White v. Woodall

(Slip Opinion) OCTOBER TERM, 2013 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

WHITE, WARDEN v. WOODALL

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

No. 12–794. Argued December 11, 2013—Decided April 23, 2014

Respondent pleaded guilty to capital murder, capital kidnaping, and

first-degree rape, the statutory aggravating circumstance for the

murder. He was sentenced to death after the trial court denied de-

fense counsel’s request to instruct the jury not to draw any adverse

inference from respondent’s decision not to testify at the penalty

phase. The Kentucky Supreme Court affirmed, finding that the Fifth

Amendment’s requirement of a no-adverse-inference instruction to

protect a nontestifying defendant at the guilt phase, see Carter v.

Kentucky, 450 U. S. 288, is not required at the penalty phase. Subse-

quently, the Federal District Court granted respondent habeas relief,

holding that the trial court’s refusal to give the requested instruction

violated respondent’s privilege against self-incrimination. The Sixth

Circuit affirmed.

Held: Because the Kentucky Supreme Court’s rejection of respondent’s

Fifth Amendment claim was not objectively unreasonable, the Sixth

Circuit erred in granting the writ. Pp. 3–12.

(a) The difficult-to-meet standard of 28 U. S. C. §2254(d) permits a

court to grant federal habeas relief on a claim already “adjudicated

on the merits in State court” only if that adjudication “resulted in a

decision that was contrary to, or involved an unreasonable applica-

tion of, clearly established Federal law, as determined by [this]

Court.” “ ‘[C]learly established Federal law’ ” includes only “ ‘the

holdings” of the Court’s decisions,’ ” Howes v. Fields, 565 U. S. ___,

___; and an “unreasonable application of ” those holdings must be

“ ‘objectively unreasonable,’ ” Lockyer v. Andrade, 538 U. S. 63, 75–

76. The state-court ruling must rest on “an error well understood

and comprehended in existing law beyond any possibility for fair-

minded disagreement.” Harrington v. Richter, 562 U. S. ___, ___.

2 WHITE v. WOODALL

Syllabus

Here, the Kentucky Supreme Court’s conclusion was not “contrary

to” the Court’s holdings in Carter, supra, which required a no-

adverse-inference instruction at the guilt phase; in Estelle v. Smith,

451 U. S. 454, which concerned the introduction at the penalty phase

of the results of an involuntary, un-Mirandized pretrial psychiatric

examination; or in Mitchell v. United States, 526 U. S. 314, 327–330,

which disapproved a trial judge’s drawing of an adverse inference

from the defendant’s silence at sentencing “with regard to factual de-

terminations respecting the circumstances and details of the crime.”

Nor was the Kentucky Supreme Court’s conclusion an unreasonable

application of the holdings in those cases. This Court need not decide

whether a no-adverse-inference instruction is required in these cir-

cumstances, for the issue before the Kentucky Supreme Court was, at

a minimum, not “beyond any possibility for fairminded disagree-

ment,” Harrington, supra, at ___. Mitchell in particular leaves open

the possibility that some inferences might permissibly be drawn from

a defendant’s penalty-phase silence. Thus, it cannot be read to re-

quire the type of blanket no-adverse-inference instruction requested

and denied here. Moreover, because respondent’s own admissions of

guilt had established every relevant fact on which Kentucky bore the

burden of proof, Mitchell’s narrow holding, which implied that it was

limited to inferences pertaining to the facts of the crime, does not ap-

ply. Pp. 3–9.

(b) Respondent contends that the state court was unreasonable in

refusing to extend a governing legal principle to a context in which it

should have controlled, but this Court has never adopted such a rule.

Section 2254(d)(1) provides a remedy for instances in which a state

court unreasonably applies this Court’s precedent; it does not require

state courts to extend that precedent or license federal courts to treat

the failure to do so as error. The appropriate time to consider, as a

matter of first impression, whether Carter, Estelle, and Mitchell re-

quire a penalty-phase no-adverse-inference instruction would be on

direct review, not in a habeas case governed by §2254(d). Pp. 9–12.

685 F. 3d 574, reversed and remanded.

SCALIA, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and KENNEDY, THOMAS, ALITO, and KAGAN, JJ., joined. BREYER,

J., filed a dissenting opinion, in which GINSBURG and SOTOMAYOR, JJ.,

joined.

Cite as: 572 U. S. ____ (2014) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 12–794

_________________

RANDY WHITE, WARDEN, PETITIONER v. ROBERT

KEITH WOODALL

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

[April 23, 2014]

JUSTICE SCALIA delivered the opinion of the Court.

