Opinion analysis: Federal habeas courts must defer to unexplained state summary dispositions

By John Elwood
on Jan 20, 2011 at 1:35 pm

On Wednesday, the Supreme Court issued its opinion in Harrington v. Richter (No. 09-587) reversing the Ninth Circuit’s grant of habeas relief to a state prisoner.  Justice Kennedy wrote the opinion for seven members of the Court, with Justice Ginsburg concurring in the judgment (Justice Kagan was recused).  The Court held that the Antiterrorism and Effective Death Penalty Act (“AEDPA”), which limits federal courts’ power to grant habeas relief on a claim when a state court has adjudicated it “on the merits,” requires deference to a state court’s summary denial of a prisoner’s claim.  Then, applying established standards of review for AEDPA and ineffective-assistance claims under Strickland v. Washington, the Court held that the Ninth Circuit erroneously granted habeas relief in this case.

A California jury convicted Joshua Richter of murdering Patrick Klein and attempting to murder Joshua Johnson during an apparent burglary.  Richter had argued unsuccessfully that Klein had been shot not by him but by Johnson.  The prosecution had not intended before trial to introduce forensic blood evidence, but after trial began and without notice to the defense, it introduced the testimony of two expert witnesses in an effort to refute Richter’s explanation of events.  Richter’s counsel, however, offered no expert blood testimony, nor did he retain experts to investigate the blood evidence; in response to the prosecution’s forensic blood experts, defense counsel countered only with cross-examination.

On state habeas, Richter introduced some forensic blood expert testimony that supported his theory of the shooting.  But the California Supreme Court denied Richter’s petition in an order that read, in its entirety, “[p]etition for writ of habeas corpus is DENIED.”  Richter then filed a federal habeas petition, arguing that his counsel had been ineffective under Strickland by failing to investigate the blood evidence or offer expert blood testimony.  An en banc panel of the Ninth Circuit agreed, assuming without deciding that AEDPA deference applied.

The Court began by addressing AEDPA’s applicability—a question on which the Court had requested briefing when it granted cert.  Section 2254(d) of title 28 requires deference where a state court adjudicated the habeas petitioner’s claim “on the merits.”  Although the California Supreme Court had offered no reasons for its denial, the Court held that that was of no moment: “§ 2254(d) does not require a state court to give reasons before its decision can be deemed to have been ‘adjudicated on the merits.’”  The Court relied principally on the fact that Section 2254(d) requires only a “decision” resulting from an “adjudication,” and there is “no text in the statute requiring a statement of reasons.”  The opinion rejected the claims of Richter and amicus California Attorneys for Criminal Justice that the California Supreme Court in practice specified when a denial of habeas relief was “on the merits,” and although that court issued five summary denials on the day of Richter’s case that were explicitly denominated “on the merits,” Justice Kennedy dismissed as “pure speculation” the idea that Richter’s petition had been denied on other grounds.

The Court stated “[w]hen 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.”  (Emphasis added.)  That presumption can be overcome where the habeas petitioner shows that “there is reason to think some other explanation for the state court’s decision is more likely.”  Thus, it appears that the Court will treat state courts’ summary disposition of cases as an adjudication on the merits of all claims raised unless the petitioner proves by a preponderance of the evidence that it was not.

Having decided that § 2254(d) applies, the Court then applied settled principles of AEDPA deference in the familiar context of Strickland ineffective-assistance claims.  Justice Kennedy emphasized that the AEDPA standard was “meant to be” “difficult to meet.”  The Ninth Circuit had erred by “explicitly conduct[ing] a de novo review” rather than determining whether the state court’s decision was unreasonable under then-current law.  The Court emphasized that the inquiry must look to counsel’s performance from the perspective of a reasonable attorney at the time of the trial, not afterward.  Richter’s attorney “was entitled to formulate a strategy that was reasonable at the time and to balance limited resources in accord with effective trial tactics and strategies.”  Moreover, “competent counsel” need not be a “flawless strategist or tactician” and “may not be faulted for a reasonable miscalculation or lack of foresight or for failing to prepare for what appear to be remote possibilities.”  Justice Kennedy explained that expert blood testimony may not have proved fruitful, and indeed could have been harmful.

Turning to the prejudice prong, the Court noted that “[t]he likelihood of a different result must be substantial, not just conceivable.”  In light of additional inculpatory evidence and questions left open by the forensic blood evidence Richter introduced on habeas, the Court held that the state court have reasonably concluded that Richter had not established prejudice.

Justice Ginsburg filed a one-paragraph concurrence in the judgment.  Although she agreed with the Ninth Circuit that Richter’s trial lawyer “was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,” the force of the prosecution’s case was “not significantly reduced” by Richter’s forensic blood evidence, and she did “not rank counsel’s lapse ‘so serious as to deprive [Richter] of a fair trial.’”

Although the Court granted plenary review in this case, it appears that, but for the novel threshold question of whether AEDPA deference applies to state courts’ summary decisions, this case was a likely candidate for summary reversal.  The Court relisted this case twice before granting, and Justice Kennedy’s opinion begins with unusually harsh criticism of the Ninth Circuit’s opinion, saying that its decision was “clear error” reflecting “judicial disregard for the sound and established principles that inform” the issuance of the writ of habeas corpus.

Douglas Geyser, an associate at Vinson & Elkins, co-wrote this piece.