On Wednesday, in White v. Woodall, the Court reversed a grant of habeas relief by the U.S. Court of Appeals for the Sixth Circuit. Woodall’s underlying claim concerned the state trial court’s refusal to accommodate his request for a “no-adverse-inference” instruction at the punishment phase of his capital trial; Woodall did not testify at the punishment phase, and he had sought an instruction that would have acknowledged his right not to testify and forbade jurors from holding his choice not to testify against him “in any way.” On appeal, the Kentucky Supreme Court affirmed. But when Woodall pursued the claim on federal habeas, both the federal district court and the Sixth Circuit concluded that the Kentucky Supreme Court’s denial of relief amounted to an unreasonable application of clearly established federal law, thus permitting relief under Section 2254(d)(1) of the Anti-Terrorism and Effective Death Penalty Act (AEDPA). Justice Scalia’s opinion for the majority is unusually harsh in its rejection of the Sixth Circuit’s decision, striking a tone more common to summary reversal opinions than merits decisions following briefing and argument. Justice Scalia chastises the Sixth Circuit for “disregard[ing] the limitations” embodied in AEDPA, laments that “some federal judges find [those limits] too confining,” and warns that “all federal judges must obey” them.
At the core of the case was whether a trio of decisions by the Court had foreclosed the state courts’ denial of the requested instruction. In Carter v. Kentucky, the Court had held that a criminal defendant is entitled to a “no-adverse-inference” instruction at the guilt-innocence phase of a non-capital trial; in Estelle v. Smith, it had held that Fifth Amendment privilege against self-incrimination applies to the punishment phase of a capital trial; and in Mitchell v. United States it had granted relief when the trial judge had drawn an adverse inference as to a contested fact based on the defendant’s silence at sentencing. From Woodall’s perspective, these cases firmly supported his entitlement to the requested instruction, and the Kentucky Supreme Court’s contrary conclusion was unreasonable. In the majority’s view, these decisions had not definitively answered whether an instruction was required in the precise circumstance of this case – in which Woodall acknowledged guilt of the underlying offense as well as the presence of statutory aggravating factors, and where the jury might consider his failure to testify as bearing on his lack of remorse. According to the majority, these lines of distinction for withholding the instruction were sufficiently plausible to preclude relief, because AEDPA mandates relief only where controlling Court precedents leave resolution of the issue “’beyond any possibility for fairminded disagreement.’” Accordingly, the majority did not venture its own opinion as to whether a “no-adverse-inference” instruction is required under the facts of this case; it held only that AEDPA forecloses relief because the Kentucky Supreme Court had not been “unreasonable” in concluding otherwise.
Had the majority stopped there, the opinion would have been equivalent to a summary reversal not only in tone but also in effect – a reminder of the Court’s readiness to overturn grants of federal habeas relief based on its robust view of the limitations contained in AEDPA. But the majority ventured further, arguing that Section 2254(d)(1) does not countenance relief when state courts unreasonably refuse to extend a governing legal principle to a context in which the principle should control. Although the Court previously had appeared to embrace this “unreasonable-refusal-to-extend” ground for relief under AEDPA , the majority insists that such a ground had never served as a holding in an AEDPA case. Moreover, the majority insists that such a theory for relief would be inconsistent with the deference embodied in AEDPA, because the necessity “to extend” a precedent by definition means that no clearly established law requires the result.
It is difficult to tell how much this new prohibition on “refusal to extend” grounds of relief will matter in practice. The majority acknowledges that Section 2254(d)(1)) cannot be read to permit relief only in cases of identical fact patterns. But the majority clearly wants to treat Court decisions on matters of constitutional criminal procedure more like “rules” that have clearly defined parameters of application and less like “principles” that require state courts to implement them wherever their logic extends. That difference is evident in the contrasting approaches in Woodall by the majority and the dissent. The majority views Carter, Smith, and Mitchell as a series of decision points that do not speak to the particulars of Woodall’s case. Justice Breyer’s dissent emphasizes that those opinions together offer no principled basis for withholding the requested instruction at the punishment phase of capital trials. Ultimately, Justice Breyer does not take issue with the new prohibition on “refusal to extend” grounds because he does not regard applying clearly established principles to a different context as an “extension” so much as an appropriate “application” of prevailing law.
In the end, it’s simply too soon to tell whether the majority’s innovation is extending or merely applying existing limits on the federal habeas forum.
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