Introduction

The Antiterrorism and Effective Death Penalty Act of 19961 (AEDPA) established the current regime under which federal courts address petitions for a writ of habeas corpus by state prisoners. Riddled with ambiguities, AEDPA has frustrated judges and commentators alike.2 Because Congress either failed to conclusively resolve or—more likely—did not even consider the text’s application to a multitude of intricate scenarios, judges fall back on three considerations that animate federal habeas jurisprudence to construct the AEDPA regime: finality, comity, and federalism.3 Currently without limitations, this three-headed beast wreaks havoc, upending traditional methods of statutory interpretation and neutral decision-making.4 To resolve difficult questions of habeas jurisprudence, federal judges must first tame Cerberus.5

This Comment advocates a more nuanced approach to those three principles within the context of an issue that the Supreme Court will decide this coming Term in Wilson v Sellers.6 The problem at hand arises when a higher court—usually the state supreme court—issues a summary disposition affirming the decision of a lower court whose written opinion rejected the merits of the claim.

Marion Wilson Jr took a long, circuitous route from his state-court conviction to the Eleventh Circuit en banc in Wilson v Warden, Georgia Diagnostic Prison7 and finally to the Supreme Court in Wilson v Sellers.8 As federal habeas corpus is a form of collateral review, Wilson is challenging a final judgment from a Georgia state court that sentenced him to the death penalty. Wilson needed to exhaust available state remedies9 before accessing a federal forum in which to claim he is being held “in violation of the Constitution or laws or treaties of the United States.”10 Exhaustion required pursuing his claim—that his attorney’s investigation of mitigation evidence at the penalty phase of his trial constituted constitutionally ineffective assistance of counsel11—through at least one chain of the state appellate system.12 Claims of ineffective assistance of counsel are typically initially presented in state postconviction review (as opposed to on direct review),13 and Wilson’s story is no different. Faced with a “labyrinth”14 of procedural requirements, he nonetheless properly presented his federal claim on state post­conviction review to the Superior Court of Butts County, which issued a written opinion denying relief on the merits.15

In Georgia’s postconviction review system, the petitioner must seek a certificate of probable cause (CPC) to appeal a denial of habeas relief.16 There are two dimensions to the resulting decisions: the legal significance vis-à-vis the petitioner’s claim and the content justifying the result. As to the first, the Georgia Supreme Court’s decision to deny the CPC is a merits determination.17 Thus, in Georgia, a decision not to hear the claim affirms the decision below, as opposed to, say, the Supreme Court’s decision to deny a petition of certiorari, which leaves the lower court’s decision in place without affirming the merits.18 In technical terms, Georgia’s system is one of nondiscretionary review, while the Supreme Court and most other state courts of last resort provide discretionary review.19 And, as relevant to the second dimension, the Georgia Supreme Court denied Wilson’s request for a CPC with a summary disposition.20 Summary dispositions are unexplained decisions that typically contain no information beyond the result—in other words, just “granted” or “denied.”

Having exhausted state postconviction review, Wilson filed his claim for habeas relief in federal court.21 At issue was the application of AEDPA’s state-federal relitigation bar, 28 USC § 2254(d). Section 2254(d) directs federal habeas courts to review “the last state-court adjudication on the merits.”22 This relitigation bar precludes review of the merits of the underlying claim unless the petitioner demonstrates that the state-court decision is unreasonable.23 The state’s chosen structure for postconviction review determines whether the written opinion or the summary disposition was the last adjudication on the merits. If review was discretionary—and thus not on the merits—there is controlling Supreme Court precedent: the court should “look through”24 the summary disposition to evaluate the last written opinion.25 Because the written opinion is the last adjudication on the merits, it is the operative decision for § 2254(d).

