Childers v. Floyd

WILSON, Circuit Judge,

concurring in the judgment:

I concur in the majority’s result because I do not believe the trial court’s limited restriction on cross-examination constituted a violation of Childers’s Sixth Amend *981 ment rights. However, I write separately to object to the majority’s overbroad and unnecessary formulation of what constitutes an “adjudication on the merits” under AEDPA — one that adds nothing to existing precedent and risks leaving a segment of properly presented federal constitutional claims without any true merits adjudication at all.

* * *

The majority declares that this case calls upon us to decide what constitutes an adjudication on the merits of a federal constitutional claim. Given that task, we should define our terms.

A “claim” arises from the relationship between a set of facts and a legal right. 1 When asserted by a claimant in a court of law as a basis for legal or equitable relief, it falls to the court to “adjudicate” — meaning, rule upon 2 — that claim. An adjudication “on the merits” of a claim is a ruling based on the court’s evaluation of whether those facts pled or proven (depending on the case’s posture) entitle a claimant to relief under the prevailing legal rule or standard defining the scope of the relevant right’s protection. 3 If a court fails to conduct this evaluation, there can be no adjudication on the merits.

Unfortunately, it is sometimes difficult to ascertain whether a court has undertaken the evaluation necessary to adjudicate the merits of a particular claim. In the habeas context, for example, many state courts — faced with unmanageably large caseloads — routinely deny straightforward post-conviction claims without written opinions, so that they might focus more of their finite resources on the cases presenting the most difficult questions. In Wright v. Secretary for Department of Corrections, we decided that these so-called “summary” dismissals constitute adjudications on the merits, warranting deferential federal review under AEDPA. 278 F.3d 1245, 1254 (11th Cir.2002). Earlier this year, the Supreme Court ratified our approach, declaring:

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.

Harrington v. Richter, — U.S. ——, 181 S.Ct. 770 , 784-85, 178 L.Ed.2d 624 (2011).

As the Supreme Court plainly stated, once a claim for relief has been presented to, and denied by, a state court, we are to presume that a state court adjudicated the merits of that claim in the absence of either of two things: “any indication or state-law procedural principles to the contrary.” Id. (emphasis added). Today, the majority reads out the disjunctive and extends Richter’s, presumption to all claims presented to the state court, excepting only those denied purely on procedural grounds and eliminating any provision for non-procedural “indications” that a state *982 court failed to actually adjudicate the merits of a claim. In the words of the majority, “[A]n ‘adjudication on the merits’ is best defined as any state court decision that does not rest solely on a state procedural bar.” Majority Op. at 968 (emphasis added). 4 Or, as rephrased later in that paragraph, “[U]nless the state court clearly states that its decision was based solely on a state procedural rule, we will presume that the state court has rendered an adjudication on the merits when the petitioner’s claim ‘is the same claim rejected’ by the state court.” Id. at 969 (quoting Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362 , 154 L.Ed.2d 263 (2002) (per curiam)). 5

Though this sweeping rule is both clear and easily administrable, it ignores the basic elements that comprise an actual adjudication on the merits (discussed above) and unnecessarily conflicts with a segment of our Circuit’s doctrine, as well as Supreme Court case law, that strives to strike an honest balance between respecting the prerogatives of the state courts while ensuring that every habeas petitioner has an actual and meaningful opportunity to seek redress for constitutional violations. 6 See Rompilla v. Beard, 545 U.S. 374, 390 , 125 S.Ct. 2456 , 162 L.Ed.2d 360 (2005); Wiggins v. Smith, 539 U.S. 510, 534 , 123 S.Ct. 2527 , 156 L.Ed.2d 471 (2003); Hammond v. Hall, 586 F.3d 1289, 1306 (11th Cir.2009); Espy v. Massac, 443 F.3d 1362, 1364-65 (11th Cir.2006); Davis v. Sec’y for Dept. of Corrs., 341 F.3d 1310, 1313 (11th Cir.2003) (per curiam); Romine v. Head, 253 F.3d 1349 , 1365 (11th Cir. 2001).

