Wilson v. Sellers

(Slip Opinion) OCTOBER TERM, 2017 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

WILSON v. SELLERS, WARDEN

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

No. 16–6855. Argued October 30, 2017—Decided April 17, 2018

Petitioner Marion Wilson was convicted of murder and sentenced to

death. He sought habeas relief in Georgia Superior Court, claiming

that his counsel’s ineffectiveness during sentencing violated the Sixth

Amendment. The court denied the petition, in relevant part, because

it concluded that counsel’s performance was not deficient and had not

prejudiced Wilson. The Georgia Supreme Court summarily denied

his application for a certificate of probable cause to appeal. Wilson

subsequently filed a federal habeas petition, raising the same ineffec-

tive-assistance claim. The District Court assumed that his counsel

was deficient but deferred to the state habeas court’s conclusion that

any deficiencies did not prejudice Wilson. The Eleventh Circuit af-

firmed. First, however, the panel concluded that the District Court

was wrong to “look though” the State Supreme Court’s unexplained

decision and assume that it rested on the grounds given in the state

habeas court’s opinion, rather than ask what arguments “could have

supported” the State Supreme Court’s summary decision. The en

banc court agreed with the panel’s methodology.

Held: A federal habeas court reviewing an unexplained state-court de-

cision on the merits should “look through” that decision to the last re-

lated state-court decision that provides a relevant rationale and pre-

sume that the unexplained decision adopted the same reasoning.

The State may rebut the presumption by showing that the unex-

plained decision most likely relied on different grounds than the rea-

soned decision below. Pp. 5–11.

(a) In Ylst v. Nunnemaker, 501 U. S. 797, the Court held that

where there has been one reasoned state judgment rejecting a federal

claim, later unexplained orders upholding that judgment or rejecting

the same claim are presumed to rest upon the same ground. In Ylst,

2 WILSON v. SELLERS

Syllabus

where the last reasoned opinion on the claim explicitly imposed a

procedural default, the Court presumed that a later decision rejecting

the claim did not silently disregard that bar and consider the merits.

Since Ylst, every Circuit to have considered the matter, but for the

Eleventh Circuit, has applied a “look through” presumption even

where the state courts did not apply a procedural bar to review, and

most Circuits applied the presumption prior to Ylst. The presump-

tion is often realistic, for state higher courts often issue summary de-

cisions when they have examined the lower court’s reasoning and

found nothing significant with which they disagree. The presump-

tion also is often more efficiently applied than a contrary approach

that would require a federal court to imagine what might have been

the state court’s supportive reasoning.

The State argues that Harrington v. Richter, 562 U. S. 86, controls

here and that Ylst should apply, at most, where the federal habeas

court is trying to determine whether a state-court decision without

opinion rested on a state procedural ground or whether the state

court reached the merits of a federal issue. Richter, however, did not

directly concern the issue in this case—whether to “look through” the

silent state higher court opinion to the lower court’s reasoned opinion

in order to determine the reasons for the higher court’s decision. In

Richter, there was no lower court opinion to look to. And Richter does

not say that Ylst’s reasoning does not apply in the context of an un-

explained decision on the merits. Indeed, this Court has “looked

though” to lower court decisions in cases involving the merits. See,

e.g., Premo v. Moore, 562 U. S. 115, 123–133. Pp. 5–9.

(b) The State’s further arguments are unconvincing. It points out

that the “look though” presumption may not accurately identify the

grounds for a higher court’s decision. But the “look through” pre-

sumption is not an absolute rule. Additional evidence that might not

be sufficient to rebut the presumption in a case like Ylst, where the

lower court rested on a state-law procedural ground, would allow a

federal court to conclude that counsel has rebutted the presumption

in a case decided on the merits. For instance, a federal court may

conclude that the presumption is rebutted where counsel identifies

convincing alternative arguments for affirmance that were made to

the State’s highest court, or equivalent evidence such as an alterna-

tive ground that is obvious in the state-court record. The State also

argues that this Court does not necessarily presume that a federal

court of appeals’ silent opinion adopts the reasoning of the court be-

low, but that is a different context. Were there to be a “look through”

approach as a general matter in that context, judges and lawyers

might read those decisions as creating, through silence, binding cir-

cuit precedent. Here, a federal court “looks through” the silent deci-

Cite as: 584 U. S. ____ (2018) 3

Syllabus

sion for a specific and narrow purpose, to identify the grounds for the

higher court’s decision as the Antiterrorism and Effective Death Pen-

alty Act requires. Nor does the “look through” approach show disre-

spect for the States; rather, it seeks to replicate the grounds for the

higher state court’s decision. Finally, the “look though” approach is

unlikely to lead state courts to write full opinions where they would

have preferred to decide summarily, at least not to any significant

degree. Pp. 9–11.

834 F. 3d 1227, reversed and remanded.

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

C. J., and KENNEDY, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.

GORSUCH, J., filed a dissenting opinion, in which THOMAS and ALITO,

JJ., joined.

Cite as: 584 U. S. ____ (2018) 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. 16–6855

_________________

MARION WILSON, PETITIONER v. ERIC SELLERS,

WARDEN

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[April 17, 2018]

JUSTICE BREYER delivered the opinion of the Court.

The Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA) requires a prisoner who challenges (in a

federal habeas court) a matter “adjudicated on the merits

in State court” to show that the relevant state-court “deci-

sion” (1) “was contrary to, or involved an unreasonable

application of, clearly established Federal law,” or (2) “was

based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceed-

ing.” 28 U. S. C. §2254(d). Deciding whether a state

court’s decision “involved” an unreasonable application of

federal law or “was based on” an unreasonable determina-

tion of fact requires the federal habeas court to “train its

attention on the particular reasons—both legal and fac-

tual—why state courts rejected a state prisoner’s federal

claims,” Hittson v. Chatman, 576 U. S. ___, ___ (2015)

(GINSBURG, J., concurring in denial of certiorari) (slip op.,

at 1), and to give appropriate deference to that decision,

Harrington v. Richter, 562 U. S. 86, 101–102 (2011).

