Supreme Court of the United States

No. 15- In The Supreme Court of the United States MARC CLEMENTS, v. OSCAR C. THOMAS, Petitioner, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT PETITION FOR A WRIT OF CERTIORARI BRAD D. SCHIMEL Attorney General of Wisconsin Wisconsin Department of Justice Post Office Box 7857 Madison, Wisconsin 53707-7857 (608) 266-2340 kasseljj@doj.state.wi.us MISHA TSEYTLIN Solicitor General MARGUERITE M. MOELLER Assistant Attorney General JEFFREY J. KASSEL Assistant Attorney General *Counsel of Record Attorneys for Petitioner

i QUESTIONS PRESENTED 1. If a state appellate court rejects a criminal defendant s federal claim by focusing exclusively on a single on the merits deficiency, do 28 U.S.C. 2254(d) s deferential review standards apply when analyzing other merits reasons the claim could fail, including where a lower state court previously rejected the claim based upon those other reasons? 2. Does a state court s decision that the criminal defendant s federal claim failed on the merits lose the benefit of 28 U.S.C. 2254(d) s deferential review because the state court used imprecise language in articulating the legal standard applicable to the federal claim?

ii TABLE OF CONTENTS Page QUESTIONS PRESENTED... i OPINIONS BELOW... 3 JURISDICTION... 3 STATUTORY PROVISION INVOLVED... 3 STATEMENT OF THE CASE... 4 REASONS FOR GRANTING THE PETITION... 11 I. The Seventh Circuit Deepened A Circuit Split As To Whether A Lower State Court s On The Merits Denial Of A Federal Claim Is Entitled To AEDPA Deference When Affirmed By A Higher State Court On Alternative Merits Grounds.... 11 A. There Is An Acknowledged Division Of Authority On This Issue.... 11 B. The Seventh And Ninth Circuits Have Adopted The Wrong Approach To This Question.... 16 II. The Seventh Circuit s Refusal To Afford AEDPA Deference

iii Because Of The State Appellate Court s Imprecise Articulation Of The Strickland Prejudice Prong Flouts This Court s Decision In Visciotti.... 21 III. This Case Is An Ideal Vehicle For Deciding Both Important, Oft- Recurring Questions Presented.... 25 CONCLUSION... 29 APPENDIX A: Seventh Circuit Opinion and Decision in Thomas v. Clements, 789 F.3d 760 (7th Cir. 2015)... 1a-25a APPENDIX B: United States District Court for the Eastern District of Wisconsin Opinion and Order in Thomas v. Schwochert, No. 12-C-1024 (E.D. Wis. 2014)... 26a-54a APPENDIX C: Wisconsin Court of Appeals Decision in State v. Thomas, No. 2010AP1606-CR (Wis. Ct. App. Nov. 9, 2011)... 55a-64a APPENDIX D: Seventh Circuit Order Denying Petition for Rehearing En Banc in Thomas v. Clements, 797 F.3d 445 (7th Cir. 2015) (per curiam)... 65a-73a APPENDIX E: Excerpt of Transcript of Postconviction Motion Hearing, May 27, 2010... 74a-81a

iv TABLE OF AUTHORITIES CASES CITED Barker v. Fleming, 423 F.3d 1085 (9th Cir. 2005)... 14, 15, 26 Barton v. Warden, S. Ohio Corr. Facility, 786 F.3d 450 (6th Cir. 2015)... 15 Brady v. Maryland, 373 U.S. 83 (1963)... 14 Burt v. Titlow, 134 S. Ct. 10 (2013)... 16, 18 Charles v. Stephens, 736 F.3d 380 (5th Cir. 2013)... 23, 26 Collins v. Sec y of Pa. Dep t of Corrs., 742 F.3d 528 (3d Cir. 2014)...12, 14, 16, 26 Cullen v. Pinholster, 563 U.S. 170 (2011)... 25, 27, 28 Hammond v. Hall, 586 F.3d 1289 (11th Cir. 2009)...13, 16, 18, 26 Harrington v. Richter, 562 U.S. 86 (2011)... 10, passim

v Hinton v. Alabama, 134 S. Ct. 1081 (2014)... 27 Holland v. Jackson, 542 U.S. 649 (2004) (per curiam)... 21 Johnson v. Williams, 133 S. Ct. 1088 (2013)... 25 Kyles v. Whitley, 514 U.S. 419 (1995)... 14 Lindh v. Murphy, 521 U.S. 320 (1997)... 21 Loden v. McCarty, 778 F.3d 484 (5th Cir. 2014)...12, 13, 16, 26 Mann v. Ryan, 774 F.3d 1203 (9th Cir. 2014)...2, 23, 24, 26 Metrish v. Lancaster, 133 S. Ct. 1781 (2013)... 25 Owens v. Duncan, 781 F.3d 360 (7th Cir. 2015)... 25 Parker v. Sec y for Dep t of Corr., 331 F.3d 764 (11th Cir. 2003)... 23, 26

vi Porter v. McCollum, 558 U.S. 30 (2009)... 19 Rompilla v. Beard, 545 U.S. 374 (2005)... 19 State v. Erickson, 227 Wis. 2d 758, 596 N.W.2d 749 (1999)... 17 State v. Moats, 156 Wis. 2d 74, 457 N.W.2d 299 (1990)... 17, 22 State v. Reed, 2002 WI App 209, 256 Wis. 2d 1019, 650 N.W.2d 885... 22 State v. Sanchez, 201 Wis. 2d 219, 548 N.W.2d 69 (1996)... 17 State v. Thomas, 2012 WI 45, 340 Wis. 2d 542, 811 N.W.2d 818 (table)... 7 Strickland v. Washington, 466 U.S. 668 (1984)... 2, passim Wiggins v. Smith, 539 U.S. 510 (2003)...13, 17, 18, 19 Williams v. Taylor, 529 U.S. 420 (2000)... 25, 26