Respondent brutally raped, slashed with a box cutter,

and drowned a 16-year-old high-school student. After

pleading guilty to murder, rape, and kidnaping, he was

sentenced to death. The Kentucky Supreme Court af-

firmed the sentence, and we denied certiorari. Ten years

later, the Court of Appeals for the Sixth Circuit granted

respondent’s petition for a writ of habeas corpus on his

Fifth Amendment claim. In so doing, it disregarded the

limitations of 28 U. S. C. §2254(d)—a provision of law that

some federal judges find too confining, but that all federal

judges must obey. We reverse.

I

On the evening of January 25, 1997, Sarah Hansen

drove to a convenience store to rent a movie. When she

failed to return home several hours later, her family called

the police. Officers eventually found the vehicle Hansen

had been driving a short distance from the convenience

store. They followed a 400- to 500-foot trail of blood from

the van to a nearby lake, where Hansen’s unclothed, dead

body was found floating in the water. Hansen’s “throat

2 WHITE v. WOODALL

Opinion of the Court

had been slashed twice with each cut approximately 3.5 to

4 inches long,” and “[h]er windpipe was totally severed.”

Woodall v. Commonwealth, 63 S. W. 3d 104, 114 (Ky.

2002).

Authorities questioned respondent when they learned

that he had been in the convenience store on the night of

the murder. Respondent gave conflicting statements

regarding his whereabouts that evening. Further investi-

gation revealed that respondent’s “fingerprints were on

the van the victim was driving,” “[b]lood was found on

[respondent’s] front door,” “[b]lood on his clothing and

sweatshirt was consistent with the blood of the victim,”

and “DNA on . . . vaginal swabs” taken from the victim

“was consistent with” respondent’s. Ibid.

Faced with overwhelming evidence of his guilt, respond-

ent pleaded guilty to capital murder. He also pleaded

guilty to capital kidnaping and first-degree rape, the

statutory aggravating circumstance for the murder. See

App. 78; Ky. Rev. Stat. Ann. §532.025(2)(a) (West Supp.

2012). At the ensuing penalty-phase trial, respondent

called character witnesses but declined to testify himself.

Defense counsel asked the trial judge to instruct the jury

that “[a] defendant is not compelled to testify and the fact

that the defendant did not testify should not prejudice him

in any way.” App. 31. The trial judge denied the request,

and the Kentucky Supreme Court affirmed that denial.

Woodall v. Commonwealth, supra, at 115. While recog-

nizing that the Fifth Amendment requires a no-adverse-

inference instruction to protect a nontestifying defendant

at the guilt phase, see Carter v. Kentucky, 450 U. S. 288

(1981), the court held that Carter and our subsequent

cases did not require such an instruction here. Woodall v.

Commonwealth, supra, at 115. We denied respondent’s

petition for a writ of certiorari from that direct appeal.

Woodall v. Kentucky, 537 U. S. 835 (2002).

In 2006, respondent filed this petition for habeas corpus

Cite as: 572 U. S. ____ (2014) 3

Opinion of the Court

in Federal District Court. The District Court granted

relief, holding, as relevant here, that the trial court’s

refusal to issue a no-adverse-inference instruction at the

penalty phase violated respondent’s Fifth Amendment

privilege against self-incrimination. Woodall v. Simpson,

No. 5:06CV–P216–R (WD Ky., Feb. 24, 2009), App. to Pet.

for Cert. 58a–61a, 2009 WL 464939, *12. The Court of

Appeals affirmed and ordered Kentucky to either resen-

tence respondent within 180 days or release him. Woodall

v. Simpson, 685 F. 3d 574, 581 (CA6 2012).1 Judge Cook

dissented.

We granted certiorari. 570 U. S. ___ (2013).

II

A

Section 2254(d) of Title 28 provides that “[a]n applica-

tion for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall

not be granted with respect to any claim that was adjudi-

cated on the merits in State court proceedings unless the

adjudication of the claim . . . resulted in a decision that

was contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the

Supreme Court of the United States.” “This standard,” we

recently reminded the Sixth Circuit, “is ‘difficult to meet.’ ”

Metrish v. Lancaster, 569 U. S. ___, ___ (2013) (slip op., at

4–5). “ ‘[C]learly established Federal law’ ” for purposes of

§2254(d)(1) includes only “ ‘the holdings, as opposed to the

dicta, of this Court’s decisions.’ ” Howes v. Fields, 565

U. S. ___, ___ (2012) (slip op., at 4) (quoting Williams v.

Taylor, 529 U. S. 362, 412 (2000)). And an “unreasonable

application of ” those holdings must be “ ‘objectively unrea-

——————

1 The Court of Appeals did not reach the alternative ground for the

District Court’s decision: respondent’s claim based on Batson v. Ken-

tucky, 476 U. S. 79 (1986). See 685 F. 3d, at 577–578. That claim is not

before us here.

