In 1996, riding a wave of public opinion after the Oklahoma City bombing, Congress passed the Antiterrorism and Effective Death Penalty Act1×1. Pub. L. No. 104-132, 110 Stat. 1214 (1996) (codified as amended in scattered sections of the U.S. Code). (AEDPA).2×2. See Clinton Signs Anti-Terrorism Bill, CNN (Apr. 24, 1996, 4:00 PM), http://www.cnn.com/US/9604/24/anti-terrorism [https://perma.cc/BEU5-QF8U]; see also Stephen R. Reinhardt, Essay, 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, 1224 (2015) (“In 1996, inspired by the bombing of the federal building in Oklahoma City and the desire of President William Clinton, then seeking re-election, to be seen as a law-and-order candidate, an eager Congress passed AEDPA.”); Judith L. Ritter, The Voice of Reason — Why Recent Judicial Interpretations of the Antiterrorism and Effective Death Penalty Act’s Restrictions on Habeas Corpus Are Wrong, 37 Seattle U. L. Rev. 55, 73 (2013) (“Legislators predicted that [the Oklahoma City bomber] would be sentenced to death and the proposed legislation . . . addressed perceived delays and obstructions to the implementation of the death penalty.”); Bryan A. Stevenson, The Politics of Fear and Death: Successive Problems in Capital Federal Habeas Corpus Cases, 77 N.Y.U. L. Rev. 699, 701 (2002) (“[AEDPA] was drafted, enacted, and signed in an atmosphere of anger and fear.”). Among other things, AEDPA heightened the standard a federal habeas court must use when reviewing a state prisoner’s claim already “adjudicated on the merits in State court.”3×3. 28 U.S.C. § 2254(d) (2012). Instead of de novo review, the amended 28 U.S.C. § 2254(d) requires these claims to be dismissed unless the state adjudication “resulted in a decision that” either is “contrary to, or involved an unreasonable application of, clearly established Federal law” or is “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”4×4. Id. The Supreme Court has interpreted these provisions to require significant deference to even incorrect state court rulings.5×5. See, e.g., Williams v. Taylor, 529 U.S. 362, 412 (2000) (“[A]n unreasonable application of federal law is different from an incorrect or erroneous application of federal law.”).
Prior to AEDPA, the Court in Ylst v. Nunnemaker6×6. 501 U.S. 797 (1991). considered a case where state habeas courts had affirmed without opinion a state court’s direct-review denial of a petitioner’s claim on grounds of a state procedural default.7×7. Id. at 800. The Ylst Court held that federal courts should “look through the subsequent unexplained denials [of habeas] to [the direct-review] opinion”8×8. Id. at 806. and employ a presumption, rebuttable by “strong evidence” to the contrary,9×9. Id. at 804. “that a later decision rejecting the claim did not silently disregard that [procedural] bar and consider the merits.”10×10. Id. at 803. But after AEDPA, the Court in Harrington v. Richter11×11. 562 U.S. 86 (2011). considered a case where there was only a one-sentence summary order accompanying a state high court decision and no opinion below.12×12. See id. at 96. The Richter Court held that the unexplained state high court decision rejecting a petitioner’s claim was a decision on the merits for § 2254(d) purposes13×13. See id. at 98–100. and that a federal court must deny a petitioner’s appeal of that summary decision unless it had “determine[d] what arguments or theories supported or . . . could have supported the state court’s decision”14×14. Id. at 102. and found that “there was no reasonable basis for the state court to deny relief.”15×15. Id. at 98. Left unanswered was whether a Ylst-like presumption applied in § 2254(d) cases where there was a reasoned state lower court opinion below a summary denial.