vii Woodford v. Visciotti, 537 U.S. 19 (2002) (per curiam)... 2, 21, 22, 23, 24 Woolley v. Rednour, 702 F.3d 411 (7th Cir. 2012)... 12, 14 Ylst v. Nunnemaker, 501 U.S. 797 (1991)... 8, 10, 14, 16, 18 STATUTES CITED 28 U.S.C. 1254(1)... 3 28 U.S.C. 2254... 3, 4 28 U.S.C. 2254(d)... 1, 12 28 U.S.C. 2254(d)(1)... 16 OTHER AUTHORITIES Petition for Writ of Certiorari in Cook v. Barton, 84 U.S.L.W. 3279 (U.S. Nov. 2, 2015) (No. 15-580)... 15 Sup. Ct. R. 10(a)... 11

PETITION FOR A WRIT OF CERTIORARI This case is yet another instance of the federal courts refusing to honor Congress s mandate in the Antiterrorism and Effective Death Penalty Act ( AEDPA ) that a claim that has been adjudicated on the merits in State court be afforded significant deference in federal habeas proceedings. 28 U.S.C. 2254(d). The Seventh Circuit violated AEDPA in two significant respects, and in doing so deepened a division of authority among the courts of appeals. As Judge Easterbrook observed below, this case involves a division of lower court authority that belongs on the Supreme Court s plate. App. 67a (Easterbrook, J., concurring in denial of rehearing en banc). The relevant facts here are straightforward. A state-court jury convicted Defendant for murdering his ex-wife. Defendant then sought a new trial based upon the argument that his attorney was ineffective under Strickland v. Washington, 466 U.S. 668 (1984), for failing to consult a forensic pathologist. The state trial court denied Defendant s motion, holding there was no deficient performance under the first Strickland prong. The state appellate court affirmed, but decided the issue based upon Strickland s prejudice prong, without addressing the deficiency prong. The Seventh Circuit granted habeas relief after refusing to afford AEDPA deference to the state courts adjudication of Defendant s claims under either Strickland prong, while explaining that the

2 decision to withhold AEDPA deference may well have been outcome determinative. The Seventh Circuit s decision on each of the prongs independently merits this Court s review. First, deepening an acknowledged division among the courts of appeals, the Seventh Circuit held that because the state appellate court had rejected Defendant s Strickland claim only for lack of prejudice, without discussing deficiency, the trial court s deficiency holding was not entitled to AEDPA deference. As Judge Easterbrook explained below, [w]hether the first in a sequence of state-court decisions should be ignored when a subsequent decision is rendered by a higher state court has divided the courts of appeals. App. 66a. Second, the Seventh Circuit held that because the state appellate court imprecisely articulated the Strickland prejudice prong, no AEDPA deference would be afforded as to that prong. Even though Woodford v. Visciotti, 537 U.S. 19 (2002) (per curiam), forecloses this approach, it continues to recur in certain lower courts. As Judge Kozinski recently observed when the Ninth Circuit made the same error, a federal court capitalizing on imprecise state-court wording violates AEDPA because federal courts are required to presume that the state [appellate] court knew the law it was applying. Mann v. Ryan, 774 F.3d 1203, 1225 (9th Cir. 2014) (Kozinski, J., concurring in part and dissenting in part), reh g en banc ordered, 797 F.3d 654 (2015).

3 OPINIONS BELOW The Seventh Circuit s decision denying the petition for rehearing en banc is reported at 797 F.3d 445. App. 65a-73a. The Seventh Circuit decision is reported at 789 F.3d 760. App. 1a-25a. The district court s decision is unreported. App. 26a-54a. The decision of the Wisconsin Court of Appeals is unreported. App. 55a-64a. The state circuit court s oral decision appears at App. 74a-81a. JURISDICTION The Seventh Circuit entered its decision on June 16, 2015. App. 1a. The order denying the timely petition for rehearing en banc was entered August 7, 2015. App. 65a. On October 21, 2015, Justice Kagan granted Petitioner s application for a sixty-day enlargement of time to file a petition for writ of certiorari. This Court has jurisdiction under 28 U.S.C. 1254(1). STATUTORY PROVISION INVOLVED Title 28 U.S.C. 2254, enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996, provides in relevant part: (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 granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim

4 (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; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. STATEMENT OF THE CASE 1. Defendant Oscar Thomas strangled his ex-wife to death in the early hours of December 27, 2006. At the end of his four-day trial, a jury convicted Defendant of first-degree intentional homicide, firstdegree sexual assault, and false imprisonment. He received a sentence of life imprisonment without the possibility of extended supervision for the homicide. App. 27a, 29a. At trial, the State presented overwhelming evidence that Defendant intentionally killed his exwife. In a written, voluntary confession given on the day of the murder, Defendant said that he had jumped on the victim s hip, started humping, and refused to stop despite the victim struggling, kicking the floor, yelling [at me] to stop, and telling me she loved me. App. 5a. Defendant admitted he kept squeezing until the victim threatened to bite him. Defendant explained: I do believe I was accidentally responsible for the death. App. 5a. The State also submitted testimony from a neighbor, who had heard screams of [s]top, stop, I