But, in states like Georgia that provide nondiscretionary review, the denial of review—here, the decision not to issue a CPC—is an adjudication on the merits. Thus, the summary disposition is the operative decision for § 2254(d).26 If Georgia summarily denies an appeal from a lower court that issued no written opinion, Supreme Court precedent dictates that the federal court review the record for potential reasons that could have supported the result of the summary disposition,27 which this Comment calls “hypothesizing.” However, when Georgia summarily denies an appeal from a lower court that did issue a written opinion, the form of review by the federal court is contested. The parties agree that § 2254(d) operates over the summary disposition. They contest, however, whether the silent denial presumptively adopts the rationale of the lower-court written opinion, such that judges should not supply hypothetical reasons.

Two lines of Supreme Court precedent present equally plausible but incompatible responses (looking through and hypothesizing) to this sequence of state decisions (summary disposition affirming a written opinion). The en banc Eleventh Circuit, by a slim 6–5 margin, held that federal courts should hypothesize reasons that could have supported the summary disposition.28 In the process, the court created a circuit split with the Fourth and Ninth Circuits, who opted to look through to the reasoning in the lower-court opinion.29 As mentioned above, the Supreme Court granted Wilson’s petition for certiorari to settle the look-through/hypothesizing debate.30

The issue is well deserving of its spot on the Court’s docket. There are real stakes in the choice between looking through and hypothesizing for the petitioner, with the approach outcome-determinative given two conditions. First, the lower-court written opinion must be unreasonable under § 2254(d). As the concern is locating unreasonably decided claims, the written opinion must fail § 2254(d) for habeas relief to be possible under either approach.31 If the court looks through to the unreasonable lower-court opinion, it will find § 2254(d) satisfied, which, in most cases, dictates that relief will be granted.32 Second, there must exist a reasonable basis for the opinion that satisfies § 2254(d), such that the court will deny relief if it chooses to hypothesize. The petitioner carries a heavy burden when courts hypothesize: summary dispositions are reasonable “so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.”33 Hypothesizing is more deferential than review based on the opinion’s actual reasoning,34 and summary dispositions are a common state-court method of deciding habeas petitions.35 Thus, the subset of cases brought by state prisoners that involve both an unreasonable lower-court opinion and a hypothetically reasonable summary disposition is significant.36 To make the choice stark: In situations when the federal court would have granted the petition for habeas relief due to the unreasonable written opinion, what impact should a later silent denial have?37

Part I reviews the development of merits review after AEDPA, giving special attention to the Supreme Court’s approach to summary dispositions. Part II recounts the development of the circuit split created by Wilson. Then, after Part III  finds that consideration solely of the text of the statute and the case law leaves residual indeterminacy, Part IV faces the triplet heads of finality, comity, and federalism. On close examination, courts’ application of these three principles often prove unintuitive and contradictory. After recasting these abstract values in more concrete terms, the look-through presumption is revealed to be not only legally consistent but also normatively attractive. Armed with a more nuanced approach, the Court can reclaim finality, comity, and federalism from their current status as across-the-board presumptions against state prisoners.