This is a straightforward inquiry when the last state

court to decide a prisoner’s federal claim explains its

2 WILSON v. SELLERS

Opinion of the Court

decision on the merits in a reasoned opinion. In that case,

a federal habeas court simply reviews the specific reasons

given by the state court and defers to those reasons if they

are reasonable. We have affirmed this approach time and

again. See, e.g., Porter v. McCollum, 558 U. S. 30, 39–44

(2009) (per curiam); Rompilla v. Beard, 545 U. S. 374,

388–392 (2005); Wiggins v. Smith, 539 U. S. 510, 523–538

(2003).

The issue before us, however, is more difficult. It con-

cerns how a federal habeas court is to find the state court’s

reasons when the relevant state-court decision on the

merits, say, a state supreme court decision, does not come

accompanied with those reasons. For instance, the deci-

sion may consist of a one-word order, such as “affirmed” or

“denied.” What then is the federal habeas court to do?

We hold that the federal court should “look through” the

unexplained decision to the last related state-court deci-

sion that does provide a relevant rationale. It should then

presume that the unexplained decision adopted the same

reasoning. 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 affir-

mance that were briefed or argued to the state supreme

court or obvious in the record it reviewed.

I

In 1997 a Georgia jury convicted petitioner, Marion

Wilson, of murder and related crimes. After a sentencing

hearing, the jury sentenced Wilson to death. In 1999 the

Georgia Supreme Court affirmed Wilson’s conviction and

sentence, Wilson v. State, 271 Ga. 811, 525 S. E. 2d 339

(1999), and this Court denied his petition for certiorari,

Wilson v. Georgia, 531 U. S. 838 (2000).

Wilson then filed a petition for habeas corpus in a state

court, the Superior Court for Butts County. Among other

Cite as: 584 U. S. ____ (2018) 3

Opinion of the Court

things, he claimed that his counsel was “ineffective” dur-

ing his sentencing, in violation of the Sixth Amendment.

See Strickland v. Washington, 466 U. S. 668, 687 (1984)

(setting forth “two components” of an ineffective-

assistance-of-counsel claim: “that counsel’s performance

was deficient” and “that the deficient performance preju-

diced the defense”). Wilson identified new evidence that

he argued trial counsel should have introduced at sentenc-

ing, namely, testimony from various witnesses about

Wilson’s childhood and the impairment of the frontal lobe

of Wilson’s brain.

After a hearing, the state habeas court denied the peti-

tion in relevant part because it thought Wilson’s evidence

did not show that counsel was “deficient,” and, in any

event, counsel’s failure to find and present the new evi-

dence that Wilson offered had not prejudiced Wilson.

Wilson v. Terry, No. 2001–v–38 (Super. Ct. Butts Cty.,

Ga., Dec. 1, 2008), App. 60–61. In the court’s view, that

was because the new evidence was “inadmissible on evi-

dentiary grounds,” was “cumulative of other testimony,” or

“otherwise would not have, in reasonable probability,

changed the outcome of the trial.” Id., at 61. Wilson

applied to the Georgia Supreme Court for a certificate of

probable cause to appeal the state habeas court’s decision.

But the Georgia Supreme Court denied the application

without any explanatory opinion. Wilson v. Terry, No.

2001–v–38 (May 3, 2010), App. 87, cert. denied, 562 U. S.

1093 (2010).

Wilson subsequently filed a petition for habeas corpus in

the United States District Court for the Middle District of

Georgia. He made what was essentially the same “ineffec-

tive assistance” claim. After a hearing, the District Court

denied Wilson’s petition. Wilson v. Humphrey, No. 5:10–

cv–489 (Dec. 19, 2013), App. 88–89. The court assumed

that Wilson’s counsel had indeed been “deficient” in failing

adequately to investigate Wilson’s background and physi-

4 WILSON v. SELLERS

Opinion of the Court

cal condition for mitigation evidence and to present what

he likely would have found at the sentencing hearing. Id.,

at 144. But, the court nonetheless deferred to the state

habeas court’s conclusion that these deficiencies did not

“prejudice” Wilson, primarily because the testimony of

many witnesses was “cumulative,” and because the evi-

dence of physical impairments did not include any physi-

cal examination or other support that would have shown

the state-court determination was “unreasonable.” Id., at

187; see Richter, 562 U. S., at 111–112.

Wilson appealed to the Court of Appeals for the Elev-

enth Circuit. Wilson v. Warden, 774 F. 3d 671 (2014). The

panel first held that the District Court had used the wrong

method for determining the reasoning of the relevant state

court, namely, that of the Georgia Supreme Court (the

final and highest state court to decide the merits of Wil-

son’s claims). Id., at 678. That state-court decision, the

panel conceded, was made without an opinion. But, the

federal court was wrong to “look through” that decision

and assume that it rested on the grounds given in the

lower court’s decision. Instead of “looking through” the

decision to the state habeas court’s opinion, the federal

court should have asked what arguments “could have

supported” the Georgia Supreme Court’s refusal to grant

permission to appeal. The panel proceeded to identify a

number of bases that it believed reasonably could have

supported the decision. Id., at 678–681.

The Eleventh Circuit then granted Wilson rehearing en

banc so that it could consider the matter of methodology.

Wilson v. Warden, 834 F. 3d 1227 (2016). Ultimately six

judges (a majority) agreed with the panel and held that its

“could have supported” approach was correct. Id., at 1235.

Five dissenting judges believed that the District Court

should have used the methodology it did use, namely, the

“look through” approach. Id., at 1242–1247, 1247–1269.