Last Term, in Wilson v. Sellers,16×16. 138 S. Ct. 1188 (2018). the Supreme Court answered that question in the affirmative. Settling a circuit split,17×17. Compare Grueninger v. Director, 813 F.3d 517, 525 (4th Cir. 2016), Woodfox v. Cain, 772 F.3d 358, 369 (5th Cir. 2014), and Cannedy v. Adams, 706 F.3d 1148, 1159 (9th Cir. 2013) (“[W]e conclude that Richter does not change our practice of ‘looking through’ summary denials to the last reasoned decision . . . .”), with Wilson v. Warden, 834 F.3d 1227, 1232 (11th Cir. 2016) (en banc) (“[A] federal court is not required to ‘look through’ a summary decision of a state appellate court that is an adjudication on the merits to the reasoning in a lower court decision.”), rev’d sub nom. Wilson, 138 S. Ct. 1188. A number of other circuits had employed a look-through presumption before Richter was decided in 2011. See, e.g., Clements v. Clarke, 592 F.3d 45, 52 (1st Cir. 2010); Bond v. Beard, 539 F.3d 256, 289–90 (3d Cir. 2008); Mark v. Ault, 498 F.3d 775, 783 (8th Cir. 2007); Joseph v. Coyle, 469 F.3d 441, 450 (6th Cir. 2006). the Court sided with habeas petitioner Wilson, holding that federal courts reviewing state prisoners’ habeas claims under § 2254(d) should “look through” to the last reasoned state court decision and apply a rebuttable presumption that the unexplained affirmance “adopted the same reasoning.”18×18. Wilson, 138 S. Ct. at 1192. Justice Gorsuch asserted in dissent that Wilson adopted a watered-down presumption that effectively allows courts to apply Richter’s harsh practice of imagining any possible basis for denying relief. But the majority opinion in Wilson both explicitly and implicitly indicated that federal courts should continue to apply a strong presumption that the unexplained decision adopted the lower court’s reasoning. In doing so, Wilson likely restricted Richter’s practice of hypothesizing bases to Richter’s specific procedural posture — that is, to cases where there is no reasoned opinion by any state habeas court — thus limiting the heavy and unnecessary burden this practice places on habeas petitioners.
Marion Wilson was convicted of murder and sentenced to death by a Georgia jury in 1997.19×19. Id. After exhausting his direct appeals,20×20. See id. Wilson filed a petition in a Georgia state habeas court, claiming, inter alia, ineffective assistance of trial counsel under the federal constitutional standard.21×21. Id. The state habeas court denied Wilson’s ineffective assistance claim on the merits after a hearing, explaining its reasoning in an opinion.22×22. See id. at 1192–93. The Supreme Court of Georgia denied Wilson’s appeal without opinion, and the United States Supreme Court denied certiorari.23×23. Id. at 1193.
Wilson next filed a habeas petition in the U.S. District Court for the Middle District of Georgia, bringing the ineffective assistance claim, among others.24×24. Wilson v. Humphrey, No. 10-cv-00489, 2013 WL 6795024, at *1 (M.D. Ga. Dec. 19, 2013). In denying Wilson’s § 2254(d) claims, the district court judge evaluated the lower state habeas court’s opinion rather than the state appellate court’s unexplained decision.25×25. See id. at *9–54. After a panel of the Eleventh Circuit looked instead at the state appellate court’s decision,26×26. See Wilson v. Warden, 774 F.3d 671, 678 (11th Cir. 2014). The panel explained its decision without reference to Ylst, to the circuits that had done otherwise, or even to the district court’s choice. See id. (“As an initial matter, the one-line decision of the Supreme Court of Georgia denying Wilson’s certificate of probable cause is the relevant state-court decision for our review because it is the final decision ‘on the merits.’ Instead of deferring to the reasoning of the state trial court, we ask whether there was any ‘reasonable basis for the [Supreme Court of Georgia] to deny relief.’” (alteration in original) (citations omitted) (first quoting Newland v. Hall, 527 F.3d 1162, 1199 (11th Cir. 2008); and then quoting Harrington v. Richter, 562 U.S. 86, 98 (2011))). the Eleventh Circuit granted Wilson’s petition for rehearing en banc to decide the look-through question.27×27. Wilson v. Warden, 834 F.3d 1227, 1231 (11th Cir. 2016) (en banc), rev’d sub nom. Wilson, 138 S. Ct. 1188. The Eleventh Circuit appointed an amicus to argue against the look-through presumption after Georgia changed its position to favor such a presumption. Id. at 1232. Writing for the en banc