4 WHITE v. WOODALL

Opinion of the Court

sonable,’ ” not merely wrong; even “clear error” will not

suffice. Lockyer v. Andrade, 538 U. S. 63, 75–76 (2003).

Rather, “[a]s a condition for obtaining habeas corpus from

a federal court, a state prisoner must show that the state

court’s ruling on the claim being presented in federal court

was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” Harrington v.

Richter, 562 U. S. ___, ___ (2011) (slip op., at 13).

Both the Kentucky Supreme Court and the Court of

Appeals identified as the relevant precedents in this area

our decisions in Carter, Estelle v. Smith, 451 U. S. 454

(1981), and Mitchell v. United States, 526 U. S. 314 (1999).

Carter held that a no-adverse-inference instruction is

required at the guilt phase. 450 U. S., at 294–295, 300.

Estelle concerned the introduction at the penalty phase of

the results of an involuntary, un-Mirandized pretrial

psychiatric examination. 451 U. S., at 456–457, and n. 1;

id., at 461. And Mitchell disapproved a trial judge’s draw-

ing of an adverse inference from the defendant’s silence at

sentencing “with regard to factual determinations respect-

ing the circumstances and details of the crime.” 526 U. S.,

at 327–330.

It is clear that the Kentucky Supreme Court’s conclu-

sion is not “contrary to” the actual holding of any of these

cases. 28 U. S. C. §2254(d)(1). The Court of Appeals held,

however, that the “Kentucky Supreme Court’s denial of

this constitutional claim was an unreasonable application

of ” those cases. 685 F. 3d, at 579. In its view, “reading

Carter, Estelle, and Mitchell together, the only reasonable

conclusion is that” a no-adverse-inference instruction was

required at the penalty phase. Ibid.2

——————

2 The Court of Appeals also based its conclusion that respondent “was

entitled to receive a no adverse inference instruction” on one of its own

cases, Finney v. Rothgerber, 751 F. 2d 858, 863–864 (CA6 1985). 685

Cite as: 572 U. S. ____ (2014) 5

Opinion of the Court

We need not decide here, and express no view on,

whether the conclusion that a no-adverse-inference in-

struction was required would be correct in a case not

reviewed through the lens of §2254(d)(1). For we are

satisfied that the issue was, at a minimum, not “beyond

any possibility for fairminded disagreement.” Harrington,

supra, at ___ (slip op., at 13).

We have, it is true, held that the privilege against self-

incrimination applies to the penalty phase. See Estelle,

supra, at 463; Mitchell, supra, at 328–329. But it is not

uncommon for a constitutional rule to apply somewhat

differently at the penalty phase than it does at the guilt

phase. See, e.g., Bobby v. Mitts, 563 U. S. ___, ___ (2011)

(per curiam) (slip op., at 4). We have “never directly held

that Carter applies at a sentencing phase where the Fifth

Amendment interests of the defendant are different.”

United States v. Whitten, 623 F. 3d 125, 131–132, n. 4

(CA2 2010) (Livingston, J., dissenting from denial of re-

hearing en banc).

Indeed, Mitchell itself leaves open the possibility that

some inferences might permissibly be drawn from a de-

fendant’s penalty-phase silence. In that case, the District

Judge had actually drawn from the defendant’s silence an

adverse inference about the drug quantity attributable to

the defendant. See 526 U. S., at 317–319. We held that

this ran afoul of the defendant’s “right to remain silent at

sentencing.” Id., at 325, 327–328 (citing Griffin v. Cali-

fornia, 380 U. S. 609, 614 (1965)). But we framed our

holding narrowly, in terms implying that it was limited to

inferences pertaining to the facts of the crime: “We decline

to adopt an exception for the sentencing phase of a crimi-

——————

F. 3d, at 579 (internal quotation marks omitted). That was improper.

As we cautioned the Sixth Circuit two Terms ago, a lower court may not

“consul[t] its own precedents, rather than those of this Court, in as-

sessing” a habeas claim governed by §2254. Parker v. Matthews, 567

U. S. ___, ___ (2012) (per curiam) (slip op., at 12).

6 WHITE v. WOODALL

Opinion of the Court

nal case with regard to factual determinations respecting

the circumstances and details of the crime.” Mitchell, 526

U. S., at 328 (emphasis added). “The Government re-

tains,” we said, “the burden of proving facts relevant to the

crime . . . and cannot enlist the defendant in this process

at the expense of the self-incrimination privilege.” Id., at

330 (emphasis added). And Mitchell included an express

reservation of direct relevance here: “Whether silence

bears upon the determination of a lack of remorse, or upon

acceptance of responsibility for purposes of the downward

adjustment provided in §3E1.1 of the United States Sen-

tencing Guidelines (1998), is a separate question. It is not

before us, and we express no view on it.” Ibid.3

——————

3 The Courts of Appeals have recognized that Mitchell left this unre-

solved; their diverging approaches to the question illustrate the possi-

bility of fairminded disagreement. Compare United States v. Caro, 597

F. 3d 608, 629–630 (CA4 2010) (direct appeal) (noting that Mitchell

“reserved the question of whether silence bears upon lack of remorse,”

