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

Stanford Law Review

Volumn 64, Issue 2, 2012, Pages 469-506

  Seligman, Matthew ^a  

^a STANFORD LAW SCHOOL   (United States)

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[No Author keywords available]

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EID: 84857959998     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (287)

1. Pub. L. No. 104-132, 110 Stat. 1214 (codified as amended in scattered sections of the U.S. Code).
2. See Kenneth Williams, The Antiterrorism and Effective Death Penalty Act: What's Wrong with It and How to Fix It, 33 CONN. L. REV. 919, 923 (2001) (outlining the dramatic changes to federal habeas brought about by AEDPA)
3. see also Larry W. Yackle, A Primer on the New Habeas Corpus Statute, 44 BUFF. L. REV. 381 (1996) (providing an overview of the new "basic framework" implemented by AEDPA).
4. See generally 2 RANDY HERTZ & JAMES S. LIEBMAN, FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE 941-1007 (4th ed. 2001) (providing an overview of federal habeas corpus, including the state of the law prior to AEDPA's enactment).
5. See, e.g., Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (harmless error)
6. Teague v. Lane, 489 U.S. 288 (1989) (new rules not applied retroactively)
7. Wainwright v. Sykes, 433 U.S. 72, 84-87 (1977) (procedural default).
8. See Cuyler v. Sullivan, 446 U.S. 335, 341 (1980).
9. See Brown v. Allen, 344 U.S. 443, 459 (1953)
10. see also Miller v. Fenton, 474 U.S. 104, 112 (1985)
11. Cuyler, 446 U.S. at 341 (holding that under the pre-AEDPA version of § 2254, state court determinations of law were to be reviewed de novo, in contrast to questions of fact).
12. 28 U.S.C. § 2254(d) (2006)
13. see Williams v. Taylor, 529 U.S. 362, 405 (2000).
14. 529 U.S. at 404-05, 407-11
15. see 28 U.S.C. § 2254(d)(1).
16. See Williams, supra note 2, at 926-28.
17. See generally Robert M. Cover & T. Alexander Aleinikoff, Dialectical Federalism: Habeas Corpus and the Court, 86 YALE L.J. 1035 (1977).
18. See infra Appendix.
19. Compare DiBenedetto v. Hall, 272 F.3d 1, 6-7 (1st Cir. 2001) (de novo review)
20. and Hameen v. Delaware, 212 F.3d 226, 247 (3d Cir. 2000) (same)
21. with Bell v. Jarvis, 236 F.3d 149 (4th Cir. 2000) (en banc) (highly deferential review). More recently, the circuit courts have moved toward more deferential review.
22. See infra notes 65-68 and accompanying text.
23. 131 S. Ct. 770 (2011).
24. 578 F.3d 944 (9th Cir. 2009) (en banc).
25. Id. at 969.
26. See id. at 951 n.5.
27. Joint Appendix at 129
28. Harrington, 131 S. Ct. 770 (No. 09-587), 2010 WL 1902992.
29. Richter v. Hickman, No. S-01-CV-0643-JKS, 2006 WL 769199 (E.D. Cal. Mar. 24, 2006).
30. Richter v. Hickman, 521 F.3d 1222 (9th Cir. 2008).
31. Id. at 1229
32. Hickman, 2006 WL 769199, at *6.
33. See Hickman, 521 F.3d at 1230-34
34. Hickman, 2006 WL 769199, at *6-10.
35. Richter v. Hickman, 578 F.3d 944, 969 (9th Cir. 2009) (en banc) (Bybee, J., dissenting).
36. Id. at 951 n.5 (majority opinion).
37. See Petition for Writ of Certiorari at 12
38. Harrington v. Richter, 130 S. Ct. 1506 (2010) (No. 09-587), 2009 WL 3841844.
39. Harrington v. Richter, 130 S. Ct. 1506. That the Supreme Court added this question presented sua sponte indicates the importance of the issue to the judicial administration of federal habeas corpus.
40. Harrington v. Richter, 131 S. Ct. 770, 780 (2011) ("[C]onfidence in the writ and the law it vindicates [is] undermined, if there is judicial disregard for the sound and established principles that inform its proper issuance. That judicial disregard is inherent in the opinion of the Court of Appeals for the Ninth Circuit here under review."). The case was decided 8-0, with Justice Kagan recused. Justice Ginsburg concurred in the judgment, agreeing with the Ninth Circuit that Richter's counsel performed deficiently, but agreeing with the Court that there was no prejudice.
41. Id. at 793 (Ginsburg, J., concurring in the judgment). Her short concurrence did not address the issue of AEDPA's application to summary dispositions.
42. Id. at 785 (majority opinion).
43. Id. at 784.
44. Id. (emphasis added).
45. Id. at 784-85 (emphasis added).
46. See id. at 784
47. see also Wright v. Sec'y for the Dep't of Corr., 278 F.3d 1245, 1255 (11th Cir. 2002)
48. Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999).
49. See Aycox, 196 F.3d at 1178 n.3.
50. 28 U.S.C. § 2254(d)(1) (2006).