court, Judge William Pryor agreed with the panel that such cases should be assessed under Richter, finding that neither AEDPA nor Richter required federal courts reviewing unexplained state appellate court opinions to “‘look through’ a summary decision on the merits to review the reasoning of the lower state court.”28×28. Id. at 1230; see id. at 1235–36. The en banc court deemed Ylst inapposite, explaining that Ylst made more sense where the federal court was assuming only that the state higher court had adopted “the same general ground — that is, a procedural ground or on the merits” — than where, as in Wilson, the federal court would have to assume that the state higher court adopted “the same specific reasons provided by the lower court.” Id. at 1236. In separate dissents, Judge Jordan argued that the majority had incorrectly chosen Richter over Ylst when neither squarely controlled the issue,29×29. Id. at 1242–43 (Jordan, J., dissenting) (“According to the majority, nothing in Richter suggests that its reasoning is limited to the narrow subset of habeas cases where there is no reasoned decision from any state court. That may be true, but Ylst was similarly silent with respect to its own reach.” Id. at 1243.). and Judge Jill Pryor argued that Supreme Court precedent and federalism favored a look-through presumption.30×30. Id. at 1247 (J.A. Pryor, J., dissenting).
The Supreme Court reversed and remanded.31×31. Wilson, 138 S. Ct. at 1197. Justice Breyer wrote for the majority,32×32. Justice Breyer was joined by Chief Justice Roberts and Justices Kennedy, Ginsburg, Sotomayor, and Kagan. “hold[ing] that the federal court should ‘look through’ the unexplained decision to the last [reasoned] state-court decision” and “presume that the unexplained decision adopted the same reasoning.”33×33. Wilson, 138 S. Ct. at 1192. But the presumption is not absolute: to “rebut the presumption,” the State must “show that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court’s decision, such as alternative grounds for affirmance that were briefed or argued to the state supreme court or obvious in the record it reviewed.”34×34. Id. This conclusion, the Court wrote, “ha[d] parallels in [the] Court’s precedent,” namely Ylst, which had approved a similar look-through presumption for federal courts trying to determine whether a state summary denial rested on state procedural default.35×35. Id. at 1194. The Court quoted language from Ylst discussing the “difficult[y] and artificial[ity]” of attributing meaning to unexplained state appellate decisions in state habeas cases.36×36. Id. (quoting Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Citing the consensus among the circuits before the Eleventh Circuit’s opinion below, the Court endorsed the look-through presumption as “often realistic, for state higher courts often (but certainly not always) write ‘denied’ or ‘affirmed’ or ‘dismissed’ when they have examined the lower court’s reasoning and found nothing significant with which they disagree.”37×37. Id. (citation omitted). And, the Court noted, “a ‘look through’ presumption is often (but not always) more efficiently applied than a contrary approach — an approach, for example, that would require a federal habeas court to imagine what might have been the state [higher] court’s supportive reasoning.”38×38. Id. at 1194–95.
In response to the State’s position that Richter controlled and thus required federal courts to evaluate the summary decision itself, affirming when there was any reasonable basis for the ruling,39×39. See id. at 1195. the Court found that “Richter does not control here”40×40. Id. for three reasons: First, “Richter did not directly concern the issue” in Wilson because “there was no lower court opinion to look to” in Richter.41×41. Id. Second, Richter did not explicitly preclude the application of Ylst when there was a reasoned lower court opinion and in fact cited Ylst as an example of a case where the presumption that a court’s decision was on the merits may be overcome.42×42. See id. (citing Harrington v. Richter, 562 U.S. 86, 99–100 (2011) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991))). And third, the Court had already “‘looked through’ to lower court decisions in cases involving the merits,” including one decided the same day as Richter.43×43. Id. (first citing Premo v. Moore, 562 U.S. 115, 123–33 (2011); and then citing Sears v. Upton, 561 U.S. 945, 951–56 (2010) (per curiam)).