but reasoning that “Estelle and Mitchell together suggest that the Fifth

Amendment may well prohibit considering a defendant’s silence regard-

ing the nonstatutory aggravating factor of lack of remorse”), with Burr

v. Pollard, 546 F. 3d 828, 832 (CA7 2008) (habeas) (while the right to

remain silent persists at sentencing, “silence can be consistent not only

with exercising one’s constitutional right, but also with a lack of re-

morse,” which “is properly considered at sentencing” (citing Mitchell,

526 U. S., at 326–327)); Lee v. Crouse, 451 F. 3d 598, 605, n. 3 (CA10

2006) (habeas) (“[T]he circuit courts have readily confined Mitchell to

its stated holding, and have allowed sentencing courts to rely on, or

draw inferences from, a defendant’s exercise of his Fifth Amendment

rights for purposes other than determining the facts of the offense of

conviction”).

Indeed, the Sixth Circuit itself has previously recognized that Mitch-

ell “explicitly limited its holding regarding inferences drawn from a

defendant’s silence to facts about the substantive offense and did not

address other inferences that may be drawn from a defendant’s si-

lence.” United States v. Kennedy, 499 F. 3d 547, 552 (2007) (direct

appeal). Kennedy upheld under Mitchell a sentencing judge’s consider-

ation of the defendant’s refusal to complete a court-ordered psychosex-

ual examination. 499 F. 3d, at 551–552.

Cite as: 572 U. S. ____ (2014) 7

Opinion of the Court

Mitchell’s reservation is relevant here for two reasons.

First, if Mitchell suggests that some actual inferences

might be permissible at the penalty phase, it certainly

cannot be read to require a blanket no-adverse-inference

instruction at every penalty-phase trial. And it was a

blanket instruction that was requested and denied in this

case; respondent’s requested instruction would have in-

formed the jury that “[a] defendant is not compelled to

testify and the fact that the defendant did not testify

should not prejudice him in any way.” App. 31 (emphasis

added). Counsel for respondent conceded at oral argument

that remorse was at issue during the penalty-phase trial,

see Tr. of Oral Arg. 39; see also Brief for Respondent 18,

yet the proposed instruction would have precluded the

jury from considering respondent’s silence as indicative of

his lack of remorse. Indeed, the trial judge declined to

give the no-adverse-inference instruction precisely because

he was “aware of no case law that precludes the jury from

considering the defendant’s lack of expression of remorse

. . . in sentencing.” App. 36. This alone suffices to estab-

lish that the Kentucky Supreme Court’s conclusion was

not “objectively unreasonable.” Andrade, 538 U. S., at 76.

Second, regardless of the scope of respondent’s proposed

instruction, any inferences that could have been drawn

from respondent’s silence would arguably fall within the

class of inferences as to which Mitchell leaves the door

open. Respondent pleaded guilty to all of the charges he

faced, including the applicable aggravating circumstances.

Thus, Kentucky could not have shifted to respondent its

“burden of proving facts relevant to the crime,” 526 U. S.,

at 330: Respondent’s own admissions had already estab-

lished every relevant fact on which Kentucky bore the

burden of proof. There are reasonable arguments that the

logic of Mitchell does not apply to such cases. See, e.g.,

United States v. Ronquillo, 508 F. 3d 744, 749 (CA5 2007)

(“Mitchell is inapplicable to the sentencing decision in this

8 WHITE v. WOODALL

Opinion of the Court

case because ‘the facts of the offense’ were based entirely

on Ronquillo’s admissions, not on any adverse inference

. . . . Ronquillo, unlike the defendant in Mitchell, admitted

all the predicate facts of his offenses”).

The dissent insists that Mitchell is irrelevant because it

merely declined to create an exception to the “normal

rule,” supposedly established by Estelle, “that a defendant

is entitled to a requested no-adverse-inference instruction”

at sentencing. Post, at 5 (opinion of BREYER, J.). That

argument disregards perfectly reasonable interpretations

of Estelle and Mitchell and hence contravenes §2254(d)’s

deferential standard of review. Estelle did not involve an

adverse inference based on the defendant’s silence or a

corresponding jury instruction. See 451 U. S., at 461–469.

