CHAPTER THIRTEEN DECIDING THE MERITS OF THE CLAIM

CHAPTER THIRTEEN DECIDING THE MERITS OF THE CLAIM This chapter discusses the various components of the AEDPA deference statute, including... The meaning of the term merits adjudication, The clearly established law bar to relief, The contrary to restriction on deferential review, and The deferential unreasonable application of standard. For a comprehensive discussion of the standards of review in federal habeas proceedings, see Means, Postconviction Remedies, Chapter 29 (West 2015 ed.). Although the Supreme Court over time has fashioned a variety of procedural rules limiting the ability of prisoners to obtain postconviction review, it has consistently exercised plenary review over state court rulings on pure questions of law and mixed questions of law and fact. But in 1996, application of this de novo review standard came to an abrupt end. In that year, Congress enacted the Antiterrorism and Effective Death Penalty Act (AEDPA). In one of the most radical

changes to federal-habeas jurisprudence ever, this enactment dramatically altered the standard for federal court review of state court merits decisions. Where previously these rulings were given no deference, AEDPA both imposed a bar on claims for relief dependent on federal rights that the Supreme Court had not itself clearly established, and it established a highly deferential standard of review of state court merits adjudications. These new provisions have had a significant and adverse affect on the ability of state prisoners to obtain federal habeas relief. A. DEVELOPMENT OF THE LAW 1 Historically, state prisoners seeking a federal writ of habeas corpus were limited only to challenging the jurisdiction of the state court that rendered the judgment. In the late 1800s, the types of cases that the Supreme Court deemed jurisdictional grew. And beginning in the early 1900s, state prisoners were allowed to pursue their claims in federal court so long as no state court had provided a full and fair opportunity to litigate the prisoner s claims. But absent one of these circumstances, a state court criminal judgment was entitled to absolute respect, 2 and a federal habeas court could not review it even for reasonableness. 3 1 The precise development of habeas corpus jurisprudence is the subject of dispute. See Wright v. West, 505 U.S. 277, 280, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (opn. of Thomas, J.); id. at 287, 112 S.Ct. 2482 (O Connor, concurring in judgment). To read more about these differing views, see Means, Postconviction Remedies, 4:4 (West 2015 ed.). 2 Kuhlmann v. Wilson, 477 U.S. 436, 446, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986) (opn. of Powell, J.). 3 West, 505 U.S. at 286, 112 S.Ct. 2482.

In 1953, the Supreme Court in Brown v. Allen 4 discarded this principle of absolute deference, holding that a state court criminal judgment of conviction was not res judicata on federal habeas review with respect to federal constitutional claims, regardless of whether the prisoner had been afforded a full and fair hearing in state court. The appropriate question, the Court said, was whether the state court adjudication resulted in a satisfactory conclusion. 5 The Court did not elaborate on the parameters of what constituted a satisfactory conclusion or, in particular, whether the state court judgment was entitled to deference. And in the cases that followed over the next three decades, the Court did not explicitly address whether federal habeas review of a state court judgment should be de novo or deferential. It was not until 1985 that the Court in Miller v. Fenton 6 made explicit that mixed constitutional questions those involving mixed questions of law and fact were subject to plenary federal review on habeas corpus. Beginning in the late 1980s, it appeared, to some at least, that the Court was beginning to question the use of the de novo review standard on pure questions of law in federal habeas proceedings. 7 The issue came to the forefront in the Court s 1992 decision in Wright v. West. 8 Justice Thomas, in an opinion joined by Chief Justice Rehnquist and Justice Scalia, argued that the Court had never actually held that de novo review of federal habeas claims was appropriate and intimated that a deference rule would be appropriate for all issues in habeas corpus 4 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953). 5 Id. at 463, 73 S.Ct. 397. 6 474 U.S. 104, 112, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). 7 West, 505 U.S. at 291, 112 S.Ct. 2482. 8 Id. at 286, 112 S.Ct. 2482.