5 love you, someone choking, and someone kicking the floor in the apartment above her. App. 3a. Ten minutes of silence followed, after which furniture was being moved and something was dropped and dragged. App. 3a. The State also presented Dr. Mary Mainland, the county medical examiner, who testified that, based upon all available physical evidence, the victim died from strangulation. App. 6a. Dr. Mainland explained that the victim exhibited internal neck injuries, hemorrhaging in her eyes, and other injuries associated with strangulation, although she did not have external neck bruising. Id. Defense counsel s strategy at trial was to argue that Defendant lacked the intent to kill, and that the death was the accidental result of a rough sexual encounter. App. 16a. Consistent with this strategy, the defense attorney told the jury that there was nothing to suggest Defendant intended to kill his exwife and that Defendant s actions after the incident including checking on the victim s condition and cooperating with police were inconsistent with the intent to kill. App. 43a-44a. 2. Defendant filed a postconviction motion that included a claim of ineffective assistance of counsel. This claim was based on the testimony of Dr. Shaku Teas, a forensic pathologist. App. 60a. Dr. Teas explained that, in her judgment, certain injuries on the victim s body were not consistent with death by strangulation, but she admittedly could not rule out strangulation. App. 41a-42a. Indeed, in her written statement Dr. Teas conceded that it is my

6 opinion that [the victim] died as a result of pressure on the neck, and then observed that this was not inconsistent with Defendant s statements to the police. App. 46a. When asked why he did not hire a forensic pathologist to dispute the strangulation theory, defense counsel testified that in light of the State s evidence including Defendant s confession and the lack of any victim medical history suggesting an alternative cause of death he decided to focus his defense on arguing that the victim died accidentally during an episode of rough sex. App. 42a, 61a. The circuit court denied Defendant s ineffectiveassistance claim under the Strickland deficiency prong. Specifically, the circuit court explained that trial counsel did not perform deficiently when he decided to focus his trial strategy on negating intent to kill, largely because there was no reason for the attorney to question Dr. Mainland s findings that the victim died from strangulation. App. 75a-81a. 3. The Wisconsin Court of Appeals affirmed the circuit court s decision, but based upon the prejudice prong of the Strickland analysis. The court simply concluded, in a two-sentence discussion, that counsel s alleged deficiency did not prejudice Defendant: Thomas ineffective assistance of trial counsel claim also fails. Thomas did not demonstrate that his trial counsel s failure to present Teas testimony would have led to a different result at trial. See State v. Reed, 2002 WI App 209, 17, 256

7 Wis. 2d 1019, 650 N.W.2d 885; State v. Moats, 156 Wis. 2d 74, 101, 457 N.W.2d 299 (1990) (we need not consider whether trial counsel s performance was deficient if we can resolve the ineffectiveness issue on the ground of lack of prejudice). App. 64a. It is undisputed that the two cases the court cited Reed and Moats properly articulated the Strickland prejudice standard. The Wisconsin Court of Appeals did not mention or discuss Strickland s deficiency prong. The Wisconsin Supreme Court then denied appointed counsel s no merit discretionary petition for review. State v. Thomas, 2012 WI 45, 340 Wis. 2d 542, 811 N.W.2d 818 (table). 4. On federal habeas review, the Eastern District of Wisconsin ruled in the State s favor on both deficiency and prejudice. With regard to deficiency, the district court first explained that it would analyze the question under AEDPA deference, pursuant to the principles of federalism and comity. App. 39a (quotation omitted). The district court found that trial counsel was not deficient, explaining that the circuit court reasonably concluded that counsel had no reason to question Dr. Mainland s conclusion as to the cause of death. App. 41a. The district court added that, while the strategy of arguing the victim had died as an unintended result of rough sex created a steep hill to climb, it was Thomas s own statements [to the police] that put him and his counsel at the foot of that hill. App. 42a.

8 Turning to prejudice, the district court declined to apply AEDPA deference, solely because the Wisconsin Court of Appeals had omitted reasonable probability when articulating Strickland s prejudice standard. App. 45a n.6. Nevertheless, the district court ruled against Defendant on prejudice. The district court noted that even Dr. Teas herself could not rule out strangulation as the cause of death. App. 45a-46a. The court then surveyed the substantial evidence against Defendant presented at trial, including his inculpatory statement and the neighbor s testimony. App. 46a-47a. The court concluded that given the totality of the evidence, Thomas cannot demonstrate a reasonable probability that, but for his counsel s alleged errors, the result of his trial would have been different. App. 47a. 5. The Seventh Circuit reversed and ordered that habeas relief be granted to Defendant, after refusing to afford AEDPA deference to either Strickland prong. First, as to deficient performance, the court found that the state circuit court s decision did not deserve deference under this Court s decision in Ylst v. Nunnemaker, 501 U.S. 797 (1991). App. 10a. Then, in concluding that defense counsel performed deficiently, the Seventh Circuit asserted that it was undisputed that the defense attorney did not reach out to or even consider consulting a pathologist. App. 15a. At best, this statement was misleading because the defense attorney testified that he had considered retaining a forensic pathologist, but his review of the records did not

9 suggest that there was an issue regarding cause of death. See App. 61a. The Seventh Circuit observed that we might come out a different way on the deficient-performance question if it had analyzed the issue under AEDPA deference. App. 14a. As to Strickland prejudice, the Seventh Circuit held that AEDPA deference did not apply solely because the state appellate court omitted Strickland s reasonable probability language. App. 12a-13a. The Seventh Circuit described the State s case as not ironclad by any stretch of the imagination, and then briefly catalogued some weaknesses it observed in the State s evidence. App. 22a. It then hypothesized its own sequence of events, based upon an entirely implausible effort to reconcile Defendant s confession with Dr. Teas testimony. App. 22a-23a. As it did with respect to deficiency, the Seventh Circuit acknowledged that were the facts reviewed under the AEDPA deference, we might come out differently. App. 21a. 6. The Warden filed a petition for rehearing en banc, which the Seventh Circuit denied on August 7, 2015. App. 65a. Concurring in the denial of the petition, Judge Easterbrook declared that [w]hether the first in a sequence of state-court decisions should be ignored has divided the courts of appeals and thus belongs on the Supreme Court s plate. App. 66a-67a. Judge Easterbrook suggested two independently sufficient reasons the Seventh Circuit s decision was likely incorrect. First, the Seventh Circuit s approach of ignoring a lower state

10 court s decision rested upon a misinterpretation of this Court s decision in Ylst. App. 66a-67a. Second, the two components of an ineffective-assistance claim under Strickland, are [not] separate claims for the purpose of 2254(d). App. 68a. Accordingly, the Wisconsin Court of Appeals rejection of Defendant s Strickland claim should have been afforded AEDPA deference on both prongs, even if there had been no lower court decision on one prong. App. 68a-73a. In support of this second approach, Judge Easterbrook relied upon Harrington v. Richter, 562 U.S. 86 (2011), which held that AEDPA deference applies when a state court denies the defendant s federal claim without giving any reasoning. App. 69a. Doesn t this imply that, when a state court gives one sufficient reason and stops, the claim has been fully adjudicated? App. 69a.

