Harrington's wake: unanswered questions on AEDPA's application to summary dispositions.

• Author: Seligman, Matthew
• Position: Antiterrorism and Effective Death Penalty Act of 1996

INTRODUCTION I. PRIOR JUDICIAL TREATMENTS OF AEDPA AND SUMMARY DISPOSITIONS II. AN ANALYSIS OF AEDPA DEFERENCE AS APPLIED TO SUMMARY DISPOSITIONS A. A Novel Analytic Framework: Record-Based Versus Extra-Record Claims B. Adjudication on the Merits Redux C. The Contrary Prong D. The Unreasonable Application Prong CONCLUSION APPENDIX: EMPIRICAL DATA ON SUMMARY DISPOSITIONS INTRODUCTION

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) (1) significantly changed the relationship between state criminal courts and federal habeas courts. (2) Prior to the statute's enactment, (3) various procedural bars might have blocked a prisoner from obtaining habeas relief in federal court, (4) and a state court's determinations of fact were due deference, (5) but a state court's conclusions of law were subject to de novo review. (6) AEDPA changed this paradigm by limiting the availability of habeas relief even further, under 28 U.S.C. [section] 2254(d), to those cases in which the state court's decision is not merely legally incorrect--the writ may be granted only when the state court decision was "contrary to, or involved an unreasonable application of" clearly established law, or was "based on an unreasonable determination of the facts." (7) In the Supreme Court's foundational case interpreting AEDPA's standard of review, Williams v. Taylor, Justice O'Connor, writing for the Court, explained that the new paradigm places substantive constraints on federal courts' authority to grant the writ, by limiting the writ's issuance to cases in which the state court's decision was "unreasonable." (8)

This new paradigm of deference is premised on an ideal of reasoned dialogue between state courts and federal courts sitting in habeas. (9) This ideal assumes that state courts will conscientiously and transparently adjudicate criminal cases at trial, on direct appeal, and in any available state habeas proceeding, by diligently examining the evidence and faithfully applying the law. It further assumes that the federal habeas court will be able to examine the state court's deliberative process to determine whether the decision the state court issued at the conclusion of this deliberative process was unreasonable. This reasoned dialogue is most fully manifest when a state court issues a written opinion addressing relevant issues of law and fact, which a federal court can then analyze under AEDPA's paradigm of deference. If, and only if, the state court's decision was unreasonable, then the federal court may issue the writ--itself accompanied by a written opinion explaining its decision.

However, this ideal scenario is just that--an ideal. State courts do not always issue written opinions in deciding criminal cases, either on direct review or in state habeas proceedings. Instead, state courts frequently issue "summary dispositions," which are decisions unaccompanied by a written opinion--in California, upwards of 97% of prisoners' claims are decided this way. (10) When a state criminal case is decided by summary disposition, it is unclear how a federal habeas court should proceed. This question confounded the federal courts of appeals. In the decade and a half following AEDPA's enactment, the circuit courts deployed a variety of solutions to the problem of summary dispositions, ranging from great deference to de novo review. (11)

The Supreme Court recently addressed the question of AEDPA's application to state court summary dispositions in Harrington v. Richter. (12) In Richter v. Hickman, (13) the Ninth Circuit granted habeas relief on a Strickland ineffective assistance of counsel claim. (14) The prisoner's trial counsel failed to introduce potentially exculpatory forensic evidence relating to blood-spatter patterns, and the Supreme Court of California denied relief without providing a written opinion. (15) Its summary denial stated in full, "Petition for writ of habeas corpus is DENIED." (16) The District Court for the Eastern District of California (17) and a panel of the Ninth Circuit denied relief. (18) Both denials acknowledged AEDPA's deferential standard of review, (19) but held that relief would not be warranted even under a de novo application of the Strickland standard to the facts. (20) Sitting en banc, and over vigorous dissent, (21) the Ninth Circuit reversed the panel decision on the merits, holding that relief was warranted, even under AEDPA's deferential standard of review. The Ninth Circuit conspicuously declined to hold that AEDPA's deferential standard of review applies to state court summary dispositions, reserving that question "[b]ecause we would grant the writ whether we reviewed the state court's decision de novo or for objective unreasonableness." (22) Accordingly, although the Ninth Circuit "appl[ied] the stricter unreasonableness standard," it did "not determine whether or when an unreasoned state court decision warrants AEDPA deference." (23) California appealed the Ninth Circuit's decision on the substantive Strickland claim. (24) In granting certiorari, the Supreme Court added a second question presented, asking the parties to brief whether AEDPA should apply to summary dispositions. (25)