Thus, whatever Estelle said about the Fifth Amendment,

its holding4—the only aspect of the decision relevant

here—does not “requir[e]” the categorical rule the dissent

ascribes to it. Carey v. Musladin, 549 U. S. 70, 76 (2006).

Likewise, fairminded jurists could conclude that Mitchell’s

reservation regarding remorse and acceptance of responsi-

bility would have served no meaningful purpose if Estelle

had created an across-the-board rule against adverse

——————

4 The dissent says Estelle “held that ‘so far as the protection of the

Fifth Amendment is concerned,’ it could ‘discern no basis to distinguish

between the guilt and penalty phases of a defendant’s ‘capital murder

trial.’ ” Post, at 2 (quoting Estelle, 451 U. S., at 462–463). Of course, it

did not “hold” that. Rather, it held that the defendant’s Fifth Amend-

ment “rights were abridged by the State’s introduction of ” a pretrial

psychiatric evaluation that was administered without the preliminary

warning required by Miranda v. Arizona, 384 U. S. 436 (1966). 451

U. S., at 473. In any event, even Estelle’s dictum did not assume an

entitlement to a blanket no-adverse-inference instruction. The quoted

language is reasonably read as referring to the availability of the Fifth

Amendment privilege at sentencing rather than the precise scope of

that privilege when applied in the sentencing context. Indeed, it

appears in a passage responding to the State’s argument that the

defendant “was not entitled to the protection of the Fifth Amendment”

in the first place. Id., at 462.

Cite as: 572 U. S. ____ (2014) 9

Opinion of the Court

inferences; we are, after all, hardly in the habit of reserv-

ing “separate question[s],” Mitchell, supra, at 330, that

have already been definitively answered. In these circum-

stances, where the “ ‘precise contours’ ” of the right remain

“ ‘unclear,’ ” state courts enjoy “broad discretion” in their

adjudication of a prisoner’s claims. Lockyer, 538 U. S., at

76 (quoting Harmelin v. Michigan, 501 U. S. 957, 998

(1991) (KENNEDY, J., concurring in part and in judgment)).

B

In arguing for a contrary result, respondent leans heavily

on the notion that a state-court “ ‘determination may be

set aside . . . if, under clearly established federal law, the

state court was unreasonable in refusing to extend the

governing legal principle to a context in which the princi-

ple should have controlled.’ ” Brief for Respondent 21

(quoting Ramdass v. Angelone, 530 U. S. 156, 166 (2000)

(plurality opinion)). The Court of Appeals and District

Court relied on the same proposition in sustaining re-

spondent’s Fifth Amendment claim. See 685 F. 3d, at 579;

App. to Pet. for Cert. 37a–39a, 2009 WL 464939, *4.

The unreasonable-refusal-to-extend concept originated

in a Fourth Circuit opinion we discussed at length in

Williams, our first in-depth analysis of the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA). See

529 U. S., at 407–409 (citing Green v. French, 143 F. 3d

865, 869–870 (1998)). We described the Fourth Circuit’s

interpretation of §2254(d)(1)’s “unreasonable application”

clause as “generally correct,” 529 U. S., at 407, and ap-

proved its conclusion that “a state-court decision involves

an unreasonable application of this Court’s precedent if

the state court identifies the correct governing legal rule

. . . but unreasonably applies it to the facts of the particu-

lar state prisoner’s case,” id., at 407–408 (citing Green,

supra, at 869–870). But we took no position on the Fourth

Circuit’s further conclusion that a state court commits

10 WHITE v. WOODALL

Opinion of the Court

AEDPA error if it “unreasonably refuse[s] to extend a legal

principle to a new context where it should apply.” 529

U. S., at 408–409 (citing Green, supra, at 869–870). We

chose not “to decide how such ‘extension of legal principle’

cases should be treated under §2254(d)(1)” because the

Fourth Circuit’s proposed rule for resolving them presented

several “problems of precision.” 529 U. S., at 408–409.

Two months later, a plurality paraphrased and applied

the unreasonable-refusal-to-extend concept in Ramdass.

See 530 U. S., at 166–170. It did not, however, grant the

habeas petitioner relief on that basis, finding that there

was no unreasonable refusal to extend. Moreover, Justice

O’Connor, whose vote was necessary to form a majority,

cited Williams and made no mention of the unreasonable-

refusal-to-extend concept in her separate opinion concur-

ring in the judgment. See 530 U. S., at 178–181.