11 REASONS FOR GRANTING THE PETITION I. The Seventh Circuit Deepened A Circuit Split As To Whether A Lower State Court s On The Merits Denial Of A Federal Claim Is Entitled To AEDPA Deference When Affirmed By A Higher State Court On Alternative Merits Grounds. A. There Is An Acknowledged Division Of Authority On This Issue. As Judge Easterbrook observed, [w]hether the first in a sequence of state-court decisions should be ignored [for AEDPA purposes] has divided the courts of appeals. App. 66a. Judge Easterbrook is correct. On one side of the split, the Third, Fifth and Eleventh Circuits afford AEDPA deference to a lower state-court decision rejecting a criminal defendant s federal claim on the merits, where a higher court decision affirmed that rejection based upon different merits reasoning. Id. On the other side, the Seventh and Ninth Circuits take the opposite view, holding that only the last reasoned state court decision is relevant for AEDPA purposes in such circumstances. Id. In addition, recently the Sixth Circuit strongly suggested that it intends to follow the approach adopted by the Seventh and Ninth Circuits. This Court should grant review to settle this important, oft-recurring division of authority. Sup. Ct. R. 10(a).

12 1. The Third, Fifth and Eleventh Circuits take a deferential approach to the circuit split that Judge Easterbrook described. For example, in Collins v. Sec y of Pa. Dep t of Corrs., 742 F.3d 528 (3d Cir.), cert. denied sub nom. Collins v. Wetzel, 135 S. Ct. 454 (2014), the lower court had rejected the prisoner s Strickland claim on both performance and prejudice grounds, and then the Pennsylvania Supreme Court rejected the claim on the ground that [trial counsel s] performance was not constitutionally deficient without ruling on prejudice. Id. at 545. In applying 2254(d) deference to the lower court s prejudice ruling, the Third Circuit explained that [t]he lack of an express ruling from the Pennsylvania Supreme Court on the question of prejudice does not negate the [trial] court s decision that Collins was not prejudiced. Id. at 546. The Third Circuit concluded that the prejudice issue was adjudicated on the merits in state court, even if only at the [trial] court level. Id. Recognizing that its view may seem at odds with the approach approved by the Seventh Circuit in Woolley v. Rednour, 702 F.3d 411 (7th Cir. 2012), the Third Circuit explained that it was the better course in view of this Court s repeated admonitions that AEDPA mandates broad deference to the decisions of the state courts. Collins, 742 F.3d at 546 n.12. Similarly, in Loden v. McCarty, 778 F.3d 484 (5th Cir. 2014), cert. denied sub nom. Loden v. Fisher, 136 S. Ct. 402 (2015), the Fifth Circuit afforded AEDPA deference to a state trial court s decision on

13 Strickland prejudice where the Mississippi Supreme Court had expressly rejected the ineffectiveassistance claim solely on Strickland s performance component. Id. at 495. The court reasoned that although the state trial court [did] not state the grounds on which it denied [the] ineffective assistance claim, under Richter, 562 U.S. at 98, federal habeas courts will consider it to have adjudicated both grounds. Loden, 778 F.3d at 495. In sum, the Fifth Circuit adopted the view that [w]here a lower state court ruled on an element that a higher state court did not, the lower state court s decision is entitled to AEDPA deference. Id. The Eleventh Circuit adopted the same approach in Hammond v. Hall, 586 F.3d 1289 (11th Cir. 2009). There, the lower state court had found that trial counsel did not perform deficiently, while the Georgia Supreme Court rejected the same Strickland claim based upon lack of prejudice. Id. at 1330. The defendant argued that a state appellate court s decision on one element of ineffective assistance automatically erases the trial court s decision on the other element. Id. at 1331. The Eleventh Circuit disagreed and held that AEDPA deference was owed on both Strickland prongs. Id. at 1332. To support its conclusion, the Eleventh Circuit relied upon AEDPA s text, this Court s reasoning in Wiggins v. Smith, 539 U.S. 510 (2003), and this Court s suggestion that courts should resolve Strickland claims only upon prejudice, where appropriate. Hammond, 586 F.3d at 1332.

14 2. On the other side of this circuit split sit the Seventh and the Ninth Circuits. As noted above, the Third Circuit understood the Seventh Circuit s decision in Woolley, 702 F.3d 411, as arguably adopting the nondeferential approach. Collins, 742 F.3d at 546 n.12. With its decision here, the Seventh Circuit has unequivocally established that it has rejected the approach of the Third, Fifth and Eleventh Circuits by deciding that it will not defer to a lower state-court decision denying relief, where a higher state appellate court affirms on a different aspect of the claim. See supra at 2. The Ninth Circuit has similarly adopted this nondeferential rule. In Barker v. Fleming, 423 F.3d 1085 (9th Cir. 2005), the state court of appeals had analyzed each piece of withheld evidence under Brady v. Maryland, 373 U.S. 83 (1963), as well as the cumulative effect of the withheld evidence. In contrast, the Washington Supreme Court analyzed each piece of withheld evidence, but never assessed the cumulative impact of withholding all of the evidence. Barker, 423 F.3d at 1094. Because the Washington Supreme Court by not addressing cumulative effect failed to complete the second half of the equation under Kyles v. Whitley, 514 U.S. 419, 436 (1995), the Ninth Circuit refused to apply AEDPA deference. Barker, 423 F.3d at 1094. Rejecting the State s urging to review the decisions of both appellate courts as a collective whole (id. at 1092), the Ninth Circuit cited this Court s decision in Ylst and held that even when one state court adhered to federal law, if the last court to review the