The Supreme Court unanimously reversed the Ninth Circuit's en banc decision in a strongly worded opinion by Justice Kennedy. (26) The Court held that "[section] 2254(d) does not require a state court to give reasons before its decision can be deemed to have been 'adjudicated on the merits.'" (27) The Court succinctly addressed the question of whether AEDPA deference applied to the case, noting that "[t]here is no text in the statute requiring a statement of reasons." (28) The Court explained that "[b]y its terms [section] 2254(d) bars relitigation of any claim 'adjudicated on the merits' in state court, subject only to the exceptions in [section][section] 2254(d)(1) and (d)(2)." (29) These two exceptions require "determining whether a state court's decision resulted from an unreasonable legal or factual conclusion," which in turn "does not require that there be an opinion from the state court explaining the state court's reasoning." (30) Instead, the habeas petitioner bears the affirmative burden to "show[] there was no reasonable basis for the state court to deny relief." (31) Because Richter had not made this showing, habeas relief was precluded.

The Court's decision in Harrington, I argue in this Note, is undoubtedly correct in holding that summary dispositions must be reviewed deferentially pursuant to [section] 2254(d)(1) and [section] 2254(d)(2). There is no basis in the statute's text to deny that AEDPA applies to all state court decisions, including decisions issued without a written opinion, so long as the decision is an adjudication on the merits. A state court decision is not disqualified as an adjudication on the merits simply because it lacks a written opinion. Indeed, the Harrington Court went even further, holding that the presumption should be that a silent decision is an adjudication on the merits: "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." (32)

But this holding, as far as it goes, does not address the crucial issue of how--and not just whether--AEDPA deference applies to state court summary dispositions. In the absence of a written opinion, a federal court may have no basis to determine whether the state court's decision was reasonable or not. While it is the state court decision, and not the written opinion, that is the object of a federal court's analysis according to AEDPA's text, (33) a written opinion may provide the best, and perhaps only, ground for determining the reasonableness of the decision that it accompanies. (34) Under AEDPA, federal courts must deny a habeas petition unless the state court's decision is contrary to, or involves an unreasonable application of, clearly established federal law. (35) If the federal habeas court cannot affirmatively determine that the state court's decision was unreasonable because there is no written opinion, then AEDPA apparently requires that the federal court deny the petition. The fatal error in such petitions would simply be the inability of the federal court to determine the reasonableness of the state court's decision one way or the other, by no fault of the prisoner.

Summary dispositions are opaque, giving no outward indication of the deliberative processes utilized by the issuing court. A summary disposition may result from a conscientious evaluation of the evidence in light of a reasonable interpretation of governing federal law--the state court might have done everything it would normally do prior to issuing a written opinion, but for some reason (perhaps judicial economy) decided not to issue or publish an opinion memorializing that deliberative process. Or, it may result from a haphazard glance at the evidence and a cursory review of the law. Indeed, for all outward indications, a summary disposition may be the result of no deliberation at all. State courts could very well issue summary dispositions without examining the evidence at all or reviewing the claim in light of federal law. They may, in short, automatically issue summary denials of relief to every prisoner's petition.

The existing literature does not provide satisfying answers to the question of how AEDPA should apply to summary dispositions. Some commentators have argued that summary dispositions are not due AEDPA deference because they are not adjudications on the merits. (36) Others have argued summary dispositions are per se unreasonable applications of law, simply by virtue of the fact that a written opinion is absent. (37) Both of these approaches are incorrect. The first approach is properly foreclosed by the Court's decision in Harrington. The...