JurisdictionUnited States

Chapter 12 Litigating Questions of Deference: When AEDPA Doesn't Apply

The application of §2254(d)(1)'s limitations on a federal court's ability to reject a state court's incorrect application of the constitution has substantially reshaped federal habeas litigation. When AEDPA applies, a prisoner with a constitutional claim that is properly before a federal court now devotes considerable effort to limiting the reach and meaning of § 2254(d)(1). For a prisoner, establishing that (d)(1) does not apply quite often is the dispositive question. Indeed, many lower courts dismiss federal habeas petitions without even deciding the merits of the question; instead the court will simply note that even if the prisoner has stated a valid claim of constitutional injury, he cannot satisfy the exacting limitations imposed by the "unreasonable application" or "contrary to" clauses of (d)(1). The materials that follow provide a framework for assessing the threshold question of modern federal habeas review: Are there situations in which federal courts are not required to apply the deference enshrined in § 2254? In other words, post-AEDPA, when is de novo review of the merits of a claim permitted?

A. De Novo Review of the Merits of a Claim Permitted When State Court Denial of Relief Does Not Amount to an Adjudication on the Merits

The prefatory language of § 2254(d) provides: "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...."

A number of federal circuits have defined the phrase "adjudication on the merits," as it is used in § 2254(d)(1), as a term of art referring to cases that were decided on the merits. Under this view, when a case is decided on the merits, as opposed to being dismissed on procedural grounds (see procedural default materials, Chapter 9), the case is said to have been adjudicated on the merits such that the limitations on relief contained in § 2254(d) apply. When a case is dismissed on procedural grounds, (d)(1) does not apply.

Of course, this is not to say that a state court denial of relief on procedural grounds is a desirable outcome for a prisoner seeking federal review; quite the contrary. In the usual case, a denial of relief on procedural grounds will completely bar federal review of the claim unless the prisoner can prove cause and prejudice or a miscarriage of justice. See, e.g., Wainwright v. Sykes, supra, Chapter 9. There are, however, circumstances in which a denial of relief on procedural grounds by the state court works to the benefit of the prisoner on federal habeas review.

For example, if the state court denies the prisoner relief on the basis of a procedural bar that is not independent and adequate, then federal review of this claim would not be constrained by AEDPA. See Coleman v. Thompson, supra, Chapter 9. In Coleman, the Supreme court concluded when a state decision "fairly appear[s] to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion," there is no adequate and independent state procedural bar supporting the judgment. In the absence of an adequate and independent state procedural bar, federal review is not precluded. And if federal review is not precluded by an adequate and independent procedural rule, then federal review is unconstrained by AEDPA.

Likewise, a state court may ambiguously assert a procedural bar as to one or more of a prisoner's claims, and a federal court's inability to decipher which claims, if any, are actually being denied on procedural grounds may work to the benefit of the prisoner. For example, in DeBerry v. Portuondo, 403 F.3d 57, 67 (2d Cir. 2005), the court noted that "in many cases it will be necessary to determine whether the state court has adjudicated a claim on the merits to determine the standard of review" and it found that in the case at hand the state appellate court had failed to explain its basis for affirming the trial court's denial of post-conviction relief, thus making it inappropriate for the federal court to conclude that the claim was adjudicated on the merits. Id. Likewise, when the state court simply notes that the claims are either defaulted or without substantive merit, the federal court will not assume that the claims were adjudicated on the merits. See Miranda v. Bennett, 322 F.3d 171, 179 (2d Cir. 2003) ("catch-all sentence stating that [petitioner's] 'remaining contentions are unpreserved for appellate review, without merit, or do not require reversal'" does not justify AEDPA deference). In sum, a state court denial of relief on exclusively procedural grounds is not an adjudication of the merits for purposes of triggering § 2254(d).