The Court rejected four further arguments made by Georgia. First, in response to the State’s argument “that there could be many cases in which a ‘look through’ presumption does not accurately identify the grounds for the higher court’s decision,” the Court reiterated that the look-through presumption was rebuttable, noting that “the unreasonableness of the lower court’s decision itself” could “provide some evidence that makes it less likely the state supreme court adopted the same reasoning.”44×44. Id. at 1196. Second, the Court found the State’s and the dissent’s appeal to “traditional rules of appellate practice”45×45. Id. (quoting id. at 1199 (Gorsuch, J., dissenting)). misplaced; the Court distinguished the habeas context, where looking through does not create binding precedent and serves only the “specific and narrow purpose” of “identify[ing] the grounds for the higher court’s decision, as AEDPA directs [federal habeas courts] to do.”46×46. Id. Third, the Court rejected the State’s argument that the look-through presumption “shows disrespect for the States,”47×47. Id. at 1196–97. Justice Gorsuch made similar arguments in dissent. See, e.g., id. at 1202 (Gorsuch, J., dissenting). explaining that its approach was “more likely to respect what the state court actually did” and reiterating again that “the federal habeas court is free” to find the presumption rebutted “[w]here there are convincing grounds to believe the silent court had a different basis for its decision than the analysis followed by the previous court.”48×48. Id. at 1197 (majority opinion). And finally, in response to the State’s concern that the Court’s holding would “lead state courts to believe they must write full opinions” where they would not otherwise have done so, the Court found that the State had offered no evidence of such an effect in the circuits that were already applying a look-through presumption.49×49. Id. In any case, “given the narrowness of the context,” the Court “[did] not believe” state courts would “feel compelled to do so.”50×50. Id.
Justice Gorsuch dissented.51×51. Justice Gorsuch was joined by Justices Thomas and Alito. AEDPA, he argued, clearly required a federal habeas court to “focus its review on the final state court decision on the merits,”52×52. Wilson, 138 S. Ct. at 1198 (Gorsuch, J., dissenting); see id. at 1197–98. and Richter had made clear that an unexplained state appellate court order was such an adjudication.53×53. Id. at 1198. Ylst, he believed, was limited to cases where the question was whether or not a ruling rested on an independent and adequate state ground.54×54. See id. at 1202. While Justice Gorsuch used the broader term “independent and adequate state ground,” id., Ylst itself addressed only one such ground: procedural default, see Ylst v. Nunnemaker, 501 U.S. 797, 801–06 (1991). In addition to finding that the Court’s holding “defie[d] traditional rules of appellate practice,”55×55. Wilson, 138 S. Ct. at 1199 (Gorsuch, J., dissenting); see id. at 1199–1200. which he did not find distinguishable in the habeas context,56×56. See id. at 1202. Justice Gorsuch disputed the Court’s contention that its approach was realistic, noting that the Georgia Supreme Court had recently made statements to the contrary.57×57. See id. at 1200–01. Justice Gorsuch found solace in his conclusion that the Court had “reshape[d] radically petitioner’s proposed presumption before adopting it.”58×58. Id. at 1203. He interpreted the Court’s statement that “it is more likely that a state supreme court’s single word ‘affirm’ rests upon alternative grounds where the lower state court decision is unreasonable”59×59. Id. (quoting id. at 1196 (majority opinion)). to mean that “the ‘look through’ presumption can be rebutted ‘where the lower state court decision is unreasonable.’”60×60. Id. at 1204 (quoting id. at 1196 (majority opinion)). This led, Justice Gorsuch argued, to the same result as if the Court had directly followed Richter: “[A] federal habeas court is neither obliged to look through exclusively to the reasons given by a lower state court, nor required to presume that a summary order adopts those reasons.”61×61. Id. (emphases omitted).
Contrary to Justice Gorsuch’s interpretation, both the Court’s explicit holding and indications implicit in its opinion reveal an intent, not to “drop us back where we began,”62×62. Id. but rather to maintain a presumption with teeth. In doing so, the Wilson Court limited one of the harshest pieces of Richter’s legacy — the practice of courts imagining all possible bases for denying relief — to Richter’s specific procedural posture, thus sparing habeas petitioners from a burden that AEDPA need never have imposed on them.