15 claim erred, the federal court should review the last decision in isolation and not in combination with decisions by other state courts. Id. at 1091-93. The Sixth Circuit recently indicated that it will likely side with the Seventh and Ninth Circuits. See Barton v. Warden, S. Ohio Corr. Facility, 786 F.3d 450, 464 (6th Cir. 2015), petition for cert. filed sub nom. Cook v. Barton, 84 U.S.L.W. 3279 (U.S. Nov. 2, 2015) (No. 15-580). Unlike the cases discussed above, Barton did not involve successive merits adjudications of the federal claim. Rather, in that case the trial court issued what was arguably a merits decision on the federal claim, while the state appellate court rejected the claim on procedural grounds. Although it did not believe that the trial court had decided the federal claim on the merits, the Sixth Circuit issued an alternative holding that even if the trial court s decision constituted a merits adjudication, it would have been stripped of any preclusive effect under the last-reasoned-decision rule. Barton, 786 F.3d at 464. Although Barton did not involve successive merits adjudications, 1 its reasoning including its citation to the Ninth Circuit s decision in Barker and this Court s decision 1 The second issue presented in Ohio s presently pending petition for writ of certiorari in Barton is: If a lower court in the state proceedings rejects a state prisoner s claim on the merits, do 2254(d) s standards nevertheless fall away whenever a higher court in the state proceedings rejects the claim on procedural grounds without addressing the claim substantively? Petition for Writ of Certiorari, Cook v. Barton, No. 15-580 (U.S.), at i.

16 in Ylst suggests it may well take the approach adopted by the Seventh and Ninth Circuits. B. The Seventh And Ninth Circuits Have Adopted The Wrong Approach To This Question. 1. The approach adopted by the Seventh and Ninth Circuits, which involves a single-minded focus on the reasoning in the highest state court s merits decision, without taking any account of lower court decisions, contravenes AEDPA s deferential framework. Section 2254(d)(1) requires deference with regard to any claim that was adjudicated on the merits in State court proceedings. Id. AEDPA s use of the plural State court proceedings demonstrates that the federal courts must take into account all of the state-court proceedings in deciding whether the State s criminal justice system has experienced the extreme malfunctio[n] for which federal habeas relief is the remedy. Burt v. Titlow, 134 S. Ct. 10, 16 (2013) (emphasis added). As applied to a situation where a higher state court affirms a lower court s denial of the defendant s claim on a different substantive basis without indicating that it disagrees with the lower court s substantive reasoning AEDPA requires that deference be given the lower court as well. See Hammond, 586 F.3d at 1332; Collins, 742 F.3d at 546; Loden, 778 F.3d at 495. The deferential approach adopted by the Third, Fifth, and Eleventh Circuits is consistent with the instructions this Court has given lower courts for

17 adjudicating multi-prong federal claims, such as Strickland claims. This Court has told lower courts that [i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice... that course should be followed. Strickland, 466 U.S. at 697. The Wisconsin Supreme Court took that advice in State v. Moats, 156 Wis. 2d 74, 101-02, 457 N.W.2d 299, 311-12 (1990), ushering in a regular practice of denying defendants ineffectiveness claims based on lack of prejudice without addressing deficient performance. See, e.g., State v. Sanchez, 201 Wis. 2d 219, 236-37, 548 N.W.2d 69, 76 (1996); State v. Erickson, 227 Wis. 2d 758, 769 n.7, 596 N.W.2d 749, 756 n.7 (1999). The approach adopted by the Seventh and Ninth Circuits would punish States who followed this Court s advice in Strickland, thus encouraging them to expend time and resources to render unnecessary decisions on every prong of a multi-pronged constitutional analysis, lest their decisions be stripped of AEDPA deference. Accord Richter, 562 U.S. at 99 (rejecting an interpretation of AEDPA that would undermine the freedom of a state judiciary to concentrate its resources on the cases where opinions are most needed ). This Court s recent caselaw accords with this deferential approach. In Wiggins, 539 U.S. 510, this Court faced a situation where neither state court had considered Strickland prejudice, both courts having denied the claim based only upon lack of deficiency. This Court reviewed the prejudice question de novo only because neither of the state courts below reached this prong of the Strickland

18 analysis. Id. at 534 (emphasis added). As the Eleventh Circuit noted, [t]he implication from Wiggins is that had either of the state courts reached the other prong, its decision would have been entitled to deference under 2254(d)(1). Hammond, 586 F.3d at 1331. So while Wiggins cannot fairly be described as a fully briefed, considered decision on the question presented, its choice of wording suggests that, in light of AEDPA, this Court believed that it should consider all of the state-court decisions before deciding that the State s criminal justice system has experienced the extreme malfunctio[n] for which federal habeas relief is the remedy. Titlow, 134 S. Ct. at 16. The Seventh and Ninth Circuits wrongly relied upon this Court s decision in Ylst to support their contrary approach. As Judge Easterbrook pointed out, Ylst merely deals with a situation in which Court A says something and Court B is silent.... When this sequence occurs, [Ylst] holds, the federal court should treat the reason given by Court A as the state s rationale. App. 66a-67a (Easterbrook, J., concurring). This approach is based upon the rebuttable presumption that where a higher court offers no reasoning in affirming a lower court decision, it is indicating agree[ment]... with the reasons given below. Ylst, 501 U.S. at 803-04. But when the higher court provides a different reason for denying relief, without casting any doubt on the lower court s alternative reasoning or holding, the Ylst rebuttable presumption has no application. App. 67a (Easterbrook, J., concurring).