Wilson then sought certiorari here. Because the Eleventh

Cite as: 584 U. S. ____ (2018) 5

Opinion of the Court

Circuit’s opinion creates a split among the Circuits, we

granted the petition. Compare id., at 1285 (applying

“could have supported” approach), with Grueninger v.

Director, Va. Dept. of Corrections, 813 F. 3d 517, 525–526

(CA4 2016) (applying “look through” presumption post-

Richter), and Cannedy v. Adams, 706 F. 3d 1148, 1156–

1159 (CA9 2013) (same); see also Clements v. Clarke, 592

F. 3d 45, 52 (CA1 2010) (applying “look through” presump-

tion pre-Richter); Bond v. Beard, 539 F. 3d 256, 289–290

(CA3 2008) (same); Mark v. Ault, 498 F. 3d 775, 782–783

(CA8 2007) (same); Joseph v. Coyle, 469 F. 3d 441, 450

(CA6 2006) (same).

II

We conclude that federal habeas law employs a “look

through” presumption. That conclusion has parallels in

this Court’s precedent. In Ylst v. Nunnemaker, a defend-

ant, convicted in a California state court of murder, ap-

pealed his conviction to the state appeals court where he

raised a constitutional claim based on Miranda v. Arizona,

384 U. S. 436 (1966). 501 U. S. 797, 799–800 (1991). The

appeals court rejected that claim, writing that “ ‘an objec-

tion based upon a Miranda violation cannot be raised for

the first time on appeal.’ ” Id., at 799. The defendant then

similarly challenged his conviction in the California Su-

preme Court and on collateral review in several state

courts (including once again the California Supreme

Court). In each of these latter instances the state court

denied the defendant relief (or review). In each instance

the court did so without an opinion or other explanation.

Id., at 799–800.

Subsequently, the defendant asked a federal habeas

court to review his constitutional claim. Id., at 800. The

higher state courts had given no reason for their decision.

And this Court ultimately had to decide how the federal

court was to find the state court’s reasoning in those cir-

6 WILSON v. SELLERS

Opinion of the Court

cumstances. Should it have “looked through” the unrea-

soned decisions to the state procedural ground articulated

in the appeals court or should it have used a different

method?

In answering that question Justice Scalia wrote the

following for the Court:

“The problem we face arises, of course, because many

formulary orders are not meant to convey anything as

to the reason for the decision. Attributing a reason is

therefore both difficult and artificial. We think that

the attribution necessary for federal habeas purposes

can be facilitated, and sound results more often as-

sured, by applying the following presumption: Where

there has been one reasoned state judgment rejecting

a federal claim, later unexplained orders upholding

that judgment or rejecting the same claim rest upon

the same ground. If an earlier opinion ‘fairly ap-

pear[s] to rest primarily upon federal law,’ we will

presume that no procedural default has been invoked

by a subsequent unexplained order that leaves the

judgment or its consequences in place. Similarly

where, as here, the last reasoned opinion on the claim

explicitly imposes a procedural default, we will pre-

sume that a later decision rejecting the claim did not

silently disregard that bar and consider the merits.”

Id., at 803 (citation omitted).

Since Ylst, every Circuit to have considered the matter

has applied this presumption, often called the “look

through” presumption, but for the Eleventh Circuit—even

where the state courts did not apply a procedural bar to

review. See supra, at 4–5. And most Federal Circuits

applied it prior to Ylst. See Ylst, supra, at 803 (citing

Prihoda v. McCaughtry, 910 F. 2d 1379, 1383 (CA7 1990);

Harmon v. Barton, 894 F. 2d 1268, 1272 (CA11 1990);

Evans v. Thompson, 881 F. 2d 117, 123, n. 2 (CA4 1989);

Cite as: 584 U. S. ____ (2018) 7

Opinion of the Court

Ellis v. Lynaugh, 873 F. 2d 830, 838 (CA5 1989)).

That is not surprising in light of the fact that the “look

through” presumption is often realistic, for state higher

courts often (but certainly not always, see Redmon v.

Johnson, 2018 WL 415714 (Ga., Jan. 16, 2018)) write

“denied” or “affirmed” or “dismissed” when they have

examined the lower court’s reasoning and found nothing

significant with which they disagree.

Moreover, a “look through” presumption is often (but not

always) more efficiently applied than a contrary ap-

proach—an approach, for example, that would require a

federal habeas court to imagine what might have been the

state court’s supportive reasoning. The latter task may

prove particularly difficult where the issue involves state

law, such as state procedural rules that may constrain the

scope of a reviewing court’s summary decision, a matter in

which a federal judge often lacks comparative expertise.

See Ylst, supra, at 805.

The State points to a later case, Harrington v. Richter,

562 U. S. 86 (2011), which, it says, controls here instead of

Ylst. In its view, Ylst should apply, at most, to cases in

which the federal habeas court is trying to determine

whether a state-court decision without opinion rested on a

state procedural ground (for example, a procedural de-

fault) or whether the state court has reached the merits of

a federal issue. In support, it notes that Richter held that

the state-court decisions to which AEDPA refers include

summary dispositions, i.e., decisions without opinion.

Richter added that “determining whether a state court’s

decision resulted from an unreasonable legal or factual

conclusion does not require that there be an opinion from

the state court explaining the state court’s reasoning.”

562 U. S., at 98.

Richter then said that, 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 reason-

8 WILSON v. SELLERS

Opinion of the Court

able basis for the state court to deny relief.” Ibid. And the

Court concluded that, when “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.” Id., at 99.

In our view, however, Richter does not control here. For

one thing, Richter did not directly concern the issue before

us—whether to “look through” the silent state higher court

opinion to the reasoned opinion of a lower court in order to

determine the reasons for the higher court’s decision.

Indeed, it could not have considered that matter, for in

Richter, there was no lower court opinion to look to. That

is because the convicted defendant sought to raise his

federal constitutional claim for the first time in the Cali-

fornia Supreme Court (via a direct petition for habeas

corpus, as California law permits). Id., at 96.