To start, “a good rule of thumb for reading [Supreme Court] decisions is that what they say and what they mean are one and the same.”63×63. Mathis v. United States, 136 S. Ct. 2243, 2254 (2016). The explicit language of the Wilson presumption itself creates a high bar over which states must jump. Wilson held that, to rebut the presumption, a state must “show that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court’s decision.”64×64. Wilson, 138 S. Ct. at 1192 (emphasis added). The Court’s examples of such grounds were those “briefed or argued to the state supreme court or obvious in the record it reviewed.”65×65. Id. This is a stricter requirement than Justice Gorsuch admitted to finding in the majority opinion: rather than requiring federal habeas courts to “sustain a state court summary decision denying relief if [the record below] reveal[s] a basis to do so reasonably consistent with this Court’s holdings,”66×66. Id. at 1204 (Gorsuch, J., dissenting). Wilson requires specific and concrete evidence of alternate grounds on which the state appellate court “relied or most likely did rely.”67×67. Id. at 1192 (majority opinion). Moreover, the Court described the look-through presumption as preferable to a “contrary approach . . . that would require a federal habeas court to imagine what might have been the state court’s supportive reasoning,”68×68. Id. at 1194–95. that is, the Richter approach of hypothesizing all possible bases for relief.69×69. See Harrington v. Richter, 562 U.S. 86, 98, 102 (2011).
The Court’s responses to the State and the dissent later in the opinion do not relax this standard. In response to concern that a look-through presumption would not account for situations in which the state high court’s summary decision did not in fact adopt the lower state habeas court’s reasoning, the Court noted again that the presumption was rebuttable and stated that “the unreasonableness of the lower court’s decision itself provides some evidence that makes it less likely the state supreme court adopted the same reasoning.”70×70. Wilson, 138 S. Ct. at 1196 (emphasis added). But that evidence alone would be insufficient to rebut the presumption: in the subsequent sentence, the Court stated that “additional evidence” — that is, evidence in addition to the fact of a lower state court’s unreasonableness — “that might not be sufficient to rebut the presumption in a case like Ylst would allow a federal court to conclude that counsel has rebutted the presumption.”71×71. Id. As an illustration of such additional evidence, the Court used the same example as it did in its holding: “[c]onvincing alternative arguments for affirmance made to the State’s highest court or equivalent evidence presented in [the State’s] briefing to the federal court.”72×72. Id.; see id. at 1192 (“But the State may rebut the presumption by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court’s decision, such as alternative grounds for affirmance that were briefed or argued to the state supreme court or obvious in the record it reviewed.”). So the Court cannot have meant “that essentially only reasonable (and so sustainable) lower state court opinions are presumptively adopted by final state court summary decisions,”73×73. Id. at 1204 (Gorsuch, J., dissenting) (emphasis omitted). as Justice Gorsuch claimed. Instead, the Court affirmed that, while the Wilson presumption may be rebutted in situations where the Ylst presumption would not, rebuttal requires at least evidence of the state higher court likely relying on different grounds, and perhaps also evidence of the state lower court’s unreasonableness. Thus, the passage relied on by Justice Gorsuch to show the weakness of the Wilson presumption in fact shows its strength.