19 2. Alternatively, this Court may well decide that the Third, Fifth, and Eleventh Circuits adopted the proper approach to the question presented, but issue a broader ruling to provide more complete guidance. As noted above, this Court in Wiggins held that when the state courts all reject a defendant s federal claim based upon lack of deficiency, while not deciding the prejudice question, the prejudice issue should be decided de novo on federal habeas review. Wiggins, 539 U.S. at 534; accord Rompilla v. Beard, 545 U.S. 374, 390 (2005); Porter v. McCollum, 558 U.S. 30, 39 (2009). But as Judge Easterbrook explained below, this holding appears irreconcilable with the reasoning in this Court s subsequent decision in Richter, 562 U.S. 86. App. 67a-73a. Under this reading of Richter, if a state appellate court issues an on the merits rejection of a federal claim with multiple prongs by focusing exclusively on just one prong, AEDPA deference would apply to all of the prongs even if no lower state-court decision had opined upon the other prongs. Id. In Richter, the only state court to decide the defendant s federal claim on the merits summarily denied relief without providing any reasoned justification. Richter, 562 U.S. at 97. This Court held that [w]here a state court s decision is unaccompanied by an explanation, the habeas petitioner s burden still must be met by showing there was no reasonable basis for the state court to deny relief. Id. at 98. This holding applies whether or not the state court reveals which of the elements in a multipart claim it found insufficient, for

20 2254(d) applies when a claim, not a component of one, has been adjudicated. Id. Put another way, when a federal claim involves multiple prongs for example, Strickland s deficiency and prejudice prongs a prisoner challenging a state court s summary denial of relief on the merits must prevail on AEDPA deference for each of the claim s prongs. Id. Richter s reasoning, taken to its logical conclusion, would require overruling Wiggins in a manner that also decides the question presented in this case. App. 67a-71a. Richter held that a Strickland claim is a single claim for purposes of AEDPA, meaning that a state appellate court s on the merits rejection of that claim triggers AEDPA deference for both prongs of the claim. App. 69a. But given that Richter held that denying a multi-pronged federal claim on the merits without discussing any of the prongs requires deference on all prongs of the claim, if that same court states that the defendant failed to satisfy one prong without indicating in any way that he satisfied the others this should not deprive those other prongs of AEDPA deference. Or, as Judge Easterbrook put it, Richter holds that 2254(d) applies even when a state court gives no reason; 2254(d) is activated by a decision on the merits, not by the length (or even the existence) of an opinion. Doesn t this imply that, when a state court gives one sufficient reason and stops, the claim has been fully adjudicated? App. 69a.

21 II. The Seventh Circuit s Refusal To Afford AEDPA Deference Because Of The State Appellate Court s Imprecise Articulation Of The Strickland Prejudice Prong Flouts This Court s Decision In Visciotti. 1. In Woodford v. Visciotti, 537 U.S. 19 (2002) (per curiam), the Ninth Circuit had refused to afford AEDPA deference to a state court s decision regarding Strickland prejudice because the state court used the term probable several times without the modifier reasonable. Id. at 22. This Court reversed, noting that the Ninth Circuit had improperly ignored other indicia that the state court understood Strickland prejudice. Id. at 22-24. Visciotti observed that even this Court has occasional[ly] indulge[d] in the same imprecision. Id. at 23-24. This Court also faulted the Ninth Circuit s readiness to attribute error [a]s inconsistent both with the presumption that state courts know and follow the law, and with AEDPA s highly deferential standard for evaluating statecourt rulings, which demands that state-court decisions be given the benefit of the doubt. Id. at 24 (quoting Lindh v. Murphy, 521 U.S. 320, 333 & n.7 (1997)); accord Holland v. Jackson, 542 U.S. 649, 655 (2004) (per curiam). The Seventh Circuit s decision in this case is contrary to Visciotti. The Seventh Circuit concluded that the state appellate court applied an incorrect standard solely because it omitted Strickland s reasonable probability language in paraphrasing

22 the test for prejudice. App. 13a. The state court imprecision that the Seventh Circuit found dispositive is of the same character as the imprecision in Visciotti, which this Court held was an insufficient basis for evading AEDPA. Visciotti, 537 U.S. at 23-24. Just like the Ninth Circuit in Visciotti, the Seventh Circuit showed an eagerness to attribute error that is inconsistent with the presumption that state courts know and follow the law, and with AEDPA s highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt. Id. at 24 (quotation omitted). Put another way, the Seventh Circuit concluded without absolutely any evidence beyond some imprecise wording that the Wisconsin Court of Appeals simply did not understand the well-known Strickland prejudice standard, which that court applies on a regular basis. See supra at 9. The Seventh Circuit also duplicated the Ninth Circuit s error in Visciotti by failing to attribute significance to the state court s indication that it understood the Strickland prejudice prong. Immediately after the Wisconsin Court of Appeals imprecisely articulated the Strickland prejudice standard, that court cited two of its own prior decisions properly articulating and applying that standard. App. 64a (citing State v. Reed, 2002 WI App 209, 256 Wis. 2d 1019, 650 N.W.2d 885; Moats, 457 N.W.2d 299). The Seventh Circuit failed to give the state court the benefit of the doubt when it attributed dispositive significance to the state court s