For another thing, Richter does not say the reasoning of

Ylst does not apply in the context of an unexplained deci-

sion on the merits. To the contrary, the Court noted that

it was setting forth a presumption, which “may be over-

come when there is reason to think some other explana-

tion for the state court’s decision is more likely.” Richter,

supra, at 99–100. And it referred in support to Ylst, 501

U. S., at 803.

Further, we have “looked through” to lower court deci-

sions in cases involving the merits. See, e.g., Premo v.

Moore, 562 U. S. 115, 123–133 (2011); Sears v. Upton,

561 U. S. 945, 951–956 (2010) (per curiam). Indeed, we de-

cided one of those cases, Premo, on the same day we decided

Richter. And in our opinion in Richter we referred to

Premo. 562 U. S., at 91. Had we intended Richter’s “could

have supported” framework to apply even where there is a

reasoned decision by a lower state court, our opinion in

Premo would have looked very different. We did not even

cite the reviewing state court’s summary affirmance.

Cite as: 584 U. S. ____ (2018) 9

Opinion of the Court

Instead, we focused exclusively on the actual reasons

given by the lower state court, and we deferred to those

reasons under AEDPA. 562 U. S., at 132 (“The state

postconviction court’s decision involved no unreasonable

application of Supreme Court precedent”).

III

The State’s further arguments do not convince us. The

State points out that there could be many cases in which a

“look through” presumption does not accurately identify

the grounds for the higher court’s decision. And we agree.

We also agree 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 than,

e.g., where the lower court rested on a state-law proce-

dural ground, as in Ylst. But that is why we have set forth a

presumption and not an absolute rule. And the unreason-

ableness of the lower court’s decision itself provides some

evidence that makes it less likely the state supreme court

adopted the same reasoning. Thus, additional evidence

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 in a case like this

one. For instance, a federal habeas court may conclude

that counsel has rebutted the presumption on the basis of

convincing alternative arguments for affirmance made to

the State’s highest court or equivalent evidence presented

in its briefing to the federal court similarly establishing

that the State’s highest court relied on a different ground

than the lower state court, such as the existence of a valid

ground for affirmance that is obvious from the state-court

record. The dissent argues that the Georgia Supreme

Court’s recent decision in Redmon v. Johnson rebuts the

presumption in Georgia because that court indicated its

summary decisions should not be read to adopt the lower

court’s reasoning. Post, at 6–8, 10–11 (opinion of

10 WILSON v. SELLERS

Opinion of the Court

GORSUCH, J.). This misses the point. A presumption that

can be rebutted by evidence of, for instance, an alternative

ground that was argued or that is clear in the record was

the likely basis for the decision is in accord with full and

proper respect for state courts, like those in Georgia,

which have well-established systems and procedures in

place in order to ensure proper consideration to the argu-

ments and contention in the many cases they must process

to determine whether relief should be granted when a

criminal conviction or its ensuing sentence is challenged.

The State also points out that we do not necessarily

presume that a silent opinion of a federal court of appeals

adopts the reasoning of the court below. The dissent

similarly invokes these “traditional rules of appellate

practice.” See post, at 5–6, 10. But neither the State nor

the dissent provides examples of similar context. Were we

to adopt a “look through” approach in respect to silent

federal appeals court decisions as a general matter in

other contexts, we would risk judges and lawyers reading

those decisions as creating, through silence, a precedent

that could be read as binding throughout the circuit—just

what a silent decision may be thought not to do. Here,

however, we “look through” the silent decision for a spe-

cific and narrow purpose—to identify the grounds for the

higher court’s decision, as AEDPA directs us to do. See

supra, at 1–2. We see no reason why the federal court’s

interpretation of the state court’s silence should be taken

as binding precedent outside this context, for example, as

a statewide binding interpretation of state law.

Further, the State argues that the “look through” ap-

proach shows disrespect for the States. See Brief for

Respondent 39 (“Wilson’s approach to summary decisions

reflects an utter lack of faith in the ability of the highest

state courts to adjudicate constitutional rights”). We do

not believe this is so. Rather the presumption seeks to

replicate the grounds for the higher state court’s decision.

Cite as: 584 U. S. ____ (2018) 11

Opinion of the Court

Where there are convincing grounds to believe the silent

court had a different basis for its decision than the analy-

sis followed by the previous court, the federal habeas court

is free, as we have said, to find to the contrary. In our

view, this approach is more likely to respect what the

state court actually did, and easier to apply in practice,

than to ask the federal court to substitute for silence the

federal court’s thought as to more supportive reasoning.

Finally, the State argues that the “look through” ap-

proach will lead state courts to believe they must write full

opinions where, given the workload, they would have

preferred to have decided summarily. Though the matter

is empirical, given the narrowness of the context, we do

not believe that they will feel compelled to do so—at least

not to any significant degree. The State offers no such

evidence in the many Circuits that have applied Ylst

outside the procedural context. See supra, at 5.

For these reasons, we reverse the Eleventh Circuit’s

judgment and remand the case for further proceedings

consistent with this opinion.

It is so ordered.

Cite as: 584 U. S. ____ (2018) 1

GORSUCH, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 16–6855

_________________

MARION WILSON, PETITIONER v. ERIC SELLERS,

WARDEN

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[April 17, 2018]

JUSTICE GORSUCH, with whom JUSTICE THOMAS and

JUSTICE ALITO join, dissenting.

After a state supreme court issues a summary order

sustaining a criminal conviction, should a federal habeas

court reviewing that decision presume it rests only on the

reasons found in a lower state court opinion? The answer

is no. The statute governing federal habeas review per-

mits no such “look through” presumption. Nor do tradi-

tional principles of appellate review. In fact, we demand

the opposite presumption for our work—telling readers

that we independently review each case and that our

summary affirmances may be read only as signaling

agreement with a lower court’s judgment and not neces-

sarily its reasons. Because I can discern no good reason to

treat the work of our state court colleagues with less

respect than we demand for our own, I would reject peti-

tioner’s presumption and must respectfully dissent.