  • 1. Pub L No 104-132, 110 Stat 1214.
  • 2. Justice David Souter famously remarked that “in a world of silk purses and pigs’ ears, the Act is not a silk purse of the art of statutory drafting.” Lindh v Murphy, 521 US 320, 336 (1997). See also Lee Kovarsky, AEDPA’s Wrecks: Comity, Finality, and Federalism, 82 Tulane L Rev 443, 447 (2007) (describing the provisions of AEDPA as “hastily ratified and poorly cohered”).
  • 3. See, for example, Davis v Ayala, 135 S Ct 2187, 2197 (2015) (“For reasons of finality, comity, and federalism, habeas petitioners are not entitled to habeas relief based on trial error unless they can establish that it resulted in ‘actual prejudice.’”) (quotation marks omitted); McQuiggin v Perkins, 133 S Ct 1924, 1932 (2013) (“It would be passing strange to interpret a statute seeking to promote federalism and comity as requiring . . . .”).
  • 4. See Margaret A. Upshaw, Comment, The Unappealing State of Certificates of Appealability, 82 U Chi L Rev 1609, 1614–15 (2015) (“In light of these [drafting] shortcomings, any critical analysis drawing on statutory text and purpose must be approached with a significant measure of caution.”). This problem is not unique to AEDPA. For an articulation of this methodological defect in the administrative-law context, see Cass R. Sunstein and Adrian Vermuele, The Unbearable Rightness of Auer, 84 U Chi L Rev 297, 300 (2017) (“They invoke large abstractions . . . to resolve a concrete puzzle for which abstractions are either misplaced or unhelpful.”).
  • 5. In Greek mythology, Cerberus is a three-headed dog that guards the gates of Hades to keep the dead from escaping. See David Williams, Deformed Discourse: The Function of the Monster in Mediaeval Thought and Literature 128 (Exeter 1996). Some readers may be more familiar with “Fluffy,” who protects a trapdoor at Hogwarts. See J.K. Rowling, Harry Potter and the Sorcerer’s Stone 275–76 (Scholastic 1998).
  • 6. Wilson v Warden, Georgia Diagnostic Prison, 834 F3d 1227 (11th Cir 2016) (en banc), cert granted, 137 S Ct 1203 (2017).
  • 7. 834 F3d 1227 (11th Cir 2016) (en banc). The en banc decision issued seventeen years after Wilson’s conviction was affirmed on direct review. See id at 1230. See also Joseph L. Hoffmann and Nancy J. King, Rethinking the Federal Role in State Criminal Justice, 84 NYU L Rev 791, 806–07 (2009) (discussing a “study [that] shows that the lag time from sentence to federal filing is over five years”).
  • 8. Petitioners name the custodian of their institution as the respondent to a writ of habeas corpus. See 28 USC § 2243. Lower courts frequently allow the use of the office as a placeholder—like “Warden, Georgia Diagnostic Prison”—but the Supreme Court may order that the official’s name (here, Sellers) be added. See US S Ct Rule 17(d).
  • 9. See 28 USC § 2254(b)(1).
  • 10. 28 USC § 2241(c)(3).
  • 11. See Wilson, 834 F3d at 1230.
  • 12. See O’Sullivan v Boerckel, 526 US 838, 845 (1999) (“[S]tate prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State’s established appellate review process.”).
  • 13. See Martinez v Ryan, 566 US 1, 13 (2012) (“Ineffective-assistance claims often depend on evidence outside the trial record. Direct appeals, without evidentiary hearings, may not be as effective as other proceedings for developing the factual basis for the claim.”).
  • 14. See Aziz Z. Huq, Habeas and the Roberts Court, 81 U Chi L Rev 519, 549 (2014) (describing these procedural barriers as the “Minoan labyrinth”); Stephen R. Reinhardt, The Demise of Habeas Corpus and the Rise of Qualified Immunity: The Court’s Ever Increasing Limitations on the Development and Enforcement of Constitutional Rights and Some Particularly Unfortunate Consequences, 113 Mich L Rev 1219, 1220 (2015) (lamenting the “twisted labyrinth of deliberately crafted legal obstacles”). See also Coleman v Thompson, 501 US 722, 759 (1991) (Blackmun dissenting) (“[T]he Court is creating a Byzantine morass of arbitrary, unnecessary, and unjustifiable impediments to the vindication of federal rights.”).
  • 15. Wilson, 834 F3d at 1230–31.
  • 16. See Ga Code Ann § 9–14–52(a).
  • 17. See Wilson, 834 F3d at 1232–33 (explaining that the Georgia Supreme Court will issue the CPC unless the appeal lacks “arguable merit”). AEDPA prescribes a similar limitation on appeals from adverse decisions by federal district courts, though it is phrased as a negative prohibition instead of an affirmative grant. See 28 USC § 2253(c)(2) (“A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.”) (emphasis added).