cases. But Justice O Connor in a separate opinion, joined by Justices Blackmun and Stevens, wrote that the Court had not changed the standard of review and that federal courts must review a state court s legal conclusions de novo. 9 In his concurring opinion, Justice Kennedy supported Justice O Connor s view on the standard of review. 10 Justice White did not address the issue in his concurring opinion, 11 while Justice Souter s concurring opinion arguably could be read as supporting Justice Thomas s view. 12 But in the end, the Court declined to revisit its prior holding in Miller v. Fenton that mixed constitutional questions were subject to plenary federal review on habeas corpus review. 13 Ultimately, Congress s enactment of AEDPA in 1996 eliminated the need for the Court to decide the extent to which state court legal decisions should be reviewed deferentially. Under this new set of laws, federal courts collaterally reviewing state proceedings are required to give considerable deference to state-court decisions. 14 This deferential review provision the subject of this chapter. B. THE STATUTE The deferential review provision of AEDPA is found in 2254 of Title 28. As amended by AEDPA, it states: (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be 9 Id. at 303-04 (O Connor, J., concurring). 10 Id. at 307 (Kennedy, J., concurring). 11 Id. at 297 (White, J., concurring). 12 Id. at 313 (Souter, J., concurring). 13 Id. at 294, 112 S.Ct. 2482. 14 28 U.S.C. 2254(d)(1).

granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. 15 Each of the components of the statute is discussed briefly in turn. What about federal prisoners? Although many of the provisions of AEDPA apply to both state and federal prisoners a one-year statute of limitations, limits on successive 2255 motions, and a heightened showing to appeal the deferential review provisions of 2254(d), the subject of this chapter, do not apply to federal prisoners. C. MERITS ADJUDICATIONS Typically, the first step in analyzing a state prisoner s claim in a federal habeas proceeding is identifying the appropriate standard of review. 16 If the conditions of 2254(d) are met, a federal court is required to review 15 28 U.S.C. 2254 (emphasis added). 16 Although this is the usual course, there is nothing that prevents a federal court from denying (but not granting) relief on the claim applying a de novo standard of review. See Lockyer v. Andrade, 538 U.S. 63, 71, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003).

the state court s decision deferentially. Otherwise, the claim is subject to plenary (non-deferential) federal review. The application of 2254(d)(1) s deferential review provision are dependent on a state court having adjudicated the prisoner s claim on its merits. 17 In general, a state court is deemed to have adjudicated a claim on the merits when it decides the prisoner s right to relief on the basis of the substance of the constitutional argument advanced, as opposed to some procedural or other rule precluding state court merits review. For instance, there is no merits adjudication if the state court overlooked or disregarded the prisoner s claim. In some cases, it may not be clear from the record whether the state court decided the prisoner s federal claim on the merits, if at all. For example, not infrequently state courts deny relief on collateral review without providing any explanation or citation to authority establishing the basis for the ruling. Early on, lower courts generally agreed that these types of unexplained rulings, or summary denials, qualified as merits adjudications entitled to deference under 2254(d). The Supreme Court ultimately endorsed this view in Harrington v. Richter. 18 In its 2011 decision, the Court held that when a federal claim is presented to a state court and the state court denies relief, it is presumed that the state court adjudicated the claim on the merits, at least in the absence of any indication or state-law procedural 17 28 U.S.C. 2254(d)(1) (deferential review applies to any claim that was adjudicated on the merits in State court proceedings ). 18 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).