Even so, some good news can be found here. While the

Court agrees to adopt a “look through” presumption, it

does so only after making major modifications to petition-

er’s proposal. The Court tells us that the presumption

should count for little in cases “where the lower state court

decision is unreasonable” because it is not “likely” a state

supreme court would adopt unreasonable reasoning.

Ante, at 9. In cases like that too, the Court explains,

2 WILSON v. SELLERS

GORSUCH, J., dissenting

federal courts remain free to sustain state court convic-

tions whenever reasonable “ground[s] for affirmance [are]

obvious from the state-court record” or appear in the

parties’ submissions in state court or the federal habeas

proceeding. Ibid. Exactly right, and exactly what the law

has always demanded. So while the Court takes us on a

journey through novel presumptions and rebuttals, it

happily returns us in the end very nearly to the place

where we began and belonged all along.

*

To see the problem with petitioner’s presumption, start

with the statute. The Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA) governs federal review of

state criminal convictions. It says a federal court may not

grant habeas relief overturning a state court conviction

“with respect to any claim that was adjudicated on the

merits in State court proceedings” unless (among other

things) the petitioner can show that the state court pro-

ceedings “resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly estab-

lished Federal law.” 28 U. S. C. §2254(d)(1). As the text

and our precedent make clear, a federal habeas court must

focus its review on the final state court decision on the

merits, not any preceding decision by an inferior state

court. See Greene v. Fisher, 565 U. S. 34, 40 (2011). Nor

does it matter whether the final state court decision comes

with a full opinion or in a summary order: the same defer-

ence is due all final state court decisions. Harrington v.

Richter, 562 U. S. 86, 98 (2011); Cullen v. Pinholster, 563

U. S. 170, 187 (2011).

The upshot of these directions is clear. Even when the

final state court decision “is unaccompanied by an expla-

nation, the habeas petitioner’s burden still must be met by

showing there was no reasonable basis for the state court

to deny relief.” Richter, 562 U. S., at 98 (emphasis added).

Cite as: 584 U. S. ____ (2018) 3

GORSUCH, J., dissenting

And before a federal court can disregard a final summary

state court decision, it “must determine what arguments

or theories . . . could have supporte[d] the state court’s

decision; and then it must ask whether it is possible fair-

minded jurists could disagree that those arguments or

theories are inconsistent with the holding in a prior deci-

sion of this Court.” Id., at 102 (emphasis added). Far

from suggesting federal courts should presume a state

supreme court summary order rests on views expressed in

a lower court’s opinion, then, AEDPA and our precedents

require more nearly the opposite presumption: federal

courts must presume the order rests on any reasonable

basis the law and facts allow.

If this standard seems hard for a habeas petitioner to

overcome, “that is because it was meant to be.” Ibid. In

AEDPA, Congress rejected the notion that federal habeas

review should be “a substitute for ordinary error correc-

tion.” Id., at 102–103. Instead, AEDPA “reflects the view

that habeas corpus is a ‘guard against extreme malfunc-

tions in the state criminal justice systems.’ ” Id., at 102

(emphasis added). “The reasons for this approach are

familiar. ‘Federal habeas review of state convictions

frustrates both the States’ sovereign power to punish

offenders and their good-faith attempts to honor constitu-

tional rights.’ It ‘disturbs the State’s significant interest

in repose for concluded litigation, denies society the right

to punish some admitted offenders, and intrudes on state

sovereignty to a degree matched by few exercises of federal

judicial authority.’ ” Id., at 103 (citations omitted).

Petitioner and the Court today labor to distinguish

these authorities, but I don’t see how they might succeed.

They point to the fact that in Richter no state court had

issued a reasoned order, while here a lower state court

did. See Brief for Petitioner 28–30; ante, at 8. But on

what account of AEDPA or Richter does that factual dis-

tinction make a legal difference? Both the statute and our

4 WILSON v. SELLERS

GORSUCH, J., dissenting

precedent explain that federal habeas review looks to the

final state court decision, not any decision preceding it.

Both instruct that to dislodge the final state court decision

a petitioner must prove it involved an unreasonable appli-

cation of federal law. And to carry that burden in the face

of a final state court summary decision, Richter teaches

that the petitioner must show no lawful basis could have

reasonably supported it. To observe that some final state

court summary decisions are preceded by lower court

reasoned opinions bears no more relevance to the AEDPA

analysis than to say that some final state court summary

decisions are issued on Mondays. 1

Unable to distinguish Richter, petitioner seeks to con-

fine it by caricature. Because that case requires a federal

court to “imagine” its own arguments for denying habeas

relief and engage in “decision-making-by-hypothetical,” he

argues it should be limited to its facts. Brief for Petitioner

28–30, 33; Reply Brief 9. But the Court today does not

adopt petitioner’s characterization, and for good reason:

Richter requires no such thing. In our adversarial system

——————

1 Petitioner and the Court separately suggest that Premo v. Moore,

562 U. S. 115 (2011), supports their position because the Court there

did not follow Richter’s approach. See Brief for Petitioner 40; ante, at

8–9. But the following sentences from Moore (with emphasis added)

are clear proof it did: “ ‘[t]he question is whether there is any reasonable

argument that counsel satisfied Strickland’s deferential standard,’ ” 562

U. S., at 123 (quoting Richter); “[t]o overcome the limitation imposed by

§2254(d), the Court of Appeals had to conclude that both findings [i.e.,

no deficient performance and no prejudice] would have involved an

unreasonable application of clearly established law,” ibid. (citing

Richter); “[t]he state court here reasonably could have determined that

[no prejudice existed],” id., at 129. Moore simply found that a reason-

able basis—provided by a state postconviction court—could (and did)

support the denial of habeas relief. Id., at 123. It did not rely on an

unreasonable basis provided by a lower court to grant habeas relief, as

petitioner seeks to have us do. Moore thus accords with AEDPA and

our precedents, while petitioner’s presumption does not.

