Did the Supreme Court’s decision in Harrington v. Richter, 562 U.S. 86 (2011), silently abrogate the presumption set forth in Ylst v. Nunnemaker, 501 U.S. 797 (1991)—that a federal court sitting in habeas proceedings should “look through” a summary state court ruling to review the last reasoned decision—as a slim majority of the en banc Eleventh Circuit held in this case, despite the agreement of both parties that the Ylst presumption should continue to apply?
The decision in this case will matter for anyone doing federal habeas litigation involving state court convictions. For those unfamiliar with this issue, here’s the background:
In Ylst the Court held that when a state court issues a summary denial of a state prisoner’s legal challenges to his conviction, the federal habeas court will presume the “silent” summary decision rests on the same grounds as the last state court decision that set out its reasoning for denying the challenge. Thus, the federal court “looks through” the summary decision and instead assesses the last reasoned state court decision. But Ylst was decided before AEDPA, and Harrington held that under AEDPA the federal habeas court must presume a summary state court decision is an adjudication on the merits, absent evidence to the contrary. This matters because by giving AEDPA deference to a summary decision rather than the last reasoned decision, the habeas court must determine what arguments could have supported the state court’s decision to deny relief and to defer to those reasons, even if they’re entirely hypothetical reasons the state court never addressed or considered.
At least three circuits have expressly held that the Ylst “look through” rule survived Harrington, including our own in Woolley v. Rednour, 702 F.3d 411, 422 (7th Cir. 2012). Others have essentially assumed that is the case by continuing to apply the rule even after Harrington was decided. Only the Eleventh Circuit in this case has found that Harrington abrogated Ylst. There are strong reasons for thinking the Eleventh went off the rails here, as Harrington involved unique facts (summary denial of an original state habeas petition filed in the state’s highest court, with no reasoned state court decision at all) and the Court itself has applied Ylst even after deciding Harrington, see, e.g., Brumfield v. Cain, 135 S. Ct. 2269 (2015); Foster v. Chatman, 136 S. Ct. 1737 (2016). Also, it’s notable that in the circuit court the government agreed with the petitioner that the Ylst rule survived Harrington, and it then joined him in asking the Court to grant certiorari. So confident is the petitioner that he took the unusual step of putting a quotation from one of the dissenting circuit judges on the cover of his cert petition: “My prediction is that the Supreme Court will decide this issue differently than the en banc majority and hold that the presumption in [Ylst] governs.” We’ll see if that prediction is borne out next Term, when the case will be argued and decided.