principles to the contrary. The Court based its decision on the fact that there was no text in [ 2254(d)] requiring a statement of reasons, but the statute instead referred only to a decision, which resulted from an adjudication. 19 Summary rulings, the Court decided, met this requirement. But its ruling was qualified. [W]hen there is reason to think some other explanation for the state court s decision is more likely, the Court admonished, the presumption of a merits adjudication may be overcome. 20 Richter had not made this showing. Although he mention[ed] the theoretical possibility that the members of the California Supreme Court may not have agreed on the reasons for denying his petition, the Court was unpersuaded, concluding that the argument was based on pure speculation. 21 Confusion may arise where the prisoner alleged in a state-court petition that a single error violated both state and federal law and the state court only explicitly addressed the state-court ground in its ruling. In this scenario, a question arises over whether the federal claim was adjudicated on the merits, or otherwise, by the state court. This was the subject of the Supreme Court s decision in Johnson v. Williams. 22 In that case, Williams argued on direct appeal that the trial court had improperly discharged a juror in violation of both the Sixth Amendment and California law. The state court of appeal affirmed the conviction and discussed at length the propriety of the trial judge s decision to dismiss the juror. Although the state court of appeal quoted the 19 Id. at 98, 131 S.Ct. 770. 20 Id. at 99-100, 131 S.Ct. 770 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991)). 21 Id. at 100, 131 S.Ct. 770. 22 U.S., 133 S.Ct. 1088, 185 L.Ed.2d 105 (2013).

definition of impartiality from a United States Supreme Court case, it did not expressly acknowledge that it was deciding a Sixth Amendment claims. The state supreme court granted Williams s petition for review and remanded her case for further consideration in light of an intervening state supreme court decision, People v. Cleveland. 23 The state court of appeal reaffirmed its decision, but again the court did not expressly acknowledge the federal claim. The Ninth Circuit on federal habeas review stated that it was obvious the state court of appeal had overlooked or disregarded the Sixth Amendment claim and proceeded to review the claim under a de novo standard. The Supreme Court reversed, holding that when a state court opinion addresses some, but not all, of a defendant s claims, there is a rebuttable presumption that the state court adjudicated the unmentioned claims on the merits. The Court reasoned that there was no reason why the Richter presumption should not also apply when a state court opinion addresses some but not all of a defendant s claims. 24 The Court explained that because there is not a uniform practice among state court of appeals of separately addressing every single claim mentioned in a defendant s papers, federal courts cannot assume that any unaddressed federal claim was simply overlooked. Indeed, the Court noted, there are several situations in which state courts frequently take a different course namely, they may view a line of state precedent as fully incorporating a related federal constitutional right, they may not regard a fleeting reference to a provision of the federal Constitution or 23 25 Cal.4th 466, 106 Cal.Rptr. 2d 313, 21 P.3d 1225 (2001). 24 Williams, U.S. at, 133 S.Ct. at 1091.

federal precedent as sufficient to raise a federal claim, or they may simply regard a claim as too insubstantial to merit discussion. 25 Thus, the Court ruled, because it is by no means uncommon for a state court to fail to address separately a federal claim that the court has not simply overlooked, it saw no sound reason not to apply the Richter presumption. 26 But the Court added that, although this presumption is a strong one, it may be rebutted in unusual circumstances. 27 This may be done, according to the Court, either by the habeas petitioner (for the purpose of showing that the claim should be considered by the federal court de novo) or by the State (for the purpose of showing that the federal claim should be regarded as procedurally defaulted). 28 These circumstances include where the state standard is less protective than the federal standard; where the state standard is quite different from the federal standard, and the defendant s papers made no effort to develop the basis for the federal claim ; and where a provision of the Federal Constitution or a federal precedent was simply mentioned in passing in a footnote or was buried in a string cite.... 29 Similarly, where the defendant fails to 25 Id. at, 133 S.Ct. at 1094-95. 26 Id. at, 133 S.Ct. at 1096. The Court rejected as going too far the State s argument that if a defendant alleged in state court that the same act violated both a provision of the federal Constitution and a related provision of state law, and the state court in denying relief made no reference to federal law, it should be presumed that the state court adjudicated the federal claim on the merits. Id. 27 Id. 28 Id. 29 Id.