Ramdass therefore did not alter the interpretation of

§2254(d)(1) set forth in Williams. Aside from one opinion

criticizing the unreasonable-refusal-to-extend doctrine, see

Yarborough v. Alvarado, 541 U. S. 652, 666 (2004), we

have not revisited the issue since Williams and Ramdass.

During that same 14-year stretch, however, we have

repeatedly restated our “hold[ing]” in Williams, supra, at

409, that a state-court decision is an unreasonable appli-

cation of our clearly established precedent if it correctly

identifies the governing legal rule but applies that rule

unreasonably to the facts of a particular prisoner’s case,

see, e.g., Cullen v. Pinholster, 563 U. S. ___, ___ (2011)

(slip op., at 10); Rompilla v. Beard, 545 U. S. 374, 380

(2005); Yarborough, supra, at 663; Penry v. Johnson, 532

U. S. 782, 792 (2001).

Thus, this Court has never adopted the unreasonable-

refusal-to-extend rule on which respondent relies. It has

not been so much as endorsed in a majority opinion, let

alone relied on as a basis for granting habeas relief. To

the extent the unreasonable-refusal-to-extend rule differs

Cite as: 572 U. S. ____ (2014) 11

Opinion of the Court

from the one embraced in Williams and reiterated many

times since, we reject it. Section 2254(d)(1) provides a

remedy for instances in which a state court unreasonably

applies this Court’s precedent; it does not require state

courts to extend that precedent or license federal courts

to treat the failure to do so as error. See Scheidegger, Ha-

beas Corpus, Relitigation, and the Legislative Power, 98

Colum. L. Rev. 888, 949 (1998). Thus, “if a habeas court

must extend a rationale before it can apply to the facts at

hand,” then by definition the rationale was not “clearly

established at the time of the state-court decision.” Yar-

borough, 541 U. S., at 666. AEDPA’s carefully constructed

framework “would be undermined if habeas courts intro-

duced rules not clearly established under the guise of

extensions to existing law.” Ibid.

This is not to say that §2254(d)(1) requires an “ ‘identical

factual pattern before a legal rule must be applied.’ ”

Panetti v. Quarterman, 551 U. S. 930, 953 (2007). To the

contrary, state courts must reasonably apply the rules

“squarely established” by this Court’s holdings to the facts

of each case. Knowles v. Mirzayance, 556 U. S. 111, 122

(2009). “[T]he difference between applying a rule and

extending it is not always clear,” but “[c]ertain principles

are fundamental enough that when new factual permu-

tations arise, the necessity to apply the earlier rule will

be beyond doubt.” Yarborough, supra, at 666. The crit-

ical point is that relief is available under §2254(d)(1)’s

unreasonable-application clause if, and only if, it is so obvious

that a clearly established rule applies to a given set of

facts that there could be no “fairminded disagreement” on

the question, Harrington, 562 U. S., at ___ (slip op., at 13).

Perhaps the logical next step from Carter, Estelle, and

Mitchell would be to hold that the Fifth Amendment re-

quires a penalty-phase no-adverse-inference instruction in

a case like this one; perhaps not. Either way, we have not

yet taken that step, and there are reasonable arguments

12 WHITE v. WOODALL

Opinion of the Court

on both sides—which is all Kentucky needs to prevail in

this AEDPA case. The appropriate time to consider the

question as a matter of first impression would be on direct

review, not in a habeas case governed by §2254(d)(1).

* * *

Because the Kentucky Supreme Court’s rejection of

respondent’s Fifth Amendment claim was not objectively

unreasonable, the Sixth Circuit erred in granting the writ.

We therefore need not reach its further holding that the

trial court’s putative error was not harmless. The judg-

ment of the Court of Appeals is reversed, and the case is

remanded for further proceedings consistent with this

opinion.

It is so ordered.

Cite as: 572 U. S. ____ (2014) 1

BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 12–794

_________________

RANDY WHITE, WARDEN, PETITIONER v. ROBERT

KEITH WOODALL

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

[April 23, 2014]

JUSTICE BREYER, with whom JUSTICE GINSBURG and

JUSTICE SOTOMAYOR join, dissenting.

During the penalty phase of his capital murder trial,

respondent Robert Woodall asked the court to instruct the

jury not to draw any adverse inferences from his failure to

testify. The court refused, and the Kentucky Supreme

Court agreed that no instruction was warranted. The

question before us is whether the Kentucky courts unrea-

sonably applied clearly established Supreme Court law in

concluding that the Fifth Amendment did not entitle

Woodall to a no-adverse-inference instruction. See 28

U. S. C. §2254(d)(1). In my view, the answer is yes.

I

This Court’s decisions in Carter v. Kentucky, 450 U. S.