23 imprecise articulation, Visciotti, 537 U.S. at 23-24, without giving any weight to its citation to its own cases. 2. Notwithstanding Visciotti, certain federal courts steadfastly refuse to afford AEDPA deference based solely upon imprecise phrasing of well-known standards such as Strickland. In this case, both the district court and all three judges on the Seventh Circuit panel made this error. See supra at 8-9. The Fifth Circuit corrected the same mistake in Charles v. Stephens, 736 F.3d 380 (5th Cir. 2013), cert. denied, 135 S. Ct. 52 (2014), where the district court declined to afford AEDPA deference because the state court had omitted Strickland s reasonable probability modifier. Id. at 392. In reversing, the Fifth Circuit found it significant that the state court had cited several cases applying the correct standard for Strickland prejudice, which is exactly what the Wisconsin Court of Appeals did in the present case. Accord Parker v. Sec y for Dep t of Corr., 331 F.3d 764, 786 (11th Cir. 2003) ( Despite the imprecise language used by the Florida Supreme Court, we conclude the court understood and applied the correct prejudice standard from Strickland. ). This issue is presently before the Ninth Circuit as well. In Mann v. Ryan, 774 F.3d 1203 (9th Cir. 2014), reh g en banc ordered, 797 F.3d 654 (2015), the panel majority refused to apply AEDPA deference to a state-court decision on Strickland prejudice because certain wording in the decision suggested to the panel that the state court applied a

24 more demanding prejudice standard. Mann, 774 F.3d at 1211. In a vigorous dissent, Judge Kozinski explained that the panel s decision violated three of AEDPA s guiding principles : (1) the presumption that state judges know and follow the law; (2) the directive to construe any ambiguity in language in favor of the state court; and (3) the obligation to assess the fair import of the state court s decision instead of demand[ing] a formulary statement. Mann, 774 F.3d at 1224 (Kozinski, J., concurring in part and dissenting in part) (quotation omitted). Judge Kozinski also explained that the panel s parsing of the state court s reasoning was particularly inappropriate in light of this Court s decision in Richter. Id. After all, a habeas petitioner is not entitled to any reasoning at all, so reversing a state court s reasonable decision on the grounds of incorrect reasoning risks treating defendants inconsistently: Those who are given incorrect reasoning get relief while those who aren t given any reasoning do not. And it has the perverse effect of encouraging state courts to deny relief summarily, to insulate their orders from tinkering by the federal courts. Id. at 1224-25. The States should not have to continue to fight over this issue, especially because this Court settled the question in Visciotti. Visciotti held that inartful recitation of the federal standard is insufficient, without more, to deprive a state court s adjudication of AEDPA deference. Visciotti, 537 U.S. at 23-24. Yet, this issue continues to confound certain lower courts. This error is particularly inexcusable after

25 Richter, as Judge Kozinski pointed out. If a State is entitled to deference on all prongs in a multipronged test when it offers absolutely no reasoning to support its decision, it makes no sense to strip the state court s on the merits adjudication of AEDPA deference simply for making a relatively common mistake by imprecisely articulating one prong of a federal rule. Further instruction from this Court that Visciotti articulated a mandatory rule for AEDPA cases will help end the sort of unlawful practice that the Seventh Circuit engaged in below. Cf. Owens v. Duncan, 781 F.3d 360 (7th Cir. 2015), cert. granted, 136 S. Ct. 27 (Oct. 1, 2015). III. This Case Is An Ideal Vehicle For Deciding Both Important, Oft- Recurring Questions Presented. 1. The two questions presented here are exceptionally important because they concern the consistent, accurate application of AEDPA. Congress intended AEDPA to advance... the principles of comity, finality, and federalism. Williams v. Taylor, 529 U.S. 420, 436 (2000). To protect these critical principles, this Court regularly grants review to ensure that the federal appellate courts are uniformly and appropriately applying AEDPA. See Owens, 136 S. Ct. 27; Johnson v. Williams, 133 S. Ct. 1088 (2013); Metrish v. Lancaster, 133 S. Ct. 1781 (2013); Cullen v. Pinholster, 563 U.S. 170 (2011); Richter, 562 U.S. at 92.

26 These two questions will continue to recur absent this Court s intervention. As the recent cases outlined above illustrate, the courts of appeals are regularly confronted with multiple levels of state court decisions, each addressing different components of the same claim, see Hammond, 586 F.3d at 1332; Collins, 742 F.3d at 546; Loden, 778 F.3d at 495; Barker, 423 F.3d at 1094, and imprecise articulation of federal rules, see Mann, 774 F.3d at 1211; Charles, 736 F.3d at 392; Parker, 331 F.3d at 786. And these reported federal appellate cases are just the tip of the iceberg. After all, most States allow multiple levels of review for criminal convictions, and imprecise articulation of federal standards is unavoidable because of the sheer volume of criminal cases that these state courts handle. See Richter, 562 U.S. at 99. AEDPA s principles of comity, finality, and federalism demand that these decisions get the same level of deference in federal courts, regardless of the circuit in which they arise. Williams, 529 U.S. at 436. 2. This case is an ideal vehicle for resolving both of the questions presented. The facts in this case are straightforward and ideal for resolution of the questions. The circuit court denied the Strickland claim based upon one prong, while the Wisconsin Court of Appeals decided the question based upon another prong, without discussing the prong the circuit court addressed. See supra at 6. And the Wisconsin Court of Appeals imprecise articulation is shorn of any complications that may be involved in other cases, given the brevity of that court s

