John Pallas, Division Chief of the Criminal Appellate Division of the Michigan Attorney General’s Office

During the Supreme Court’s 2017 term, the Court released six opinions addressing lower court decisions in federal habeas cases. This signals that federal habeas law continues to be of significant interest to the Court and, indeed, the lower federal courts.

The most significant of these opinions is Wilson v. Sellers, 138 S. Ct. 1118 (2018). The majority, in an opinion authored by Justice Breyer, held that when a state appellate court (meaning in most cases the state supreme court) issues a summary order denying a prisoner’s state appeal, affirms the decision of a lower court, or otherwise issues an order that is not accompanied by reasons, a federal habeas court should “look through” such “unexplained order[s]” until it finds “the last related state-court decision that does provide a relevant rationale.” Then the court should “presume that the unexplained affirmance adopted the same reasoning.” The majority emphasized that this is only a presumption and that “the State may rebut the presumption by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court’s decision, such as alternative grounds for affirmance that were briefed or argued to the state supreme court or obvious in the record it reviewed.”

At first glance, the majority opinion appears to backtrack from the Court’s holding in Harrington v. Richter, 562 U.S. 86 (2011), which held that orders of the type discussed here are presumed to be adjudications on the merits and that, in order to obtain habeas relief, a prisoner must show that there are no reasonable arguments or theories which could have supported the state court’s decision. But the majority suggests that if a federal habeas court looks through to a reasoned state court decision and that decision is unreasonable, the presumption that a state supreme court adopted the unreasonable reasoning of a lower court may be overcome and the decision more likely rests upon convincing alternative grounds for affirmance presented in either the briefing in the state supreme court or in the federal court in response to the habeas petition. In other words, the majority seems to be signaling that, if a lower state court decision turns out to be unreasonable, then a federal habeas court should determine whether there are no reasonable arguments or theories which could have supported the state supreme court’s affirmance or denial of relief, precisely what Richter instructs federal courts to do. As Justice Gorsuch points out in his dissenting opinion, this new look through presumption brings a federal court back to “[e]xactly what a federal court applying the [habeas] statute and Richter has had to do.”

The Supreme Court subsequently addressed a related situation in Sexton v. Beaudreaux, 138 S. Ct. 2555 (2018), a per curiam opinion. However, unlike Wilson, there was no reasoned decision from any of the state courts addressing the prisoner’s claim that his counsel was ineffective for failing to file a motion to suppress the identification testimony of a witness. Rather, the California Court of Appeals summarily denied the state habeas petition and the California Supreme Court denied review. While there was no dispute that, per Richter, there was an adjudication on the merits (presumably the summary order from the California Court of Appeals), the Ninth Circuit reversed on federal habeas review issuing an opinion that, as the Court noted, “essentially evaluated the merits de novo, only tacking on a perfunctory statement at the end of its analysis asserting that the state court’s decision was unreasonable.” As such, the Court found that the Ninth Circuit’s analysis, which should have had deference to the state court decision “near its apex,” was fundamentally flawed. The Court also found that the Ninth Circuit “effectively inverted the rule established in Richter.” In other words, “[i]nstead of considering the ‘arguments or theories [that] could have supported the state court’s summary decision, . . . the Ninth Circuit considered arguments against the state court’s decision that [the prisoner] never even made in his state habeas petition.” Justice Breyer dissented.

The Supreme Court emphasized basic federal habeas tenets in its per curiam opinion in Kernan v. Cuero, 138 S. Ct. 4 (2017). Here, the Court reversed the Ninth Circuit which had ordered specific performance of a plea agreement that the state prosecutor had originally offered the prisoner prior to discovering an error that actually meant that the prisoner was exposed to a significantly higher sentence. The state prosecutor amended the complaint the day before the sentencing to reflect this discovery. The trial court gave the prisoner the opportunity to withdraw from the agreement, which he did. Subsequently, however, the prisoner decided to plead to the charges in the amended complaint and was sentenced to a term higher than that referenced in the original plea agreement. The Court found that none of its holdings clearly established that, under the circumstances presented, the state trial court was required to impose the lower sentence that the parties originally expected. The Court found that the Ninth Circuit had mistakenly relied on a concurring opinion in its decision in Santobello v. New York, 404 U.S. 257 (1971), as well as federal circuit precedent, neither of which constitute clearly established federal law for habeas purposes.

Likewise, the Supreme Court’s per curiam opinion in Dunn v. Madison, 138 S. Ct. 9 (2017), issued on the same day as Kernan, reiterates basic tenets of federal habeas law.  In this death penalty case arising from the murder of a police officer, the state trial court conducted a hearing on whether the prisoner, due to several strokes suffered during his incarceration, understood that he was being executed for crime. The state court, after hearing testimony from psychologists from both sides, found that the prisoner understood both that he had been tried and imprisoned for murder and that the State of Alabama was going to execute him for that crime, notwithstanding his loss of memory about the murder itself. On habeas review, the Eleventh Circuit reversed, relying on the fact that the prisoner no longer had any memory of the murder he committed. The Court reversed holding that, under its applicable precedent (Ford v. Wainwright, 477 U.S. 399 (1986), and Panetti v. Quarterman, 551 U.S. 930 (2007)), the state court’s decision was not unreasonable nor did the court unreasonably apply the evidence before it.  Justices Ginsburg and Breyer wrote concurring opinions.

Two other opinions of the Supreme Court addressed procedural aspects of federal habeas practice. In Tharpe v. Sellers, 138 S. Ct. 545 (2018), the Court, in another per curiam opinion, reversed the Eleventh Circuit’s denial of a certificate of appealabililty from the district court’s denial of a motion filed under Federal Rule of Civil Procedure 60(b) and remanded the case to the Eleventh Circuit “for further consideration of the question whether Tharpe is entitled to a COA.” The opinion seems largely limited to its “unusual facts” and does not otherwise break new ground or give further guidance to the federal courts of appeals on the standard for determining whether they should grant certificates of appealablity to prisoners who were denied habeas relief. Justice Thomas, joined by Justices Alito and Gorsuch, dissented. In Ayestas v. Davis, 138 S. Ct. 1080 (2018), the Court reversed the lower federal court decisions denying the prisoner’s request for $20,016 in funding in this case arising from a conviction for capital murder and a subsequent jury determination that the prisoner should be executed. The funding would have been used to investigate whether the prisoner’s trial counsel and his state habeas counsel were ineffective for not conducting an adequate search for mitigation evidence that would have persuaded the jury not to impose the death penalty.” In an opinion by Justice Alito, the Court first rejected the State of Texas’ argument that the denial of funding was an administrative function that, unlike a judicial decision, would not be subject to appellate review. Second, the Court held that that, in order to obtain funding under 18 U.S.C. § 3599, the prisoner was required to show that a reasonable attorney would find the services sought to be “reasonably necessary” rather than the Fifth Circuit’s stricter standard of “substantially needed.” Finally, the Court addressed the impact of the underlying ineffective assistance of counsel claim being procedurally defaulted. Citing its holdings in Martinez v. Ryan¸ 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413 (2013), the Supreme Court held that “[i]n those cases in which funding stands a credible chance of enabling a habeas petitioner to overcome the obstacle of procedural default, it may be error for a district court to refuse funding.” Justice Sotomayor concurred in an opinion joined by Justice Ginsburg.