Cite as: 584 U. S. ____ (2018) 5

GORSUCH, J., dissenting

a federal court generally isn’t required to imagine or hy-

pothesize arguments that neither the parties before it nor

any lower court has presented. To determine if a reason-

able basis “could have supported” a summary denial of

habeas relief under Richter, a federal court must look to

the state lower court opinion (if there is one), any argu-

ment presented by the parties in the state proceedings,

and any argument presented in the federal habeas pro-

ceeding. Of course, a federal court sometimes may con-

sider on its own motion alternative bases for denying habeas

relief apparent in the law and the record, but it does not

generally bear an obligation to do so. See Wood v. Mil-

yard, 566 U. S. 463, 471–473 (2012) (discussing Day v.

McDonough, 547 U. S. 198 (2006), and Granberry v. Greer,

481 U. S. 129 (1987)).

Nor is that the end of the problems with petitioner’s

“look through” presumption. It also defies traditional

rules of appellate practice that informed Congress’s work

when it adopted AEDPA and that should inform our work

today. McQuiggin v. Perkins, 569 U. S. 383, 398, n. 3

(2013). Appellate courts usually have an independent

duty to review the facts and law in the cases that come to

them. Often they see errors in lower court opinions. But

often, too, they may affirm on alternative bases either

argued by the parties or (sometimes) apparent to them on

the face of the record. See, e.g., SEC v. Chenery Corp., 318

U. S. 80, 88 (1943) (noting “the settled rule that, in review-

ing the decision of a lower court, it must be affirmed if the

result is correct ‘although the lower court relied upon a

wrong ground or gave a wrong reason’ ”); Wood, supra, at

473. And a busy appellate court sometimes may not see

the profit in devoting its limited resources to explaining

the error and the alternative basis for affirming when the

outcome is sure to remain the same, so it issues a sum-

mary affirmance instead. To reflect these realities, this

Court has traditionally warned readers against presuming

6 WILSON v. SELLERS

GORSUCH, J., dissenting

our summary affirmance orders rest on reasons articulated

in lower court opinions. Comptroller of Treasury of Md.

v. Wynne, 575 U. S. ___, ___–___ (2015) (slip op., at 16–17)

(“ ‘[A] summary affirmance is an affirmance of the judg-

ment only,’ and ‘the rationale of the affirmance may not be

gleaned solely from the opinion below’ ”); Mandel v. Brad-

ley, 432 U. S. 173, 176 (1977) (per curiam). The courts of

appeals have issued similar warnings for similar reasons

about their own summary orders. See, e.g., Rates Tech-

nology, Inc. v. Mediatrix Telecom, Inc., 688 F. 3d 742, 750

(CA Fed. 2012); DeShong v. Seaboard Coast Line R. Co.,

737 F. 2d 1520, 1523 (CA11 1984). And respect for this

traditional principle of appellate practice surely weighs

against presuming a state court’s summary disposition

rests solely on a lower court’s opinion. On what account

could we reasonably demand more respect for our sum-

mary decisions than we are willing to extend to those of

our state court colleagues?

Petitioner and the Court offer only this tepid reply.

They suggest that their “look through” presumption seeks

to reflect “realistic[ally]” the basis on which the state

summary decision rests. See Brief for Petitioner 44; ante,

at 7. But to the extent this is a claim that their presump-

tion comports realistically with longstanding traditions of

appellate practice, it is wrong for the reasons just laid out.

In fact, applying traditional understandings of appellate

practice, this Court has refused to presume that state

appellate courts even read lower court opinions rather

than just the briefs before them. See Baldwin v. Reese,

541 U. S. 27, 31 (2004). And surely it is a mystery how the

Court might today presume state supreme courts rely on

that which it traditionally presumes they do not read.

If the argument here is instead an empirical claim that

the “look through” presumption comports realistically with

what happened in this case and others like it, it is wrong

too. Petitioner was convicted in Georgia. And during the

Cite as: 584 U. S. ____ (2018) 7

GORSUCH, J., dissenting

pendency of this case in our Court, the Georgia Supreme

Court issued an order confirming that lower courts in that

State may not “presum[e] that when this Court summarily

denies an application to appeal an order denying habeas

corpus relief, we necessarily agree with everything said in

that order.” Redmon v. Johnson, 809 S. E. 2d 468, 472

(Ga. 2018). The court explained that it has long followed

just this rule for all the reasons you’d expect. It inde-

pendently reviews the facts and law in each habeas case.

If it finds something it thinks might amount to a conse-

quential error, the court sets the case for argument and

usually prepares a full opinion. But “[o]n many occa-

sions,” the court finds only “inconsequential errors.” Id.,

at 471. 2 And in these cases the court normally issues a

——————

2 Inlanguage that will sound familiar to all judges and lawyers in-

volved in litigating habeas claims, the Georgia Supreme Court ex-

plained that “[t]here are many examples of inconsequential errors, but

among the most common are the following:

• The habeas court rejects a claim both on a procedural ground and,

alternatively, on the substantive merits. This Court determines

that one of those rulings appears factually or legally erroneous, but

the other is correct, so an appeal would result in the habeas court’s

judgment being affirmed on the correct ground.

• In addressing an ineffective assistance of counsel claim under

Strickland v. Washington, 466 U. S. 668 (1984), the habeas court

rules that counsel did not perform deficiently as alleged. That rul-

ing appears to be erroneous, but this Court determines based on

our review of the record that no prejudice resulted from the defi-

cient performance, so an appeal would result in affirming the ha-

beas court’s judgment. See id., at 697; Rozier v. Caldwell, 300 Ga.

30, 31–32 (2016).