The majority offers virtually no explanation for its alteration of Richter. However, based on its citations to authority, the *983 majority’s definition of what constitutes an adjudication on the merits appears to rely heavily on the Supreme Court’s opinion in Early v. Packer, 537 U.S. 3 , 123 S.Ct. 362 , 154 L.Ed.2d 263 (2002) (per curiam). See Majority Op. at 968-69. I believe that reliance is misplaced.

In Early , the petitioner, Packer, claimed a due process violation based on allegedly coercive remarks made by the trial judge during a prolonged and lopsided jury deliberation. 537 U.S. at 6 , 123 S.Ct. 362 . Announcing that the state court need not cite or even be aware of federal case law in order for its decision to garner deference under AEDPA, the Early Court reversed the Ninth Circuit’s decision to grant habeas relief because the state court’s decision was not contrary to clearly established federal law. Id. at 8 , 123 S.Ct. 362 . The Supreme Court’s discussion in that case is of limited value for our purposes today.

The Early Court’s invocation of § 2254(d) was explicitly premised on a threshold finding that the claim on which petitioner sought federal relief was the very “same claim” on which the petitioner was denied relief in state court. 7 The Court, however, said nothing about how or when such a threshold finding is appropriate. It is true that the Supreme Court necessarily determined that a state court unaware of federal law could nonetheless adjudicate the merits of a federal constitutional claim. But the fact that a state court can adjudicate the merits of a federal claim despite its unawareness of the applicable federal law, does not mean that any particular court did.

I believe a close reading of Early reveals two critical distinctions between this case and that, which demonstrate exactly why the Supreme Court’s conclusion was justified and why the majority’s is not. In short, when the state court in Early made its merits evaluation of Packer’s jury-coercion claim, it was evaluating the exact same claim that Packer later pursued in federal court. And when the state court concluded that Packer was not entitled to relief under the legal rules and standards it applied, it did so using legal rules and standards that actually and dispositively resolved Packer’s federal constitutional question. In Childers’s case, neither of these things was true.

First, even though it did so without deploying federal law, the state court in Early evaluated the merits of Packer’s actual claim. Meaning, it evaluated whether the judge’s comments (ie., the operative facts) infringed upon Packer’s entitlement to be tried by a jury free from coercive influence (ie., the operative right). In this case, the majority fails to acknowledge that the Florida District Court of Appeal (“Florida DCA”) addressed a wholly different claim than the one Childers presented.

Childers raised a claim for relief under the Sixth Amendment’s unique procedural guarantee of confrontation. He argued that he was entitled to utilize the excluded pieces of evidence at trial, not for their intrinsic evidentiary value, but rather to lay bare an otherwise unknowable motivation for Junior’s embellishment of his prior testimony. Notwithstanding his properly presented Confrontation Clause claim, the Florida DCA evaluated Childers’s entitlement to relief under Florida’s substantive evidentiary rules. 8 When it did so — re *984 viewing the trial court’s balancing of the evidence’s probativeness and prejudice for an abuse of discretion — it failed to actually adjudicate the merits of Childers’s related, but independent, federal constitutional claim. Therefore, when Childers subsequently presented that claim for our review, unlike in Early , there was no prior state court ruling on the “same claim” to bind us.

Second, even if we ignore this dispositive distinction with Early and pretend that the state court did not misconstrue Childers’s claim, there is a second compelling reason why Early does not support the majority’s presumption. The Florida DCA did not evaluate Childers’s federal constitutional claim in light of a legal rule or standard sufficient to adjudicate its merit.

The Early Court plainly determined that the California state court evaluated the merits of Packer’s federal constitutional claim using state law. But the California state law of jury coercion deployed by the state court subsumed the relevant federal standard. 9 Therefore, when the state court evaluated whether the trial judge’s comments were violative of Packer’s right to have a jury free from coercion under state law, it necessarily and completely answered the parallel federal question.