Other elements of the majority opinion implicitly indicate the strength of the Wilson presumption. Wilson reversed an Eleventh Circuit opinion that adopted exactly the position Justice Gorsuch claims Wilson adopted: “[T]hat federal courts need not ‘look through’ a summary decision on the merits to review the reasoning of the lower state court.”74×74. Wilson v. Warden, 834 F.3d 1227, 1230 (11th Cir. 2016) (en banc), rev’d sub nom. Wilson, 138 S. Ct. 1188; see Wilson, 138 S. Ct. at 1204 (Gorsuch, J., dissenting) (“With the Court’s revisions to petitioner’s presumption, a federal habeas court is neither obliged to look through exclusively to the reasons given by a lower state court, nor required to presume that a summary order adopts those reasons.” (emphasis omitted)). Moreover, the Court discussed approvingly “the many Circuits that have applied Ylst outside the procedural context,”75×75. Wilson, 138 S. Ct. at 1197 (majority opinion); see id. at 1193–94. seemingly equating the Court’s own presumption with the approaches taken by the circuits that had chosen to look through.76×76. See id. at 1193–95 (noting, after “conclud[ing] that federal habeas law employs a ‘look through’ presumption,” id. at 1193, that “every Circuit to have considered the matter” except the Eleventh “has applied this presumption . . . even where the state courts did not apply a procedural bar to review,” id. at 1194 (emphasis added), and finding this trend “not surprising” given the realism and efficiency of the look-through presumption, id. at 1194–95). These circuits had been applying the presumption almost categorically, without mention of the presumption being rebuttable.77×77. See, e.g., Pillars v. Palmer, 565 F. App’x 375, 376 (6th Cir. 2014) (per curiam) (“This court reviews the decision of ‘the last state court to issue a reasoned opinion on the issue,’ which in this case is the decision of the Michigan Court of Appeals . . . .” (quoting Payne v. Bell, 418 F.3d 644, 660 (6th Cir. 2005))); Ruhl v. Hardy, 743 F.3d 1083, 1091 (7th Cir. 2014) (“In conducting federal habeas review under AEDPA, we look to the last reasoned state court opinion addressing each claim.”); Cannedy v. Adams, 706 F.3d 1148, 1156 (9th Cir. 2013) (“[T]he California Supreme Court summarily affirmed. Therefore, we ‘look through’ the California Supreme Court’s decision to the last reasoned decision . . . .” (quoting James v. Ryan, 679 F.3d 780, 801 (9th Cir. 2012), rev’d on other grounds, 568 U.S. 1224 (2013) (mem.))). The circuit court decisions released since Wilson lend further support to this reading: The Sixth,78×78. Compare Martin v. Haas, 731 F. App’x 443, 451–52 (6th Cir. 2018), with Pillars, 565 F. App’x at 376, and Joseph v. Coyle, 469 F.3d 441, 450 (6th Cir. 2006). Seventh,79×79. Compare Weaver v. Nicholson, 892 F.3d 878, 883 (7th Cir. 2018), and Laux v. Zatecky, 890 F.3d 666, 673 n.2 (7th Cir. 2018), with Ruhl, 743 F.3d at 1091. and Ninth80×80. Compare Ellis v. Harrison, 891 F.3d 1160, 1164 (9th Cir. 2018), with Cannedy, 706 F.3d at 1156. Circuits, their approach approved by Wilson, have continued to employ a straightforward look-through presumption. The Eleventh Circuit, on remand in Wilson, applied the Supreme Court’s holding in a similarly straightforward manner, without mention of the presumption being rebuttable.81×81. See Wilson v. Warden, 898 F.3d 1314, 1316 (11th Cir. 2018) (“The Supreme Court held that we must ‘look through’ an unexplained decision by a state supreme court to the last reasoned decision and presume that the state supreme court adopted the reasoning in the decision by the lower state court.” (citing Wilson, 138 S. Ct. at 1192)). If there was any doubt that Wilson meant to maintain a strong presumption, the circuits have laid it to rest.