Similarly, when a state court simply overlooks, ignores, or refuses to rule on a particular claim, it cannot fairly be said that there has been an adjudication on the merits as required to trigger the limitations contained in § 2254(d). Illustrative of this principle is the bifurcated analysis of ineffective assistance of counsel mandated by Strickland v. Washington, 466 U.S. 668 (1984). In evaluating the scope of AEDPA deference in the context of a Strickland claim the Court noted, "[b]ecause the state courts found the representation adequate, they never reached the issue of prejudice, and so we examine this element of the Strickland claim de novo...."1 Rompilla v. Beard, 545 U.S. 374, 390 (2005). Where the state court has expressly refused to address one of the prongs of the Strickland claim, that prong will be subject to de novo federal review. By analogy, the refusal of a state court to reach the merits of an entire claim may warrant unconstrained federal review. The Tenth Circuit applied the same reasoning in Morris v. Burnett, 319 F.3d 1254, 1267 (10th Cir. 2003), where the court held that "[w]hen the state court addresses the great bulk of the issues raised by the petitioner's brief in that court but omits to address a particular claim, we have inferred that the claim was not decided 'on the merits' in state court." See also Weeks v. Angelone, 176 F.3d 249, 263 (4th Cir. 1999) ("We ... conclude that the Supreme Court of Virginia failed to address his [the petitioner's] request for expert assistance in the fields of pathology and ballistics on the merits. Thus, we do not apply the standards of review set forth in 28 U.S.C.A. § 2254(d), which requires that a claim be 'adjudicated on the merits in State court proceedings.'"); Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001)

Finally, because procedural default rules are not jurisdictional in nature, it is possible that a procedurally defaulted claim might be reviewed de novo by the federal court if the prosecution waives, expressly or impliedly, the procedural default in federal court. In Medley v. Runnels, Judge Ikuta described a case that followed this course:

In those rare circumstances where the state has waived the procedural bar, and we nevertheless decide to proceed to the merits, we have held that de novo review is the applicable standard. See Chaker v. Crogan, 428 F.3d 1215 (9th Cir. 2005). In Chaker, the petitioner raised a constitutional objection to his criminal conviction for the first time in his third state habeas petition. The petition was denied "and the order denying the petition cited California cases concerning procedural default." When Chaker later filed a federal habeas petition, the state did not raise the issue of procedural default, either in the district court or on appeal. We therefore deemed it waived. After declining to dismiss Chaker's petition sua sponte, we held that we were "not precluded from ruling on the merits of Chaker's claim due to his procedural default." However, because there was no state court decision on Chaker's constitutional claim, there was thus "no state decision to review to determine whether the decision was 'contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.'" We concluded that "[i]n such a circumstance, we review the district court's decision de novo without the deference usually accorded state courts under 28 U.S.C. §2254(d)(1)."
This reasoning is consistent with AEDPA, which precludes us from granting a state habeas petition "with respect to any claim that was adjudicated on the merits in State court proceedings" unless the state's adjudication of the claim meets certain criteria. 28 U.S.C. § 2254(d) (emphasis added). We have held that "a state has 'adjudicated' a petitioner's constitutional claim 'on the merits' for purposes of § 2254(d) when it has decided the petitioner's right to post conviction relief on the basis of the substance of the constitutional claim advanced, rather than denying the claim on the basis of a procedural or other rule precluding state court review of the merits."

Medley, 506 F.3d 857, 869-70 (9th Cir. 2007) (Ikuta, J, concurring in part and dissenting in part).

B. De Novo Review of the Merits of a Claim Permitted When the State Court System Summarily Denies the Constitutional Claim

The inapplicability of § 2254(d)'s limitations on relief when the state court has not addressed the claims, or when it has only decided the claim on procedural grounds, is relatively uncontroversial. There is, however, a significant split among the federal circuits as to the question of whether a denial of a prisoner's federal constitutional claims, that is unsupported by any explanation or reasoning, should constitute an adjudication on the merits worthy of deference. If the state court provides no reasoning, or no basis, upon which to assume that it adjudicated all of the claims, much less that it adjudicated them under the controlling federal...

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