Here, though certain aspects of the respective analyses overlap, a proper exclusion of Childers’s proffered evidence under Florida Rule 403 would not similarly rule out a violation of the Sixth Amendment’s procedural guarantee of effective cross-examination. In the interests of economy, I defer to my dissenting colleague’s explanation on this point; but we need look no further than Delaware v. Van Arsdall itself to understand that there is a meaningful distinction between these legal claims. 475 U.S. 673, 676-80 , 106 S.Ct. 1431 , 89 L.Ed.2d 674 (1986) (finding a trial court’s limitation of cross-examination violative of the Confrontation Clause, despite the limitation in question having been made pursuant to Delaware Rule of Evidence 403). 10

In sum, the state court in Early adjudicated Packer’s actual claim in light of a legal standard that actually protected the full sweep of the federal constitutional right. To put it another way, whether looking through the lens of state law or federal law, the state court asked the same question; and with respect to the scope of protection provided by the Federal Constitution, whether evaluating that question in light of state law or federal law, the state court necessarily reached the same answer. Conversely, here, the Florida DCA *985 adjudicated a different claim, and it did so using state law that did not necessarily resolve the federal question.

The majority’s apparent interpretation of Early holds for all cases sharing Early’s essential attributes: Where a state court previously evaluated the same claim later pursued in federal court and did so using a legal standard that — regardless of whether federal in name — necessarily protects the same space or conduct as federal law, we should consider that evaluation an adjudication on the merits of that federal claim under AEDPA. However, when a state court either fails to evaluate the proper claim or evaluates the proper claim using a non-federal standard that is neither co-terminus with federal law nor more protective, common sense mandates that we cannot consider such a decision to be an adjudication on the merits of a federal constitutional claim. Childers’s case falls into this latter category. 11

# *

The current body of Supreme Court case law — without our unnecessary gloss— fits together naturally and functionally. When a state court issues an order without articulating its reasons, Richter instructs us (as has our own precedent for nearly a decade) to do what judges often do when faced with a silent record: presume that a court — or a lawyer 12 — or a jury 13 — properly performed its duties in accordance with the law, absent any indication to the contrary. See 131 S.Ct. at 784-85 . And when a state court invests the time and effort to issue a written explanation of its decision, *986 it will be a rare case indeed where a non-procedural explanation will fail to constitute an adjudication on the merits. However, when a state court chooses to speak and, in so doing, indicates that it did not reach the merits of properly presented federal constitutional claim, it is our unshirkable duty to give that claim its first and proper adjudication.

This straightforward approach — one that seems almost too plain to need defending — not only ensures that every habeas petitioner has at least one unfettered evaluation of her claim by a competent tribunal, but also allows Richter to co-exist comfortably with Wiggins v. Smith 14 and Rompilla v. Beard. 15 The majority expresses skepticism that Wiggins and Rompilla remain good law in the wake of Richter. See Majority Op. at 969-70 n. 18. I strongly disagree.

The Richter Court cited both Wiggins and Rompilla without the slightest hint of disapproval. See 131 S.Ct. at 789 . Furthermore, I agree with our esteemed Seventh Circuit colleague that, “[w]e certainly cannot assume that the Court [in Richter ] overruled sub silentio its holding in Wiggins — a precedent so important to the daily work of the lower federal courts.” Sussman v. Jenkins, 642 F.3d 532 , 2011 WL 1591810 (April 28, 2011) (Ripple, J.) (denying motion to stay mandate). Finally, there is nothing inconsistent between the language of Richter cited by the majority, see Majority Op. at 969-70 n. 18, 16 and the relevant holdings from Wiggins and Rompilla .