exhaust available state court remedies, the Richter presumption is fully rebutted. 30 Turning to the facts at hand, the Court came to the inescapable conclusion that the Ninth Circuit erred in ruling that the state court of appeal had overlooked Williams s Sixth Amendment claim. 31 First, and most significant, was the state court of appeal s discussion of the Cleveland decision a state supreme court case that discussed three federal appellate court cases addressing the Sixth Amendment implications of discharging holdout jurors. Although Cleveland did not expressly say that it was deciding a federal constitutional question, its discussion of the federal circuit court cases demonstrated that it understood it was deciding a question with federal constitutional dimensions. The Court added that it was difficult to imagine the state supreme court had announced an interpretation of state law that it believed to be less protective than the Sixth Amendment, as any such interpretation would provide no guidance to state trial judges bound to follow both state and federal law. 32 Second, although not perfectly coextensive, the similarity of the federal- and state-law claims made it unlikely that the state court of appeal had decided one while overlooking the other. 33 Third, that the state court of appeal cited a United States Supreme Court decision indicated that it was well aware that the questioning and dismissal of the juror implicated both state and federal law. 34 And finally, the Court was persuaded by Williams s litigation strategy 30 Id. at, 133 S.Ct. at 1096 n.3. 31 Id. at, 133 S.Ct. at 1097-98. 32 Id. 33 Id. 34 Id. at, 133 S.Ct. at 1099.

treating her state and federal claims as interchangeable, and failing to object in any state court proceeding that her Sixth Amendment claim had not been adjudicated. 35 The Supreme Court has not confronted the situation where the state court expressly references all but one of the prisoner s claims (like Williams), and the unmentioned claim is unrelated to the other claims (unlike Williams). Although the Court in Williams stated that there is no reason why the Richter presumption should not also apply when a state court opinion addresses some but not all of a defendant s claims, Williams, 133 S.Ct. at 1094, it did not explain what type of circumstances would rebut the presumption. Lower courts have been left to grapple with this uncertainty. Means, Postconviction Remedies, 26:9 (West 2015 ed.) (suggesting possible approaches and discussing lower court decisions on this issue). D. CLEARLY ESTABLISHED PRECEDENT If it is determined that the state court adjudicated the prisoner s federal claim on the merits within the meaning of 2254(d)(1), the inquiry turns to whether the state court s decision was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. 36 This inquiry requires the consideration of three separate components: contrary to, unreasonable application, and clearly established. 35 Id. 36 28 U.S.C. 2254(d)(1).

The clearly established component, although last in sequence, is the first to consider. It is a threshold issue that must be addressed before a federal court can analyze the contrary to and unreasonable application components, discussed in the subchapters that follow. 37 Only after the federal court answers affirmatively the preliminary question regarding the existence of clearly established federal law can it then ask whether the state court decision is either contrary to or an unreasonable application of such law. In addition to being an initiatory step in an 2254(d)(1) analysis, the clearly established law determination is often a dispositive one. Without clearly established federal law, a federal habeas court need not assess whether a state court s merits decision was contrary to or involved an unreasonable application of federal law. The reason is that absent clearly established law, a federal court evaluating a habeas claim cannot possibly conclude that a state court s merits decision was contrary to, or unreasonably application of, Supreme Court precedent. 38 The term clearly established is not defined in 2254(d). It was not until four years after AEDPA s enactment that the Supreme Court defined 2254(d)(1) s 37 Andrade, 538 U.S. at 71, 123 S.Ct. 1166 ( As a threshold matter here, we first decide what constitutes clearly established Federal law, as determined by the Supreme Court of the United States. ). 38 Wright v. Van Patten, 552 U.S. 120, 126, 128 S.Ct. 743, 169 L.Ed.2d 583 (2008) ( Because our cases give no clear answer to the question presented, let alone one in Van Patten s favor, it cannot be said that the state court unreasonabl[y] appli[ed] clearly established Federal law. Musladin, 549 U.S. at 77, 127 S.Ct. 649, 654 (quoting 28 U.S.C. 2254(d)(1)). Under the explicit terms of 2254(d)(1), therefore, relief is unauthorized. ).

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