51. See, e.g., Brittany Glidden, When the State is Silent: An Analysis of AEDPA's Adjudication Requirement, 27 N.Y.U. REV. L. & SOC. CHANGE 177, 182 (2002)
52. Robert D. Sloane, AEDPA's "Adjudication on the Merits" Requirement: Collateral Review, Federalism, and Comity, 78 ST. JOHN'S L. REV. 615, 618 (2004)
53. Adam N. Steinman, Reconceptualizing Federal Habeas Corpus for State Prisoners: How Should AEDPA's Standard of Review Operate After Williams v. Taylor?, 2001 WIS. L. REV. 1493, 1495
54. see also John H. Blume, AEDPA: The "Hype" and the "Bite," 91 CORNELL L. REV. 259, 293-94 (2006).
55. But see Scott Dodson, Habeas Review of Perfunctory State Court Decisions on the Merits, 29 AM. J. CRIM. L. 223 (2002) (arguing on textual and policy grounds that AEDPA deference applies to summary dispositions).
56. See Claudia Wilner, Note, "We Would Not Defer to That Which Did Not Exist": AEDPA Meets the Silent State Court Opinion, 77 N.Y.U. L. REV. 1442, 1444 (2002).
57. See, e.g., 142 CONG. REC. S3367-68 (daily ed. Apr. 16, 1996) (statement of Sen. Nickles).
58. See id. at S3472 (daily ed. Apr. 17, 1996) (statement of Sen. Specter).
59. 28 U.S.C. § 2254(d).
60. See Sellan v. Kuhlman, 261 F.3d 303 (2d Cir. 2001).
61. See Williams v. Taylor, 529 U.S. 362, 405 (2000).
62. Id. at 405-13. Justice O'Connor delivered the opinion of the Court with respect to the proper interpretation of § 2254(d)'s standard of review.
63. Id. at 412-13. Justice Stevens delivered the opinion of the Court with respect to the substantive ineffective assistance of counsel claim.
64. Id. at 390-99. He also offered an opinion with respect to the standard of review, stating he would have retained a less deferential standard.
65. Id. at 377 (opinion of Stevens, J.).
66. See id. at 405-13 (majority opinion).
67. Id. at 405-06, 412-13
68. see also Bell v. Cone, 535 U.S. 685, 694 (2002).
69. 529 U.S. at 409-11, 413
70. see also Wiggins v. Smith, 539 U.S. 510, 520 (2003).
71. 529 U.S. at 410. In rejecting the Fourth and Fifth Circuits' "subjective" approach, which focused on whether the state court decision was one which "reasonable jurists would all agree is unreasonable,"
72. id. at 409-10, the Court simply stated that the correct approach is to evaluate whether the state court opinion is "objectively unreasonable,"
73. id. at 409.
74. Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
75. See infra Appendix.
76. Harrington v. Richter, 131 S. Ct. 770, 784 (2011) (citing Chadwick v. Janecka, 312 F.3d 597, 605-06 (3d Cir. 2002)
77. Wright v. Sec'y for the Dep't of Corr., 278 F.3d 1245, 1253-54 (11th Cir. 2002)
78. Sellan v. Kuhlman, 261 F.3d 303, 311-12 (2d Cir. 2001)
79. Bell v. Jarvis, 236 F.3d 149, 161-62 (4th Cir. 2000) (en banc)
80. Harris v. Stovall, 212 F.3d 940, 943 n.1 (6th Cir. 2000)
81. Aycox v. Lytle, 196 F.3d 1174, 1177-78 (10th Cir. 1999)
82. James v. Bowersox, 187 F.3d 866, 869 (8th Cir. 1999)).
83. See, e.g., Washington v. Schriver, 255 F.3d 45, 62 (2d Cir. 2001) (Calabresi, J., concurring).
84. See supra note 36.
85. 255 F.3d at 52-55.
86. Id. at 53-54 (citing Williams v. Taylor, 529 U.S. 362, 406 (2000) (O'Connor, J.)
87. Williams, 529 U.S. at 394 (Stevens, J.)).
88. Id. at 54
89. see also Hameen v. Delaware, 212 F.3d 226, 248 (3d Cir. 2000).
90. See Schriver, 255 F.3d at 54
91. see also Aycox v. Lytle, 196 F.3d 1174, 1178 n.3 (10th Cir. 1999).
92. 255 F.3d at 62 (Calabresi, J., concurring).
93. Id. (invoking the "highly undesirable [outcome] of having federal courts reviewing State court decisions on habeas frequently declare such decisions to be not just mistaken but also unreasonable
94. But see infra text accompanying note 138.
95. Interview with Michael McConnell, Professor, Stanford Law Sch., in Stanford, Cal. (Mar. 27, 2010) (indicating that based on his experience as a federal appellate judge, McConnell worried that state court judges would use summary disposition not just as a labor- saving device, but as a mechanism to make a grant of federal habeas relief less likely).