Richter dealt with a state-court decision unaccompanied by any explanation of its rationale. 131 S.Ct. at 780, 784 . Citing the important role of summary dispositions in conserving strained state judicial resources, the Court declined to displace a generally accepted presumption that a state court had properly disposed of a claim on the basis of “pure speculation.” Id. at 784-85. Conversely, Wiggins and Rompilla were cases where the Court was not left to speculate as to what the state court had, and had not, adjudicated. In both, the state courts had expressly communicated the bases of their decisions in written opinions. Therefore, I believe Wiggins and Rompilla are best read to stand for the simple, obvious, and (what should be an) entirely uncontroversial proposition that when we can discern from a written opinion that a state court did not actually reach the merits of a particular federal question, AEDPA does not command deference to a prior state-court decision on those merits that does not exist. See Wiggins, 539 U.S. at 534 , 123 S.Ct. 2527 ; Rompilla, 545 U.S. at 390 , 125 S.Ct. 2456 .

This commonsense reading is supported by the Supreme Court’s recent reliance on those cases for that very same general proposition in other contexts. See, e.g., Cone v. Bell, — U.S.-, 129 S.Ct. 1769, 1784 , 173 L.Ed.2d 701 (2009) (citing both Wiggins and Rompilla in a case concern *987 ing an erroneous procedural ruling for the general proposition that federal habeas review is not circumscribed by AEDPA’s deferential standards when a state court fails to adjudicate a claim’s merits). Moreover, it is wholly consistent with the Court’s clear words from Richter:

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.

The presumption may be overcome when there is reason to think some other explanation for the state court’s decision is more likely.

131 S.Ct. at 784-85 (emphasis added) (citations omitted). 17

An application of the letter and spirit of this body of Supreme'Court cases is preferable to the approach taken by the majority today. The rules we craft apply with equal force to all habeas petitioners, including those under sentence of death. In light of the nearly insurmountable deference to state court merits determinations commanded by recent Supreme Court cases, 18 I cannot endorse an interpretation of § 2254(d) that prevents this Court from ordering relief in cases where a petitioner has a meritorious constitutional claim, and we have an indication that the state court did not previously adjudicate it. 19 We should to continue to apply the intuitive logic of our current case law, represented by cases like Espy 20 and Romine, 21 if the facts of a case so demand. And in my mind, the facts of this case do just that.

*988 It is clear to me, if not to this Court, that the majority of the Florida DCA was under the mistaken impression that if Junior’s cross-examination was properly limited under Florida Rule 403, then there could be no violation of Childers’s Sixth Amendment rights. This is a clear misunderstanding of federal law, even if those related, but independent, inquiries call upon a court to engage with similar facts and related bodies of law. The state court, therefore, failed to actually adjudicate the merits of Childers’s Confrontation Clause claim. Consequently, when Childers properly presented that separate and independent claim for our review, it was, is, and should always remain, our constitutional duty to evaluate its merits to the best of our collective judgment.

A right without a remedy for its transgression is no right at all. No court whose opinion has not been vacated has given Childers unhampered consideration of his Sixth Amendment claim. AEDPA was meant to preclude a criminal defendant’s second bite at the constitutional apple— not his first.

For this simple and important reason, I concur only in the majority’s result.

. Black’s Law Dictionary, 264 (8th ed. 2004) (examples of common usage omitted), defines a "claim” as:

1. The aggregate of operative facts giving rise to a right enforceable by a court

2. The assertion of an existing right; any right to payment or to an equitable remedy, even if contingent or provisional ....

3. A demand for money, property, or a legal remedy to which one asserts a right; esp., the part of a complaint in a civil action specifying what relief the plaintiff asks for.

. See Black’s Law Dictionary 45 (8th ed. 2004).

. For federal constitutional claims, the "relevant right” is, of course, the right created or preserved by the United States Constitution.

. The majority's declaration that it has "no occasion to expand upon” the language from Richter quoted above, see Majority Op. at 970 n. 18, simply cannot be squared with its black-and-white definition of what constitutes an adjudication on the merits. That plain language will be applied by district courts in our Circuit, and it makes no allowance for any non-procedural "indications.” The majority’s attempt to sidestep this fact is troubling and not the least bit reassuring.