288 (1981), and Estelle v. Smith, 451 U. S. 454 (1981),

clearly establish that a criminal defendant is entitled to a

requested no-adverse-inference instruction in the penalty

phase of a capital trial. First consider Carter. The Court

held that a trial judge “has the constitutional obligation,

upon proper request,” to give a requested no-adverse-

inference instruction in order “to minimize the danger that

the jury will give evidentiary weight to a defendant’s

failure to testify.” 450 U. S., at 305. This is because when

“the jury is left to roam at large with only its untutored

2 WHITE v. WOODALL

BREYER, J., dissenting

instincts to guide it,” it may “draw from the defendant’s

silence broad inferences of guilt.” Id., at 301. A trial

court’s refusal to give a requested no-adverse-inference

instruction thus “exacts an impermissible toll on the full

and free exercise of the [Fifth Amendment] privilege.” Id.,

at 305.

Now consider Estelle. The Court held that “so far as the

protection of the Fifth Amendment privilege is concerned,”

it could “discern no basis to distinguish between the guilt

and penalty phases” of a defendant’s “capital murder

trial.” 451 U. S., at 462–463. The State had introduced at

the penalty phase the defendant’s compelled statements to

a psychiatrist, in order to show the defendant’s future

dangerousness. Defending the admission of those state-

ments, the State argued that the defendant “was not

entitled to the protection of the Fifth Amendment because

[his statements were] used only to determine punishment

after conviction, not to establish guilt.” Id., at 462. This

Court rejected the State’s argument on the ground that

the Fifth Amendment applies equally to the penalty phase

and the guilt phase of a capital trial. Id., at 462–463.

What is unclear about the resulting law? If the Court

holds in Case A that the First Amendment prohibits Con-

gress from discriminating based on viewpoint, and then

holds in Case B that the Fourteenth Amendment incorpo-

rates the First Amendment as to the States, then it is

clear that the First Amendment prohibits the States from

discriminating based on viewpoint. By the same logic,

because the Court held in Carter that the Fifth Amend-

ment requires a trial judge to give a requested no-adverse-

inference instruction during the guilt phase of a trial, and

held in Estelle that there is no basis for distinguishing

between the guilt and punishment phases of a capital trial

for purposes of the Fifth Amendment, it is clear that the

Fifth Amendment requires a judge to provide a requested

no-adverse-inference instruction during the penalty phase

Cite as: 572 U. S. ____ (2014) 3

BREYER, J., dissenting

of a capital trial.

II

The Court avoids this logic by reading Estelle too nar-

rowly. First, it contends that Estelle’s holding that the

Fifth Amendment applies equally to the guilt and penalty

phases was mere dictum. Ante, at 8, and n. 4. But this

rule was essential to the resolution of the case, so it is

binding precedent, not dictum.

Second, apparently in the alternative, the majority

acknowledges that Estelle “held that the privilege against

self-incrimination applies to the penalty phase,” but it

concludes that Estelle said nothing about the content of

the privilege in the penalty phase. Ante, at 5 (emphasis

added). This interpretation of Estelle ignores its rationale.

The reason that Estelle concluded that the Fifth Amend-

ment applies to the penalty phase of a capital trial is that

the Court saw “no basis to distinguish between the guilt

and penalty phases of [a defendant’s] capital murder trial

so far as the protection of the Fifth Amendment privilege

is concerned.” 451 U. S., at 462–463. And as there is no

basis to distinguish between the two contexts for Fifth

Amendment purposes, there is no basis for varying either

the application or the content of the Fifth Amendment

privilege in the two contexts.

The majority also reads our decision in Mitchell v. United

States, 526 U. S. 314 (1999), to change the legal land-

scape where it expressly declined to do so. In Mitchell, the

Court considered whether to create an exception to the

“normal rule in a criminal case . . . that no negative infer-

ence from the defendant’s failure to testify is permitted.”

Id., at 328. We refused: “We decline to adopt an exception

for the sentencing phase of a criminal case with regard to

factual determinations respecting the circumstances and

details of the crime.” Ibid. Mitchell thus reiterated what

Carter and Estelle had already established. The “normal

4 WHITE v. WOODALL

BREYER, J., dissenting

rule” is that Fifth Amendment protections apply during

trial and sentencing. Because the Court refused “to adopt

an exception” to this default rule, ibid. (emphasis added),

the law before and after Mitchell remained the same.

The majority seizes upon the limited nature of Mitchell’s

holding, concluding that by refusing to adopt an exception

to the normal rule for certain “factual determinations,”

Mitchell suggested that inferences about other matters

might be permissible at the penalty phase. Ante, at 5–7.