96. See Williams v. Taylor, 529 U.S. 362, 412 (2000).
97. See 142 CONG. REC. S3458 (daily ed. Apr. 17, 1996) (statement of Sen. Kennedy) (characterizing AEDPA as providing "one bite at the apple," but arguing that one bite is not sufficient to protect state prisoners' rights)
98. id. at S3376 (daily ed. Apr. 16, 1996) (statement of Sen. Gorton) (explaining that the standard of review in § 2254(d) acts "not to deny a right of appeal, but in effect-except under extraordinary circumstances-to give only a single bite at the apple through the Federal court system")
99. 141 CONG. REC. S7826 (daily ed. June 7, 1995) (statement of Sen. Hatch) ("We have provided for protection of Federal habeas corpus, but we do it one time and that is it. ")
100. see also Holland v. Florida, 130 S. Ct. 2549, 2565 (2010) (finding AEDPA one-year filing period subject to equitable tolling, in part to retain a "single opportunity for federal habeas review of the lawfulness of [a prisoner's] imprisonment and. death sentence
101. The Ninth Circuit, of course, was the exception to this emerging consensus. The Hickman court stated in a footnote that it "need not determine whether or when an unreasoned state court decision warrants AEDPA deference" because it "would grant the writ whether [it] reviewed the state court's decision de novo or for objective unreasonableness." Richter v. Hickman, 578 F.3d 944, 951 n.5 (9th Cir. 2009) (en banc). This footnote may have stoked the Supreme Court's interest in the problem of summary dispositions in the case, particularly in light of prior Ninth Circuit statements on the issue.
102. See, e.g., Washington v. Schriver, 255 F.3d 45, 52-55 (2d Cir. 2001) (reserving the question of whether a summary disposition is an adjudication on the merits)
103. Hameen v. Delaware, 212 F.3d 226, 248 (3d Cir. 2000)
104. Delgado v. Lewis, 168 F.3d 1148, 1152 (9th Cir. 1999) ("[A] 'postcard denial[]' does not warrant the deference we might usually apply.
105. See RICHARD H. FALLON ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 1262 (6th ed. 2009).
106. But see Hickman, 578 F.3d at 951 n.5.
107. See, e.g., Clements v. Clarke, 592 F.3d 45, 55-56 (1st Cir. 2010) ("It is the result to which we owe deference, not the opinion expounding it.")
108. Irick v. Bell, 565 F.3d 315, 320 (6th Cir. 2009) ("[W]e must 'focus on the result of the state court's decision, applying' AEDPA deference to the result reached, not the reasoning used." (quoting Harris v. Stovall, 212 F.3d 940, 943 n.1 (6th Cir. 2000)))
109. Brown v. Luebbers, 371 F.3d 458, 462 (8th Cir. 2004) (en banc) ("[T]he 'summary nature' of the [state court's] discussion of the federal constitutional question does not preclude application of the AEDPA standard.")
110. Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir. 2003) ("Because a federal habeas court only reviews the reasonableness of the state court's ultimate decision, the AEDPA inquiry is not altered when, as in this case, state habeas relief is denied without an opinion.")
111. Chadwick v. Janecka, 312 F.3d 597, 605-06 (3d Cir. 2002)
112. Fullwood v. Lee, 290 F.3d 663, 677 (4th Cir. 2002) ("When the state court decision being reviewed by a federal habeas court fails to provide any rationale for its decision, we still apply the deferential standard of review mandated by Congress [in AEDPA]. ")
113. Wright v. Sec'y for the Dep't of Corr., 278 F.3d 1245, 1255 (11th Cir. 2002) ("The statutory language focuses on the result, not on the reasoning that led to the result, and nothing in that language requires the state court adjudication that has resulted in a decision to be accompanied by [a written] opinion. ")
114. Cruz v. Miller, 255 F.3d 77, 86 (2d Cir. 2001) ("Several circuits have noted that, in making the 'reasonable application' determination, they would look to the result of a state court's consideration of a criminal defendant's claim." (emphasis added))
115. Hough v. Anderson, 272 F.3d 878, 897 n.7 (7th Cir. 2001) ("Under AEDPA, it is a state court's resolution of an issue, as opposed to its reasoning process, that must be treated with deference.")
116. Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999) ("[W]e owe deference to the state court's result, even if its reasoning is not expressly stated.
117. Sellan v. Kuhlman, 261 F.3d 303, 314 (2d Cir. 2001)
118. see also Neal v. Puckett, 239 F.3d 683, 686-87 (5th Cir. 2001)
119. Bell v. Jarvis, 236 F.3d 149, 163 (4th Cir. 2000) (en banc)
120. Harris, 212 F.3d at 943
121. James v. Bowersox, 187 F.3d 866, 869 (8th Cir. 1999)
122. Delgado, 181 F.3d at 1093
123. Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir. 1997).
124. See JOHN CHIPMAN GRAY, THE NATURE AND SOURCES OF THE LAW 261 (2d ed. 1921)
125. Note, Decisions Without Opinions, 34 HARV. L. REV. 314, 315 (1921) (referring to "an opinion as distinguished from the actual decision
126. 28 U.S.C. § 2254(d) (2006).
127. See, e.g., Wright, 278 F.3d at 1255.
128. 28 U.S.C. § 2254(d)
129. see Puckett, 239 F.3d at 696 ("It seems clear to us that a federal habeas court is authorized by Section 2254(d) to review only a state court's 'decision,' and not the written opinion explaining that decision.
130. Sellan, 261 F.3d at 311 (citing Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001)).
131. See Rompilla v. Beard, 545 U.S. 374 (2005) (deciding the prejudice prong of a Strickland claim de novo, after the state court had rejected the claim by finding counsel's performance to be constitutionally sufficient).