• In addressing other claims that require the petitioner to prove each

element of a multi-part test, such as a claim under Brady v. Mary-

land, 373 U. S. 83 (1963), the habeas court makes factual or legal

errors regarding the petitioner’s proof of one element but correctly

concludes (or the record clearly shows) that the petitioner has not

proved another required element. An appeal would result in this

Court’s affirming the habeas court’s judgment.

8 WILSON v. SELLERS

GORSUCH, J., dissenting

summary affirmance because the costs associated with full

treatment of the appeal outweigh the benefits of correcting

what is at most harmless error, especially given the court’s

heavy caseload and the need to attend to more consequen-

tial matters. 3 Petitioner’s presumption thus does not seek

to reflect reality; it seeks to deny it.

The presumption is especially unrealistic in another

way. The Court and petitioner presume that a summary

order by a state supreme court adopts all the specific

reasons expressed by a lower state court. In doing so, they

disregard a far more realistic possibility: that the state

supreme court might have relied only on the same grounds

for the denial of relief as did the lower court without nec-

essarily adopting all its reasoning. Here, the lower state

court denied petitioner’s Strickland claim on the grounds

that counsel’s performance was not deficient and peti-

tioner suffered no prejudice. And it gave several reasons for

——————

•The habeas court misstates a legal standard in one part of its or-

der, but recites the standard correctly elsewhere in the order, and

it is clear that the judgment is correct applying the right standard.

• In addressing a habeas petition with multitudinous claims, the

habeas court’s order fails to explicitly rule on a claim, but the rec-

ord shows that the claim is entirely meritless.” Redmon, 809

S. E. 2d, at 471 (some citations omitted).

3 “[T]he burdens of invoking the full appellate process, including writ-

ing opinions simply to point out factual or legal errors that do not affect

the judgment, are significant for this Court. We issue about 350

published opinions each year, all en banc, meaning that each Justice

(seven of us until 2017, nine now) must evaluate an opinion a day and

author 35 to 50 majority opinions a year, with the help of only two law

clerks in each chambers. Moreover, the Georgia Constitution requires

this Court to issue its decision within the two terms of court after an

appeal is docketed (which means within about eight months, given our

three terms per year). . . . And our reasoned decisions are precedent

binding on all other Georgia courts, . . . so issuing opinions where the

relevant law is already well-established runs the risk of creating

inconsistencies.” Redmon, 809 S. E. 2d, at 472.

Cite as: 584 U. S. ____ (2018) 9

GORSUCH, J., dissenting

its conclusions: for example, the evidence petitioner sought

to admit “would have been inadmissible on evidentiary

grounds, cumulative of other testimony, or otherwise

would not have, in reasonable probability, changed the

outcome of the trial.” App. 61. In summarily denying

relief, the state supreme court might have reached the

same conclusions (no deficient performance and no preju-

dice) without resting on the exact same reasons.

While the “look through” presumption cannot be

squared with AEDPA’s text, traditional rules, or Georgia’s

actual practice, petitioner and the Court contend it is at

least consistent with Ylst v. Nunnemaker, 501 U. S. 797

(1991). See Brief for Petitioner 38; ante, at 5–8. But it is

not. In habeas review of state court convictions, federal

courts may only review questions of federal law. So if a

state court decision rejecting a petitioner’s federal law

claim rests on a state procedural defect (say the petitioner

filed too late under state rules), federal courts generally

have no authority to reach the federal claim. Ylst simply

teaches that, if a lower state court opinion expressly relied

on an independent and adequate state ground, we should

presume a later state appellate court summary disposition

invoked it too. See 501 U. S., at 801, 803. The decision

thus seeks to protect state court decisions from displace-

ment and reaches a result consistent with the traditional

rule that a summary order invokes all fairly presented

bases for affirmance.

Neither can Ylst be reimagined today as meaning any-

thing more. The case came years before AEDPA’s new

standards for habeas review and can offer nothing useful

about them. The work of interpreting AEDPA’s demands

was left instead to Richter. And, as we’ve seen, Richter

forecloses petitioner’s presumption. Of course, and as

petitioner stresses, Richter didn’t overrule Ylst. But that’s

for the simple reason that Ylst continues to do important,

if limited, work in the disposition of procedural default

10 WILSON v. SELLERS

GORSUCH, J., dissenting

claims because “AEDPA did not change the application of

pre-AEDPA procedural default principles.” B. Means,

Federal Habeas Manual §9B:3 (2017).

Uncomfortable questions follow too from any effort to

reimagine Ylst. If we were to take Ylst as suggesting that

summary decisions presumptively rely only on the reasons

found in lower court opinions, wouldn’t we have to over-

rule our many precedents like Wynne and Mandel that

explicitly reject any such presumption? Wouldn’t circuit

courts have to discard their own similar precedents? See

supra, at 5–6. Consistency would seem to demand no less.

The only answer petitioner and the Court offer is no

answer at all. Consistency, they suggest, is overrated.

Everywhere else in the law we should retain the usual rule

that a summary affirmance can’t be read as presumptively

resting on the lower court’s reasons. They encourage us to

use Ylst only as a tool for making a special exception for

AEDPA cases: here and here alone should we adopt peti-

tioner’s “look through” presumption. Brief for Petitioner

18, 20; ante, at 10 (stating that “we ‘look through’ the

silent decision for a specific and narrow purpose” under

AEDPA). But just stating this good-for-habeas-only rule

should be enough to reject it. Summary orders that hap-

pen to arise in state habeas cases should receive no less

respect than those that arise anywhere else in the law. If

anything, they should receive more respect, because federal

habeas review of state court decisions “ ‘intrudes on

state sovereignty to a degree matched by few exercises of

federal judicial authority.’ ” Richter, 562 U. S., at 103.

*

Petitioner’s novel presumption not only lacks any prov-

enance in the law, it promises nothing for its trouble.