The majority seems to believe that Mitchell somehow casts

doubt upon whether Estelle’s Fifth Amendment rule ap-

plies to matters unrelated to the “circumstances and

details of the crime,” such as remorse, or as to which the

State does not bear the burden of proof.

As an initial matter, Mitchell would have had to over-

rule—or at least substantially limit—Estelle to create an

exception for matters unrelated to the circumstances and

details of the crime or for matters on which the defendant

bears the burden of proof. Sentencing proceedings, partic-

ularly capital sentencing proceedings, often focus on fac-

tual matters that do not directly concern facts of the

crime. Was the defendant subject to flagrant abuse in his

growing-up years? Is he suffering from a severe physical

or mental impairment? Was he supportive of his family?

Is he remorseful? Estelle itself involved compelled state-

ments introduced to establish the defendant’s future

dangerousness—another fact often unrelated to the cir-

cumstances or details of a defendant’s crime. 451 U. S., at

456. In addition, States typically place the burden to

prove mitigating factors at the penalty phase on the de-

fendant. A reasonable jurist would not believe that Mitch-

ell, by refusing to create an exception to Estelle, intended

to undermine the very case it reaffirmed.

Mitchell held, simply and only, that the normal rule of

Estelle applied in the circumstances of the particular case

before the Court. That holding does not destabilize settled

Cite as: 572 U. S. ____ (2014) 5

BREYER, J., dissenting

law beyond its reach. We frequently resist reaching be-

yond the facts of a case before us, and we often say so.

That does not mean that we throw cases involving all

other factual circumstances into a shadow-land of legal

doubt.

The majority also places undue weight on dictum in

Mitchell reserving judgment as to whether to create addi-

tional exceptions to the normal rule of Estelle and Carter.

We noted: “Whether silence bears upon the determination

of a lack of remorse, or upon acceptance of responsibility

for purposes of the downward adjustment provided in

§3E1.1 of the United States Sentencing Guidelines (1998),

is a separate question. It is not before us, and we express

no view on it.” 526 U. S., at 330. This dictum, says the

majority, suggests that some inferences, including about

remorse (which was at issue in Woodall’s case), may be

permissible. Ante, at 5–7.

When the Court merely reserves a question that is “not

before us” for a future case, we do not cast doubt on legal

principles that are already clearly established. The Court

often identifies questions that it is not answering in order

to clarify the question it is answering. In so doing—that

is, in “express[ing] no view” on questions that are not

squarely before us—we do not create a state of uncertainty

as to those questions. And in respect to Mitchell, where

the Court reserved the question whether to create an

exception to the normal rule, this is doubly true. The

normal rule that a defendant is entitled to a requested no-

adverse-inference instruction at the penalty phase as well

as the guilt phase remained clearly established after

Mitchell.

III

In holding that the Kentucky courts did not unreasona-

bly apply clearly established law, the majority declares

that if a court must “extend” the rationale of a case in

6 WHITE v. WOODALL

BREYER, J., dissenting

order to apply it, the rationale is not clearly established.

Ante, at 9–11. I read this to mean simply that if there

may be “fairminded disagreement” about whether a ra-

tionale applies to a certain set of facts, a state court will

not unreasonably apply the law by failing to apply that

rationale, and I agree. See Harrington v. Richter, 562

U. S. ___ (2011). I do not understand the majority to

suggest that reading two legal principles together would

necessarily “extend” the law, which would be a proposition

entirely inconsistent with our case law. As long as fair-

minded jurists would conclude that two (or more) legal

rules considered together would dictate a particular out-

come, a state court unreasonably applies the law when it

holds otherwise. Ibid.

That is the error the Kentucky Supreme Court commit-

ted here. Failing to consider together the legal principles

established by Carter and Estelle, the state court confined

those cases to their facts. It held that Carter did not apply

because Woodall had already pleaded guilty—that is,

because Woodall requested a no-adverse-inference instruc-

tion at the penalty phase rather than the guilt phase of his

trial. Woodall v. Commonwealth, 63 S. W. 3d 104, 115

(Ky. 2001). And it concluded that Estelle did not apply

because Estelle was not a “jury instruction case.” 63 S. W.

3d, at 115. The Kentucky Supreme Court unreasonably

failed to recognize that together Carter and Estelle compel

a requested no-adverse-inference instruction at the penalty

phase of a capital trial. And reading Mitchell to rein in

the law in contemplation of never-before-recognized excep-

tions to this normal rule would be an unreasonable retrac-

tion of clearly established law, not a proper failure to

“extend” it. Because the Sixth Circuit correctly applied

clearly established law in granting Woodall’s habeas

petition, I would affirm.

With respect I dissent from the Court’s contrary

conclusion.