132. See 28 U.S.C. § 2254(b)-(c) (listing elements of the federal habeas statute predating AEDPA and requiring a prisoner to exhaust all possible state remedies prior to filing his petition in federal court)
133. see also 2 HERTZ & LIEBMAN, supra note 3, at 941-1007.
134. See 2 HERTZ & LIEBMAN, supra note 3, at 941.
135. Wainwright v. Sykes, 433 U.S. 72, 81 (1977). Procedural default may be overcome by showing cause and prejudice.
136. Id. at 84-85. Since procedural default is often the result of actions taken by the prisoner's attorney, the most promising avenue of showing cause and prejudice is to show ineffective assistance of counsel. As a result, a petition that must overcome procedural default under Wainwright often includes a nested claim under Strickland. Such errors can take place at trial (for example, the failure to make a timely objection), or in the process of appeal (for example, the failure to abide by state appellate procedure).
137. See 2 HERTZ & LIEBMAN, supra note 3, at 1133 n.2.
138. See Teague v. Lane, 489 U.S. 288 (1989). There are two exceptions to the "new rule" bar in Teague: (1) when the primary conduct underlying the conviction is protected by the Constitution, or (2) when the new rule attains "watershed" status by resting on principles "implicit in the concept of ordered liberty."
139. See id. at 307, 311 (plurality opinion). The first exception would allow a federal court to provide relief when the substantive state criminal law prohibited constitutionally protected conduct.
140. For example, if Roe v. Wade, 410 U.S. 113 (1973)
141. or Lawrence v. Texas, 539 U.S. 558 (2003), were brought to federal court as habeas petitions after a criminal conviction, under Teague's first exception the federal court could grant relief. The second exception would allow a federal court to grant habeas relief in a case like Gideon v. Wainwright, 372 U.S. 335 (1963).
142. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (holding that a prisoner may not be granted relief for a trial error unless the constitutional violation had a "substantial and injurious effect or influence in determining the jury's verdict" (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946))). The harmless error doctrine applies only to those trial errors that might be corrected by jury instructions, such as the admission of evidence in violation of a constitutional right. It does not apply to "structural defects" like the absence of counsel that implicate the fundamental fairness of the criminal proceeding.
143. See Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991).
144. 433 U.S. 72.
145. See Harrington v. Richter, 131 S. Ct. 770, 787 (2011) ("If the state court rejects the claim on procedural grounds, the claim is barred in federal court unless one of the exceptions to the doctrine of Wainwright v. Sykes applies. And if the state court denies the claim on the merits, the claim is barred in federal court unless one of the exceptions to § 2254(d) set out in §§ 2254(d)(1) and (2) applies." (citation omitted)).
146. See, e.g., Wright v. Sec'y for the Dep't of Corr., 278 F.3d 1245, 1255 (11th Cir. 2002) ("Telling state courts when and how to write opinions to accompany their decisions is no way to promote comity.")
147. Bell v. Jarvis, 236 F.3d 149, 158 (4th Cir. 2000) (en banc) ("[The] state court did not articulate the rationale underlying its rejection of [a federal] claim. However, we may not 'presume that [the] summary order is indicative of a cursory or haphazard review of [the] petitioner's claims.'" (third and fourth alteration in original)
148. Quoting Wright v. Angelone, 151 F.3d 151, 157 (4th Cir. 1998))).
149. Coleman v. Thompson, 501 U.S. 722, 739 (1991).
150. See Rashad v. Walsh, 300 F.3d 27, 45 (1st Cir. 2002) ("It is not our function, however, to grade a state court opinion as if it were a law school examination. Rather, we review the state court's ultimate findings and conclusions to ascertain whether they constitute an unreasonable application of clearly established Supreme Court precedent.")
151. Wright, 278 F.3d at 1255 ("Requiring state courts to put forward rationales for their decisions so that federal courts can examine their thinking smacks of a 'grading papers' approach that is outmoded in the post-AEDPA era.")
152. Cruz v. Miller, 255 F.3d 77, 86 (2d Cir. 2001) ("[W]e are determining the reasonableness of the state courts' 'decision,' not grading their papers." (citation omitted) (quoting 28 U.S.C. § 2254(d)(1) (2006))
153. Hennon v. Cooper, 109 F.3d 330, 334-35 (7th Cir. 1997) (stating that focusing on "the quality of the reasoning process articu lated by the state court" would "place the federal court in just the kind of tutelary relation to the state courts that [AEDPA was] designed to end
154. Recall that the Supreme Court's test in Harrington has a high presumption in favor of a summary disposition being 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 statelaw procedural principles to the contrary." Harrington, 131 S. Ct. at 784-85.
155. Sellan, the Second Circuit adopted the Fifth Circuit's test in Mercadel v. Cain, 179 F.3d 271 (5th Cir. 1999).
156. Sellan v. Kuhlman, 261 F.3d 303, 314 (2d Cir. 2001). Under this test, a federal habeas court determines whether a federal claim has been adjudicated on the merits by considering: (1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state court's opinion suggests reliance upon procedural grounds rather than a determination on the merits.
157. Quoting Mercadel, 179 F.3d at 274). While the third factor would seem to drop out when applied to summary dispositions, the Second Circuit applied this test to the facts of Sellan by mentioning that the summary disposition used the word "denied."