Consider the most obvious question it invites, one sug-

gested by the facts of our own case: what happens when a

state supreme court issues an order explaining that its

Cite as: 584 U. S. ____ (2018) 11

GORSUCH, J., dissenting

summary affirmances do not necessarily adopt the reasons

in lower court opinions? Should that be enough to rebut

the “look through” presumption? After defending the

presumption, even the dissent in the Eleventh Circuit

decision under review recognized that a disclaimer along

these lines should suffice to rebut it. See Wilson v. War-

den, 834 F. 3d 1227, 1263 (2016) (en banc) (opinion of J.

Pryor, J.) (“The Georgia Supreme Court could simply issue

a one-line order denying an application for a certificate of

probable cause that indicates agreement with the result

the superior court reached but not the lower court’s rea-

sons for rejecting the petitioner’s claim”). And, of course,

the Georgia Supreme Court has recently responded to the

dissent’s invitation by issuing just such a disclaimer. So

in the end petitioner’s presumption seems likely to accom-

plish nothing for him and only needless work for others—

inducing more state supreme courts to churn out more

orders restating the obvious fact that their summary

dispositions don’t necessarily rest on the reasons given by

lower courts. Along the way, too, it seems federal courts

will have their hands full. For while the Eleventh Circuit

dissent had no difficulty acknowledging that an order like

Georgia’s suffices to overcome petitioner’s presumption,

the Court today refuses to supply the same obvious

answer.

Consider, too, the questions that would follow in the

unlikely event a general order like the one from the Geor-

gia Supreme Court wasn’t considered enough to overcome

petitioner’s presumption. Quickly federal courts would be

forced to decide: does the “look through” presumption

survive even when a state supreme court includes lan-

guage in every summary order explaining that its decision

does not necessarily adopt the reasoning below? What if

the state supreme court says something slightly different

but to the same effect, declaring in each case that it has

independently considered the relevant law and evidence

12 WILSON v. SELLERS

GORSUCH, J., dissenting

before denying relief? And if we start dictating what state

court disclaimers should look like and where they should

appear, what exactly is left of Congress’s direction that

our review is intended to guard only against “ ‘extreme

malfunctions’ ” in state criminal justice systems? Richter,

supra, at 102. Wouldn’t we be slipping into the business of

“tell[ing] state courts how they must write their opinions,”

something this Court has long said federal habeas courts

“have no power” to do? Coleman v. Thompson, 501 U. S.

722, 739 (1991).

Apart from whether a (general or case-specific) order

from a state supreme court suffices to overcome petition-

er’s presumption, there’s the question what else might.

Say a lower state court opinion includes an error but the

legal briefs or other submissions presented to the state

supreme court supply sound alternative bases for affir-

mance. In those circumstances, should a federal habeas

court really presume that the state supreme court chose to

repeat the lower court’s mistake rather than rely on the

solid grounds argued to it by the parties? What if a sound

alternative basis for affirmance is presented for the first

time in the parties’ federal habeas submissions: are we to

presume that the state supreme court was somehow less

able to identify a reasonable basis for affirmance than

federal habeas counsel?

Here at least the Court does offer an answer. Petitioner

insists that federal courts should presume that state

supreme court summary orders rest on unreasonable lower

state court opinions even in the face of reasonable alterna-

tive arguments presented to the state supreme court or in

federal habeas proceedings. But seeming to recognize the

unreasonableness of this request, the Court opts to re-

shape radically petitioner’s proposed presumption before

adopting it. First, the Court states 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

Cite as: 584 U. S. ____ (2018) 13

GORSUCH, J., dissenting

unreasonable.” Ante, at 9. Then, the Court proceeds to

explain that “a federal habeas court may conclude that

counsel has rebutted the presumption on the basis of

convincing alternative arguments for affirmance made to

the State’s highest court or equivalent evidence presented

in its briefing to the federal court similarly establishing

that the State’s highest court relied on a different ground

than the lower state court, such as the existence of a valid

ground for affirmance that is obvious from the state-court

record.” Ibid.

The Court’s reshaping of petitioner’s presumption re-

veals just how futile this whole business really is. If, as

the Court holds, the “look through” presumption can be

rebutted “where the lower state court decision is unrea-

sonable,” ibid., it’s hard to see what good it does. Peti-

tioner sought to assign unreasonable lower court opinions to

final state court summary decisions. To hear now that

essentially only reasonable (and so sustainable) lower

state court opinions are presumptively adopted by final

state court summary decisions will surely leave him sour

on this journey and federal habeas courts scratching their

heads about the point of it all. And if, as the Court also

tells us, a federal habeas court can always deny relief on a

basis that is apparent from the record or on the basis of

alternative arguments presented by the parties in state or

federal proceedings, then the “look through” presumption

truly means nothing and we are back where we started.

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.

All this is welcome news of a sort. The Court may prom-

ise us a future of foraging through presumptions and

rebuttals. But at least at the end of it we rest knowing

that what was true before remains true today: a federal

14 WILSON v. SELLERS

GORSUCH, J., dissenting

habeas court should look at all the arguments presented in

state and federal court and examine the state court record.

And a federal habeas court should sustain a state court

summary decision denying relief if those materials reveal

a basis to do so reasonably consistent with this Court’s

holdings. Exactly what a federal court applying the stat-

ute and Richter has had to do all along. See supra, at 2–5.

And exactly what the Eleventh Circuit correctly held it

had to do in this case.

*

Today, petitioner invites us to adopt a novel presump-

tion that AEDPA, traditional principles of appellate re-

view, and Georgia practice all preclude. It’s an invitation

that requires us to treat the work of state court colleagues

with disrespect we would not tolerate for our own. And all

to what end? None at all, it turns out. As modified by the

Court, petitioner’s presumption nearly drops us back

where we began, with only trouble to show for the effort.

Respectfully, I would decline the invitation to this circui-

tous journey and just affirm.