’s decision are entitled to deference
under the reasoned-decision approach.
The majority’s decision today requires federal habeas courts under § 2254(d)
to defer to a summary decision of the Georgia Supreme Court so long as a federal
court can conjure up any ground upon which relief reasonably could have been
denied, even when the superior court’s reasoning was contrary to clearly
established law. To reach this result, the majority ignores United States Supreme
Court cases that direct us to presume that the Georgia Supreme Court silently
adopted the superior court’s reasoning. And the majority ignores the evidence that
the Georgia Supreme Court intends and understands its summary denials to mean
that it agrees with the superior court’s reasoning. Instead, the majority relies on
the unsupported assumption that federal cases addressing the meaning federal
appellate courts assign their summary decisions dictate what the Georgia Supreme
Court’s summary decisions mean. Rather than working the careful balance
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between the state and federal system that AEDPA and our Constitution require, the
majority opinion does the very opposite. I therefore dissent.
92