. It should be noted that this rule is tautological. Whether a state court has, in fact, rejected the "same claim” presented in the federal petition is exactly the question that we seek to answer. Incorporating the question into our answer merely begs the question.

As described below, the majority's phrasing of its extended presumption illustrates how it has erroneously relied on Early v. Packer, 537 U.S. 3 , 123 S.Ct. 362 , 154 L.Ed.2d 263 (2002) (per curiam). The cited discussion in that case was premised on an explicit understanding that the claim presented in the federal petition was, in fact, the "same claim” rejected in state court. Therefore, so long as its result was neither contrary to nor an unreasonable application of federal law, the state court's ignorance of federal law was irrelevant.

Our task, as the majority has defined it, is to determine when we can share the same threshold understanding held by the Supreme Court in Early : that a claim presented in the federal petition was, in fact, the "same claim” rejected in state court. The majority appears to read Early to say, in essence, that whenever a federal habeas claim has been presented in a prior state court proceeding and not disposed of solely on procedural grounds, it has necessarily been adjudicated on the merits. For the reasons discussed below, I believe this interpretation reads far too much into Early and ignores critical distinctions between that case and this one.

. One of the most unfortunate aspects of today’s opinion is that the presumption crafted by the majority is wholly unnecessary. The majority clearly expresses that it believes that the state court did not misunderstand Childers’s claim and did, in fact, address its substance. See Majority Op. at 969-70 n. 18. If that is true, then the majority's entire discussion regarding what constitutes an adjudication on the merits is unnecessary to resolve this case. Hence, it is mere dicta, and the majority has created an unnecessarily doctrinal conflict.

. "The jury-coercion claim in respondent’s habeas petition is the same claim rejected on the merits in his direct appeal to the state appellate court, and the Ninth Circuit correctly recognized that § 2254(d) was therefore applicable.” Early, 537 U.S. at 8 , 123 S.Ct. 362 .

. The Florida DCA was unequivocal regarding the legal basis for its ruling. For example:

*984 Concerning the issues raised on appeal, we conclude that, although the trial court erred in its conclusion that the State's attempt to revoke Willie Junior’s plea agreement was irrelevant, the evidence was properly excluded under section 90.403, Florida Statutes (2002), because the limited probative value of this evidence was substantially outweighed by the danger of unfair prejudice. We therefore affirm the trial court's ruling under the so-called "tipsy coachman” rule.

Childers v. State, 936 So.2d 585, 587 (Fla. 1st Dist.Ct.App.2006) (en banc) (per curiam).

If such language is not an "indication” that the state court failed to adjudicate Childers’s Confrontation Clause claim, I do not know what is.

. The California state law at issue protected the same right as the federal law, but offered more robust protection. See Early, 537 U.S. at 8 , 123 S.Ct. 362 (“The Ninth Circuit's disapproval of the Court of Appeal’s failure to cite this Court's cases is especially puzzling since the state court cited instead decisions from the California Supreme Court that impose even greater restrictions for the avoidance of potentially coercive jury instructions.”).

. Delaware Rule of Evidence 403 is "virtually identical” to Federal Rule of Evidence 403, see Delaware v. Van Arsdall, 475 U.S. 673 , 676 n. 2, 106 S.Ct. 1431 , 89 L.Ed.2d 674 (1986), and tracks Florida Rule 403.

. The close relationship between a 403-type evidentiary analysis and a Van Arsdall-type Confrontation Clause analysis may obscure the perverse consequences of the majority’s approach. Those consequences, however, are easily illustrated if we consider a related and more familiar area of tension between substantive evidentiary law and the Constitution's procedural guarantee of confrontation: the admission of testimonial hearsay at trial.