158. Some states signal whether a summary disposition is on the merits by use of a particular word.
159. See, e.g., Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997) (en banc) ("In our writ jurisprudence, a 'denial' signifies that we addressed and rejected the merits of a particular claim while a 'dismissal' means that we declined to consider the claim for reasons unrelated to the claim's merits.
160. See 142 CONG. REC. S3458 (daily ed. Apr. 17, 1996) (statement of Sen. Kennedy).
161. Harrington v. Richter, 130 S. Ct. 1506-07 (2010) (emphasis added)
162. see also Harrington, 131 S. Ct. at 785 (answering only the question presented).
163. Richter v. Hickman, 578 F.3d 944, 951 (9th Cir. 2009) (en banc)
164. Citing Plascencia v. Alameida, 467 F.3d 1190, 1198 (9th Cir. 2006)).
165. The "look through" methodology derives from Ylst v. Nunnemaker, 501 U.S. 797 (1991), which held that the plain statement rule does not apply to summary dispositions. Under the plain statement rule, a federal habeas court presumes that a state court reached the merits of the federal question absent an explicit statement to the contrary.
166. See id. at 802-04. The Court in Ylst established the exception that a federal court reviewing a state court summary disposition should "look through" that summary disposition to the last reasoned state court decision in determining whether the state decision was on the merits or on state procedural grounds.
167. Id. at 804.
168. See Harrington, 131 S. Ct. at 783.
169. Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1127 (9th Cir. 2006), overruled on other grounds by Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc).
170. See, e.g., Bell v. Jarvis, 236 F.3d 149, 158 (4th Cir. 2000) (en banc)
171. Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999).
172. See Batson v. Kentucky, 476 U.S. 79 (1986).
173. See Snyder v. Louisiana, 552 U.S. 472 (2008)
174. Miller-El v. Dretke, 545 U.S. 231 (2005).
175. 466 U.S. 668 (1984).
176. 373 U.S. 83 (1963).
177. See infra Appendix.
178. See, e.g., ALA. R. CRIM. PROC. 32.7(d) (permitting a summary disposition prior to an evidentiary hearing, but requiring that if the court proceeds with an evidentiary hearing it must make specific findings of fact as to each material issue)
179. ARIZ. REV. STAT. ANN. § 13- 4236(c) (2011) ("If after identifying all precluded claims the court determines that no material issue of fact or law exists which would entitle the defendant to relief under this article and that no purpose would be served by any further proceedings, the court shall order the petition dismissed. If the court does not order the petition dismissed, the court shall set a hearing within thirty days on those claims that present a material issue of fact or law." (emphasis added))
180. LA. CODE CRIM. PROC. ANN. art. 929 (2011) (permitting a summary disposition only prior to an evidentiary hearing, on the basis of the application, answer, trial transcript, and other documents)
181. W. VA. R. GOVERNING POST-CONVICTION HABEAS CORPUS P. 4(c)-(d), 7-9 (permitting either summary dismissal prior to an evidentiary hearing, or else introduction of further evidence and a "comprehensive order" including findings of fact and conclusions of law).
182. See CAL. R. CT. 8.385(d); id. advisory committee cmt. (clarifying that the court may issue an order to show cause or "deny[] the petition summarily," among other things). In California, as in the states whose procedures are cited above in note 98, a petition encounters a procedural forking path: the petition can be denied by summary disposition, or the court can proceed to provide the opportunity to introduce new evidence (in California, by issuing an order to show cause).
183. See People v. Romero (In re Romero), 883 P.2d 388, 393 (Cal. 1995) ("The issuance of either the writ of habeas corpus or the order to show cause creates a 'cause,' thereby triggering the state constitutional requirement that the cause be resolved 'in writing with reasons stated.' Thus, the writ or order is the means by which issues are joined (through the return and traverse) and the need for an evidentiary hearing determined." (citations omitted)
184. Quoting CAL. CONST. art. VI, § 14)).
185. See infra Appendix.
186. 577 F.3d 1284, 1292 (10th Cir. 2009) (en banc)
187. see also Winston v. Kelly, 592 F.3d 535, 555-56 (4th Cir.) ("If the record ultimately proves to be incomplete, deference to the state court's judgment would be inappropriate because judgment on a materially incomplete record is not an adjudication on the merits for purposes of § 2254(d).")
188. cert. denied, 131 S. Ct. 127 (2010)
189. Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004) (stating that § 2254(d)(2) "applies most readily to situations where petitioner challenges the state court's findings based entirely on the state record")
190. Jordan Steiker, Restructuring Post-Conviction Review of Federal Constitutional Claims Raised by State Prisoners: Confronting the New Face of Excessive Proceduralism, 1998 U. CHI. LEGAL F. 315, 322-23 (proposing that habeas claims based on evidence outside the state record be reviewed by district courts, while claims based on only the state record be reviewed by circuit courts)
191. Rachel E. Wheeler, Note, AEDPA Deference and the Undeveloped State Factual Record: Monroe v. Angelone and New Evidence, 46 WM. & MARY L. REV. 1887, 1890 (2005) (arguing on fairness grounds that "evidence available to, but not actually considered by, state courts should be treated in the same manner as evidence revealed for the first time in federal court, without deference to the state court
192. But see Atkins v. Clarke, 642 F.3d 47, 49 (1st Cir. 2011)
193. Relying on Cullen v. Pinholster, 131 S. Ct. 1388 (2011), to find that a state court decision is still an adjudication on the merits even if the state court did not hear the new evidence that the petitioner now seeks to present).