  • 18. The Supreme Court usually does not grant certiorari just because a decision is incorrect. See US S Ct Rule 10 (“A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.”).
  • 19. See Wilson, 834 F3d at 1234.
  • 20. See id at 1231. When referring to final determinations of a claim, courts use “summary disposition” and “summary order” interchangeably. Summary orders can also include nondispositive decisions, such as denials of motions to suppress evidence and motions for mistrial. In the interest of consistency and specificity, this Comment adheres to “summary disposition,” along with the more colloquial “silent denial.”
  • 21. See id.
  • 22. Greene v Fisher, 565 US 34, 40 (2011).
  • 23. See 28 USC § 2254(d).
  • 24. See Part I.B.1.
  • 25. See Brumfield v Cain, 135 S Ct 2269, 2276 (2015); Johnson v Tara Williams, 568 US 289, 297 n 1 (2013).
  • 26. See Harrington v Richter, 562 US 86, 100 (2011) (“[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. See Part I.B.2.
  • 28. See generally Wilson, 843 F3d 1227.
  • 29. See generally Cannedy v Adams, 706 F3d 1148 (9th Cir 2013) (“Cannedy I”); Grueninger v Director, Virginia Department of Corrections, 813 F3d 517 (4th Cir 2016).
  • 30. Judge Adalberto Jordan soon will discover the fate of his “prediction.” See Wilson, 834 F3d at 1242 (Jordan dissenting) (stylizing his opinion as a “prediction [ ] that the Supreme Court will . . . hold that the presumption [of looking through] in Ylst v. Nunnemaker governs”) (citation omitted).
  • 31. If the written opinion is reasonable, the petition will be denied under either approach: If the federal court looks through, the opinion will satisfy § 2254(d). If the federal court does not look through, the reasoning in the opinion is still a hypothetical basis supporting the later summary disposition.
  • 32. After bypassing § 2254(d), a petitioner technically must still prevail on de novo review. See note 79 and accompanying text. The process of demonstrating that a state decision was unreasonable, however, will almost always include the lesser showing that it was incorrect.
  • 33. Richter, 562 US at 101, quoting Yarborough v Alvarado, 541 US 652, 664 (2004). The Court’s retroactivity precedents use similar language to identify new rules. See O’Dell v Netherland, 521 US 151, 156 (1997) (“[W]e will not disturb a final state conviction or sentence unless it can be said that a state court . . . would have acted objectively unreasonably by not extending the relief later sought in federal court.”); Butler v McKellar, 494 US 407, 415 (1990) (stating that the outcome “was susceptible to debate among reasonable minds”).
  • 34. See Huq, 81 U Chi L Rev at 538 (cited in note 14) (describing how the Court rejected “less onerous” thresholds for relief in Richter).
  • 35. See Brandon L. Garrett and Lee Kovarsky, Federal Habeas Corpus: Executive Detention and Post-Conviction Litigation 302 (Foundation 2013) (stating that “the vast majority of state dispositions are in the form of summary orders”).
  • 36. Though the statute authorizing habeas review for federal prisoners, 28 USC § 2255, parallels that for state prisoners in most respects, the issue in this Comment is relevant only to state prisoners. Federal prisoners file in their court of conviction. 28 USC § 2255(a). The idea of a court deferring to its own decision is somewhat nonsensical (at least within the context of litigation on a single claim, as opposed to when applying norms of stare decisis). Strange too is the idea of a district court, on habeas review, overturning an authoritative decision issued by its circuit court of appeals on direct review. See Reed v Farley, 512 US 339, 358 (1994) (Scalia concurring in part and concurring in the judgment) (“[C]laims will ordinarily not be entertained under § 2255 that have already been rejected on direct review.”). Therefore, § 2255 lacks an analog to § 2254(d).
  • 37. See Justin F. Marceau, Challenging the Habeas Process Rather Than the Result, 69 Wash & Lee L Rev 85, 115 (2012) (“This question of how to deal with silent or summary state court decisions is not of interest only to academics or academically oriented judges; the deference owed to silent state court judgments is of immense practical importance.”).