Like their federal counterparts, most state court judges forged their understanding of the Sixth Amendment at a time when a valid state evidentiary ruling that proffered out-of-court statements fell within a "firmly rooted” exception to the hearsay bar precluded a Confrontation Clause violation. See, e.g., Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980). In 2004, however, the Supreme Court drastically reformed federal constitutional law to disentangle the explicit procedural guarantee of the Confrontation Clause from a court’s substantive evaluation of an out-of-court statement’s reliability. See Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004). Under the majority’s rule as applied in this case, if a habeas petitioner challenged the admission of a testimonial, out-of-court statement at trial, and the state court — failing to take cognizance of Crawford — simply ruled on the propriety of admitting the hearsay testimony based on its permissibility under a firmly rooted hearsay exception, we would be precluded from giving that petitioner her first plenary ruling on her related, but distinct, constitutional claim. This means that even if the petitioner’s Confrontation Clause rights were violated and the state court (presumably) would have granted relief had it actually adjudicated the merits of the Sixth Amendment claim, our hands would be tied unless the constitutional error was so clear as to meet the exceedingly high bar set by § 2254(d). This would be wholly inappropriate if the claimant had never before had a genuine and meaningful review of her actual claim. And "AEDPA does not require such a crabbed and illogical” interpretation. See Wellons v. Hall, - U.S. -, n. 3, 130 S.Ct. 727 , 730 n. 3, 175 L.Ed.2d 684 (2010) (per curiam).

. See Chandler v. United States, 218 F.3d 1305 , 1315 n. 15 (11th Cir.2000) (en banc) ("[Wjhere the record is incomplete or unclear about [counselj's actions, we will presume that he did what he should have done, and that he exercised reasonable professional judgment.” (second alteration in original) (citation omitted)).

. See United States v. Ramirez, 426 F.3d 1344, 1352 (11th Cir.2005) (per curiam) ("A jury is presumed to follow the instructions given to it by the district judge.”).

. 539 U.S. 510 , 123 S.Ct. 2527 , 156 L.Ed.2d 471 (2003).

. 545 U.S. 374 , 125 S.Ct. 2456 , 162 L.Ed.2d 360 (2005).

. In full, the relevant language reads:

Where a state court’s decision is unaccompanied by an explanation, the habeas petitioner’s burden still must be met by showing there was no reasonable basis for the

state court to deny relief. This is so whether or not the state court reveals which of the elements in a multipart claim it found insufficient, for § 2254(d) applies when a “claim,” not a component of one, has been adjudicated.

131 S.Ct. at 770, 784 . The majority omits the first sentence, which reveals the Richter Court was specifically addressing state court decisions “unaccompanied by an explanation.”

. In this frame, the holdings of Wiggins and Rompilla are more relevant to this case than the holding of Richter — a decision that simply ratified our existing Circuit law. This was not a Richter case, where the state court declined to articulate its rationale in order to conserve its valuable and finite resources. This was an exceedingly high-profile case that prompted a great deal of attention and generated a great deal of controversy within the Florida DCA, not to mention ten different opinions from that en banc court. The economic rationale driving Richter simply does not apply here.

. See, for example, Richter, speaking of § 2254(d)’s deferential standard of review:

If this standard is difficult to meet, that is because it was meant to be. As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther.

131 S.Ct. at 786 (citations omitted).

. The majority rule would prevent us from doing so in those cases where the petitioner has a meritorious claim, but the contrary conelusion would not be beyond fairminded disagreement. AEDPA commands us to respect those erroneous, but not unreasonable, state court judgments when the state court has previously adjudicated the claim. However, it would be unconscionable, and possibly unconstitutional, for us to allow a claimant to proceed to her execution when we have an indication that the state court did not actually address her claim.

Judges are only human. We make mistakes. And though, in the ordinary case, AEDPA itself provides a framework for relief from those mistakes within its structure of deferential review, that very structure is predicated upon the understanding that, prior to our review, every petitioner has had a full and fair de novo adjudication of her claims. It seems elementary that if, in the rare case, the mistake in question is of a kind that likely prevented the state court from actually adjudicating the merits of a claim, we must exercise plenary review. In such a case, the deferential standards of § 2254(d) have no place because there is no prior state court adjudication to which we can defer.

. 443 F.3d at 1364-65 .

. 253 F.3d at 1365.