194. In Holland v. Jackson, the Supreme Court acknowledged that "[w]here new evidence is admitted, some Courts of Appeals have conducted de novo review on the theory that there is no relevant state-court determination to which one could defer [under § 2254(d)]." 542 U.S. 649, 653 (2004) (per curiam).
195. In 2008, the Supreme Court granted certiorari to resolve whether the Fourth Circuit erred when "it applied the deferential standard of 28 U.S.C. § 2254(d), which is reserved for claims 'adjudicated on the merits' in state court, to evaluate a claim predicated on evidence of prejudice the state court refused to consider and that was properly received for the first time in a federal evidentiary hearing." Petition for a Writ of Certiorari at i, Bell v. Kelly, 553 U.S. 1031 (2008) (No. 07-1223), 2008 WL 819276.
196. However, the writ was subsequently dismissed as improvidently granted. 555 U.S. 55 (2008). Last Term, in Cullen v. Pinholster, Justice Sotomayor raised this possibility in her dissent. 131 S. Ct. at 1417 (Sotomayor, J., dissenting). The majority reserved the question without deciding it.
197. See id. at 1401 n.10, 1402 n.11 (majority opinion). As a result, the law is still unsettled on this point. Pinholster did definitively settle that federal courts may not consider evidence first presented in federal court in determining whether a state court's decision was unreasonable.
198. Id. at 1400.
199. 577 F.3d at 1287.
200. See id. at 1288.
201. See, e.g., Rompilla v. Beard, 545 U.S. 374, 390 (2005).
202. See OKLA. R. CT. CRIM. APP. 3.11(B)(3)(b).
203. Dewberry v. State, 954 P.2d 774, 776 (Okla. Crim. App. 1998) (quoting OKLA R. CT. CRIM. APP. 3.11(B)(3)(b)).
204. Wilson v. State, 983 P.2d 448, 472 & n.8 (Okla. Crim. App. 1998).
205. Workman, 577 F.3d at 1300.
206. Id. at 1291.
207. Generally, a prisoner bringing a habeas petition in federal court may not raise claims that were not fairly presented in state court. 28 U.S.C. § 2254(b)-(c) (2006). However, this likely would not bar the presentation of the "new" claim in Workman, because the denial of an evidentiary hearing presumably falls under the exception for "circumstances. that render [the state remedial] process ineffective to protect the rights of the applicant." § 2254(b)(1)(B)(ii).
208. See 142 CONG. REC. S3446 (daily ed. Apr. 17, 1996) (statement of Sen. Hatch) ("Federal habeas review does not take place until well after conviction and numerous rounds of direct and collateral review.")
209. id. at S3447 ("Our proposed standard simply ends the improper review of State court decisions. After all, State courts are required to uphold the Constitution and to faithfully apply Federal laws. There is simply no reason that Federal courts should have the ability to virtually retry cases that have been properly adjudicated by our State courts.
210. See 28 U.S.C. § 2254(e)(2)
211. see also Williams v. Taylor, 529 U.S. 420, 437 (2000) (holding a prisoner preserved a claim he had raised in state court which was now buttressed by new evidence never presented in state court).
212. See supra text accompanying note 73.
213. 28 U.S.C. § 2254(d)(1).
214. Williams, 529 U.S. at 405-06.
215. See, e.g., Sellan v. Kuhlman, 261 F.3d 303, 314 n.6 (2d Cir. 2001).
216. See, e.g., Williams, 529 U.S. at 391 (finding that "[t]he Virginia Supreme Court erred in holding that our decision in Lockhart v. Fretwell modified or in some way supplanted the rule set down in Strickland" (citation omitted)).
217. See id. at 405-06.
218. 131 S. Ct. 1388, 1400 (2011).
219. 28 U.S.C. § 2254(d)(1) (2006).
220. Williams, 529 U.S. at 409.
221. Id. at 411.
222. See, e.g., Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) ("Some increment of incorrectness beyond error is required. [T]he increment need not be great; otherwise, habeas relief would be limited to state court decisions 'so far off the mark as to suggest judicial incompetence.'"
223. Quoting Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 889 (3d Cir. 1999) (en banc))).
224. See Wilner, supra note 37.
225. Id. at 1473.
226. Id. at 1472 (citing Delgado v. Lewis, 181 F.3d 1087, 1091 (9th Cir. 1999) ("Unfortunately, when a state court does not articulate the rationale for its determination, a review of that court's 'application' of clearly established federal law is not possible.")).
227. Id. at 1473-74.
228. See 142 CONG. REC. S3472 (daily ed. Apr. 17, 1996) (statement of Sen. Specter) ("[U]nder the bill deference will be owed to State courts' decisions on the application of Federal law to the facts. Unless it is unreasonable, a State court's decision applying the law to the facts will be upheld.")
229. CONG. REC. S7597 (daily ed. May 26, 1995) (statement of Sen. Hatch) ("[W]e allow a Federal court to overturn a State court decision only if it is contrary to clearly established Federal law or if it involves an 'unreasonable application' of clearly established Federal law to the facts.