Arguably the greatest virtue of the Wilson presumption is that it spares habeas petitioners from having to prove not only that the actual state court opinions denying them relief were unreasonable but also that any possible opinion denying them relief would have been unreasonable.82×82. See Wilson, 138 S. Ct. at 1194–95 (“Moreover, a ‘look through’ presumption is often (but not always) more efficiently applied than a contrary approach — an approach, for example, that would require a federal habeas court to imagine what might have been the state court’s supportive reasoning.”). This harsh standard, created by Richter,83×83. See Harrington v. Richter, 562 U.S. 86, 98 (2011) (“Where a state court’s decision is unaccompanied by an explanation, the habeas petitioner’s burden still must be met by showing there was no reasonable basis for the state court to deny relief.”); id. at 102 (“Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court’s decision . . . .”). has been criticized as an unnecessary heightening of AEDPA’s already strict standard.84×84. See, e.g., Reinhardt, supra note 2, at 1230–31; see also Patrick J. Fuster, Comment, Taming Cerberus: The Beast at AEDPA’s Gates, 84 U. Chi. L. Rev. 1325, 1375–76 (2017) (“Section 2254(d) does not demand willful blindness to unreasonable adjudications, nor does it require maximal deference on any ground imaginable. The objective is . . . not for federal courts to conceal [constitutional errors] under the guise of hypothesizing.”). And by repudiating this practice in cases where a state higher court summarily affirms a reasoned state lower court opinion denying a state habeas petitioner relief, Wilson must logically also condemn the practice in the “ordinary” § 2254(d) case where there is a reasoned state higher court opinion. If imagining all possible bases for a state higher court’s opinion is unacceptable when that court has produced only a summary decision, how could it possibly be acceptable when that court has explained the grounds on which it decided? Indeed, the Fifth Circuit recently recognized the possibility of this broader effect of Wilson, though it had no occasion to decide the issue.85×85. In Langley v. Prince, 890 F.3d 504 (5th Cir. 2018), the Fifth Circuit, which had previously applied “Richter’s ‘could have supported’ framework” in the ordinary § 2254(d) case, id. at 515 (quoting Wilson, 138 S. Ct. at 1195), reserved for “another day” a determination of “Wilson’s impact” on that framework, id., repeating Wilson’s Richter-minimizing description of § 2254(d) review, id. n.15 (quoting Wilson, 138 S. Ct. at 1191–92), and noting that “Wilson held that ‘Richter does not control . . . where there is a reasoned decision by a lower state court,’” id. (omission in original) (quoting Wilson, 138 S. Ct. at 1195).
Limiting the practice of hypothesizing bases for relief to the procedural posture in Richter — that is, where there is only a state high court summary denial of relief and no reasoned opinion below86×86. Richter, 562 U.S. at 96. — is consistent not only with Wilson’s explicit repudiation of the practice in its own procedural posture but also with Wilson’s softened characterization of ordinary § 2254(d) review. The Court described § 2254(d) as requiring a federal habeas court to “simply review the specific reasons given by the state court and defer to those reasons if they are reasonable.”87×87. Wilson, 138 S. Ct. at 1192. Absent was the extreme language from Richter that Justice Gorsuch would have used to describe § 2254(d).88×88. See id.; id. at 1198 (Gorsuch, J., dissenting). Justice Gorsuch quoted extensively from Richter when describing the § 2254(d) standard, see id., including to emphasize that “the habeas petitioner’s burden still must be met by showing there was no reasonable basis for the state court to deny relief,” id. (quoting Richter, 562 U.S. at 98), and that “[i]f this standard seems hard for a habeas petitioner to overcome, ‘that is because it was meant to be,’” id. (quoting Richter, 562 U.S. at 102). And in addition to later distinguishing Richter as not controlling in cases where there is a reasoned opinion by a lower state habeas court,89×89. See id. at 1195 (majority opinion). the Court’s initial mention of Richter in its description of ordinary § 2254(d) review reduced Richter to mere support for the proposition that federal habeas courts should “give appropriate deference to” the applicable state court decision.90×90. Id. at 1192. Thus, in both logic and tone, Wilson seems to end the Richter practice of imagining all possible bases for relief in all but one specific procedural posture,91×91. The presence of Richter’s author, Justice Kennedy, in the Wilson majority does not detract from this conclusion. As noted above, Richter did not extend its reach beyond its specific procedural posture, and Justice Kennedy did not avail himself of the opportunity to concur separately in Wilson to express any clarifications of, or reservations about, Wilson’s stance on imagining bases for relief. limiting the harsh effects of an unnecessarily strict interpretation of AEDPA.92×92. Cf. Reinhardt, supra note 2, at 1220–21 (rejecting the contention “that there is no reasonable alternative to the Supreme Court’s present construction of” AEDPA, id. at 1220, and describing the Court’s AEDPA jurisprudence as “a tale defined by a series of highly questionable Supreme Court rulings that took a new statute, AEDPA — misconceived at its inception and born of misguided political ambition — and repeatedly interpreted it in the most inflexible and unyielding manner possible,” id. at 1221).