27 reasoning. Especially because this Court in Richter approved the practice of summary denials of federal claims by busy state courts, those state courts would benefit greatly from definitive guidance that if their dispositions do contain some brief reasoning, some imprecision in that reasoning will not rob the decision of AEDPA deference. 3. This case also presents a strong vehicle to decide these questions because, according to the Seventh Circuit, the AEDPA deference question may well have been outcome determinative as to both questions. App. 14a, 21a. While Petitioner strongly believes that it should prevail on both Strickland prongs even under de novo review, if the issues are viewed through AEDPA s deferential lens, habeas relief could not possibly be appropriate. On the issue whether trial counsel provided deficient performance, AEDPA s doubly deferential approach to reviewing state-court decisions would require reversing the Seventh Circuit. Pinholster, 563 U.S. at 190 (quotation omitted). The selection of an expert witness is a paradigmatic example of the type of strategic choic[e] that, when made after thorough investigation of [the] law and facts, is virtually unchallengeable. Hinton v. Alabama, 134 S. Ct. 1081, 1089 (2014) (per curiam) (quotation omitted). Here, trial counsel s decision to forego consulting a forensic pathologist was entirely reasonable given that Defendant confessed to choking his victim, despite her struggling, kicking the floor, yelling [at me] to stop, and telling me

28 she loved me. App. 5a. Given this confession and the fact the victim s medical history suggested no possible alternative cause of death, defense counsel made an entirely reasonable decision that retaining a forensic pathologist would not help Defendant s case. App. 61a. Similarly, with regard to prejudice, Defendant cannot show that there is a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different, especially when that question is considered under AEDPA deference. Pinholster, 563 U.S. at 189. A reasonable probability is a probability sufficient to undermine confidence in the outcome.... That requires a substantial, not just conceivable, likelihood of a different result. Id. at 189 (quoting Richter, 562 U.S. at 111-12). Defendant simply cannot meet that standard here. The evidence against Defendant including his own confession, the testimony of the neighbor, and the testimony of Dr. Mainland was overwhelming. In the face of this evidence, Dr. Teas could merely testify that certain physical signs of strangulation were absent, although she could not rule out strangulation. App. 41a-42a. Dr. Teas even stated that it is my opinion that [the victim] died as a result of pressure on the neck. App. 46a. And, as the Seventh Circuit noted, Dr. Teas would not even have been permitted to testify regarding Defendant s state of mind, which was the only plausible defense that Defendant could have presented given his confession. App. 23a. Adding Dr. Teas testimony which only confirmed

29 the State s theory on cause of death to the evidence presented for the jury s consideration falls far short of the showing necessary to displace a state-court decision that the allegedly deficient performance did not prejudice Defendant. CONCLUSION The petition for writ of certiorari should be granted. Respectfully submitted, BRAD D. SCHIMEL Attorney General of Wisconsin MISHA TSEYTLIN Solicitor General MARGUERITE M. MOELLER Assistant Attorney General JEFFREY J. KASSEL Assistant Attorney General *Counsel of Record Attorneys for Petitioner Wisconsin Department of Justice Post Office Box 7857 Madison, Wisconsin 53707-7857 (608) 266-2340 kasseljj@doj.state.wi.us January 2016

Marc Clements v. Oscar C. Thomas INDEX TO APPENDIX APPENDIX A: Seventh Circuit Opinion and Decision in Thomas v. Clements, 789 F.3d 760 (7th Cir. 2015)... 1a-25a APPENDIX B: United States District Court for the Eastern District of Wisconsin Opinion and Order in Thomas v. Schwochert, No. 12-C-1024 (E.D. Wis. 2014)... 26a-54a APPENDIX C: Wisconsin Court of Appeals Decision in State v. Thomas, No. 2010AP1606-CR (Wis. Ct. App. Nov. 9, 2011)... 55a-64a APPENDIX D: Seventh Circuit Order Denying Petition for Rehearing En Banc in Thomas v. Clements, 797 F.3d 445 (7th Cir. 2015) (per curiam)... 65a-73a APPENDIX E: Excerpt of Transcript of Postconviction Motion Hearing, May 27, 2010... 74a-81a

No. 14-2539 1a APPENDIX A In the United States Court of Appeals For the Seventh Circuit OSCAR C. THOMAS, MARC CLEMENTS, v. Petitioner-Appellant, Respondent-Appellee. Appeal from the United States District Court for the Eastern District of Wisconsin. No. 12-cv-1024 William E. Callahan, Jr. Magistrate Judge. ARGUED JANUARY 6, 2015 DECIDED JUNE 16, 2015 Before FLAUM, WILLIAMS, and TINDER, Circuit Judges. WILLIAMS, Circuit Judge. Joyce Oliver-Thomas passed away sometime in the early morning of December 27, 2006. Her ex-husband and roommate Oscar Thomas was convicted of intentionally committing her murder (as well as first-degree sexual assault and false imprisonment). During the

2a trial, the state s forensic pathologist testified that the autopsy findings were consistent with the application of intentional pressure to Oliver-Thomas s neck, resulting in manual strangulation and her death. Thomas argues that his trial counsel was ineffective for failing to consider and consult with an expert to review the pathologist s report and perhaps testify consistently with the defense s theory of the case, namely that Thomas unintentionally caused Oliver-Thomas s death by putting pressure on her neck for too long during sex. To show he received ineffective assistance, Thomas must demonstrate his counsel s performance was deficient and resulted in prejudice. Since the last reasoned opinion from the state courts did not address the performance analysis and applied the wrong standard to the prejudice analysis, we review Thomas s claim de novo. We agree with Thomas that a reasonable counsel would have consider and/or consulted with a forensic expert, especially when the state s expert testified there was no evidence of external bruising on Oliver-Thomas s neck but that the expert was still sure that this was intentional strangulation. Given the weakness of the state s case, especially as it relates to Thomas s intent, had counsel reached out to a forensic pathologist, or another expert similar to the habeas expert, and the expert testified, there is a reasonable probability the outcome of the trial would have turned out differently. Defendant s expert testimony would have highlighted the shortcomings in the medical evidence the lack of external bruises on Oliver-Thomas s neck and lack of any signs of a struggle on either Thomas or Oliver-Thomas and provided an expert, medical basis upon which the jury could have found reasonable doubt. Therefore we reverse the district court s denial of Thomas s