230. Lockyer v. Andrade, 538 U.S. 63, 76 (2003)
231. Citing Williams v. Taylor, 529 U.S. 362, 407 (2000)).
232. Wiggins v. Smith, 539 U.S. 510, 520 (2003)
233. Quoting Williams, 529 U.S. at 413 (emphasis added))
234. Citing Bell v. Cone, 535 U.S. 685, 694 (2002)).
235. See Rompilla v. Beard, 545 U.S. 374, 383 (2005) (holding that the state court was unreasonable in failing to find that such a failure to investigate violated Strickland's performance prong).
236. See Kyles v. Whitley, 514 U.S. 419 (1995).
237. Cf. Wright v. Sec'y for the Dep't of Corr., 278 F.3d 1245, 1254 (11th Cir. 2002) (stating that the court "would not defer to that which did not exist," referring to nonexistent adjudications on the merits when a federal issue had not been raised in state court).
238. Interview with Justice Carlos Moreno, Assoc. Justice, Supreme Court of Cal., in Stanford, Cal. (Apr. 12, 2010). It is not known whether the courts of appeal in California, or criminal courts in other states, are similarly diligent.
239. There may be subcategories of record-based claims that a federal court can be certain were not decided by the state court using a reasonable deliberative process, and so may be reviewed de novo just as I argue extra-record claims may be. Nothing in the argument above precludes this possibility.
240. In some states, a judge might consider extra-record evidence in issuing a summary disposition, including any proffer made by the prisoner attached to his petition.
241. See E-mail from J. Bradley O'Connell, Assistant Dir., First Dist. Appellate Project, to author (July 29, 2010, 3:38 PM) (on file with author). But that is equally true of the extra-record evidence the state court failed to admit into evidence in Workman.
242. See supra Part II.B. And in Harrington itself, the state court did not permit the defendant's trial counsel to testify at an evidentiary hearing, which of necessity limited the extra-record evidence it considered even if Richter attached exhibits to his petition.
243. See Amicus Curiae Brief of National Ass'n of Criminal Defense Lawyers in Support of Respondent at 32-33
244. Harrington v. Richter, 131 S. Ct. 770 (2011) (No. 09-587), 2010 WL 2811206.
245. In Cullen v. Pinholster, the Supreme Court explained its understanding that "[u]nder California law, the California Supreme Court's summary denial of a habeas petition on the merits reflects that court's determination that 'the claims made in th[e] petition do not state a prima facie case entitling the petitioner to relief.'" 131 S. Ct. 1388, 1402 n.12 (2011) (second alteration in original)
246. Quoting In re Clark, 855 P.2d 729, 741-42 (Cal. 1993)). The Court also explained that "[i]t appears that the court generally assumes the allegations in the petition to be true, but does not accept wholly conclusory allegations."
247. Citing People v. Duvall, 886 P.2d 1252, 1258 (Cal. 1995)). Even if the state court is required to accept the prisoner's pleadings as true in determining whether to hold the evidentiary hearing, as in California, it has still failed to consider the evidence that would be adduced in that hearing by denying the petition summarily prior to holding one.
248. Williams v. Taylor, 529 U.S. 362, 416 (2000) (O'Connor, J., concurring in part and concurring in the judgment) (second omission in original) (citation omitted).
249. See supra Part II.B.
250. See Victor E. Flango & Patricia McKenna, Federal Habeas Corpus Review of State Court Convictions, 31 CAL. W. L. REV. 237, 262 (1995) (reporting that, in a study of state courts in Alabama, California, New York, and Texas, "about seventy-five percent of [habeas] petitions were dismissed or denied summarily without a reason")
251. see also COURT STATISTICS PROJECT, NAT'L CTR. FOR STATE COURTS, STATE COURT CASELOAD STATISTICS: AN ANALYSIS OF 2007 STATE COURT CASELOADS tbl.16 (2009) (describing opinions reported by state appellate courts across the country).
252. California is of particular interest, both because it is the source of the summary disposition in Harrington, and because it incarcerates over ten percent of the national total of state inmates.
253. See PEW CTR. ON THE STATES, PRISON COUNT 2010, at 7 (2010), available at http://www.pewcenteronthestates.org/uploadedFiles/Prison_Count_2010.pdf (reporting that as of January 1, 2010, California incarcerated 169,413 inmates out of 1,404,053 state prisoners nationwide).
254. CAL. CONST. art. VI, § 14.
255. Excepting, again, those appeals that suffer from a fatal procedural defect.
256. See People v. Wende, 600 P.2d 1071 (Cal. 1979).
257. See Anders v. California, 386 U.S. 738 (1967).
258. Wende, 600 P.2d at 1073-74
259. see also Anders, 386 U.S. at 744.
260. People v. Kelly, 146 P.3d 547, 555 (Cal. 2006).
261. See, e.g., In re D.G., No. E053301, 2011 WL 4601049, at *1 (Cal. Ct. App. Oct. 6, 2011) (discussing the facts of the case in less than a page before summarily stating that "[p]ursuant to the mandate of People v. Kelly, we have independently reviewed the record for potential error and find no arguable issues" (citation omitted))
262. People v. Schueller, No. H035451, 2010 WL 2842275 (Cal. Ct. App. July 21, 2010) (citing People v. Kelly, but only in a cursory statement that there are no appealable issues)
263. In re Julio N., No. B219054, 2010 WL 2332897 (Cal. Ct. App. June 11, 2010) (same).
264. See generally J. Bradley O'Connell, The Uncharted World of Non-Capital State Habeas Corpus Practice, 1998 CAL. CRIM. DEF. PRAC. REP. 637, 644 (providing an overview of California habeas corpus).
265. See CAL. R. CT. 8.385(d)
266. People v. Romero, 883 P.2d 388, 394 (Cal. 1994).
267. Harris v. Superior Court, 500 F.2d 1124, 1125 (9th Cir. 1974)
268. see also La Rue v. McCarthy, 833 F.2d 140, 141 (9th Cir. 1987).
269. Brief of Texas et al. as Amici Curiae in Support of Petitioner, Harrington v. Richter, 131 S. Ct. 770 (2011) (No. 09-587), 2010 WL 2005329. With respect to the data in Table 2
270. see id. at 5-7.
271. OFFICE OF COURT ADMIN., COURT OF CRIMINAL APPEALS ACTIVITY: FY 2009 (2009), available at http://www.courts.state.tx.us/pubs/AR2009/cca/cca-activity-report- 2009.pdf (counting dispositions of applications for habeas corpus).
272. OFFICE OF COURT ADMIN., COURT OF CRIMINAL APPEALS ACTIVITY: FY 2008 (2008), available at http://www.courts.state.tx.us/pubs/AR2008/cca/cca-activity-report-2008.pdf (counting dispositions of applications for habeas corpus).
273. OFFICE OF COURT ADMIN., COURT OF CRIMINAL APPEALS: ACTIVITY FOR THE YEAR ENDED AUGUST 31, 1996 (1996), available at http://www.courts.state.tx.us/pubs/ar96/ccadoc96.pdf (counting dispositions of applications for habeas corpus).
274. ALA. ADMIN. OFFICE OF THE COURTS, ALA. UNIFIED JUDICIAL SYS., FY 2008 ANNUAL REPORT & STATISTICS 8 (2009), available at http://www.alacourt.gov/Annual%20Reports/2008AOCAnnualReport.pdf (counting dispositions of all cases).
275. See OFFICE OF THE ADMIN. DIR., ALASKA COURT SYS., ANNUAL STATISTICAL REPORT 2009, at 6 (2010), available at http://www.courts.alaska.gov/reports/annualrep-fy09.pdf (counting summary dispositions on the merits and dispositions by published opinions for all cases).
276. See id. at 14 (counting summary dispositions on the merits and dispositions by published opinions for all cases).
277. See CONN. JUDICIAL BRANCH, BIENNIAL CONNECTICUT JUDICIAL BRANCH REPORT AND STATISTICS 2006-2008, at 37 (2008), available at http://www.jud.ct.gov/Publications/ BiennialReport2006-08.pdf (counting dispositions of criminal cases).
278. See DIST. COURT OF APPEAL WORKLOAD & JURISDICTION ASSESSMENT COMM., REPORT AND RECOMMENDATIONS app. A at 12 (2006), available at http://www.floridasupremecourt.org/pub_info/documents/DCAWorkload/2006_DCAReport.pdf (reporting rate of per curiam affirmance).
279. See id. (reporting rate of per curiam affirmance).
280. See JUDICIARY, STATE OF HAW., 2009 ANNUAL REPORT STATISTICAL SUPPLEMENT tbl.1 (2009), available at http://www.courts.state.hi.us/docs/news_and_reports_docs/annual_reports/Jud_Statistical_Sup_2009.pdf (counting criminal appeals).
281. ADMIN. OFFICE OF THE ILL. COURTS, ANNUAL REPORT OF THE ILLINOIS COURTS: STATISTICAL SUMMARY 130 (2008), available at http://www.state.il.us/court/SupremeCourt/ AnnualReport/2008/StatsSumm/2008_Statistical_Summary.pdf (counting dispositions of criminal cases).
282. N.D. COURT SYS., 2009 ANNUAL REPORT 9 (2010), available at http://www.ndcourts.gov/_court/News/ndcourtsar2009.pdf (counting dispositions of criminal cases).
283. WIS. COURT SYS., COURT OF APPEALS ANNUAL REPORT 2009, at 3 (2010), available at http://www.wicourts.gov/ca/DisplayDocument.pdf?content=pdf&seqNo=47578 (counting all cases).
284. Only typically" because some states, including California, have mandatory state supreme court review in death penalty cases.
285. The data were collected via a request to Dag McLeod, Manager of the Office of Court Research for the Judicial Council of California, and are on file with the author.
286. See JUDICIAL COUNCIL OF CAL., 2009 COURT STATISTICS REPORT: STATEWIDE CASELOAD TRENDS 1998-1999 THROUGH 2007-2008, at ix (2009), available at http://www.courts.ca.gov/documents/csr2009.pdf (reporting that in fiscal year 2007-2008, the California courts of appeal disposed of 4907 of 16,098 appeals without written opinion and 9275 of 9906 original proceedings without written opinion).
287. The spike in total habeas petitions and summary dispositions in 2008 is unexplained. However, the ratio of written opinions to summary dispositions in that year does not differ significantly from other years. In 2007, the percentage of petitions decided by summary disposition was 97.71%; in 2008, it was 97.59%. Accordingly, the 2008 spike in the total number of petitions decided does not materially affect the percentages reported for the four-year period.