Amicus Curiae Brief — Alabama, Petitioner v. Marcus Bernard Williams

No. 23-682

In the

Supreme Court of the United States

STATE OF ALABAMA,

v.

Petitioner,

MARCUS BERNARD WILLIAMS,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF OF THE COMMONWEALTH OF

VIRGINIA AND 17 OTHER STATES AS AMICI

CURIAE IN SUPPORT OF PETITIONER

JASON S. MIYARES

Attorney General of

Virginia

ANDREW N. FERGUSON

Solicitor General

Counsel of Record

KEVIN M. GALLAGHER

Deputy Solicitor

General

ERIKA L. MALEY

Principal Deputy

Solicitor General

RICK W. EBERSTADT

Assistant Solicitor

General

OFFICE OF THE VIRGINIA

ATTORNEY GENERAL

202 North Ninth Street

Richmond, Virginia 23219

(804) 786-2071

aferguson@oag.state.va.us

Counsel for Amicus Curiae the Commonwealth of Virginia

(Additional Counsel listed on Signature Page)

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES....................................... ii

INTERESTS OF AMICI CURIAE .............................1

INTRODUCTION AND SUMMARY OF

ARGUMENT ...............................................................2

BACKGROUND ..........................................................4

I.

Williams’s crimes and conviction ......................4

II. Williams’s state and federal postconviction

proceedings .........................................................6

ARGUMENT ...............................................................9

I.

Federal habeas review undermines state

sovereignty, and must be applied only

sparingly to comport with principles of

federalism ...........................................................9

II. AEDPA deference is required when state

appellate courts do not reverse prior merits

decisions ........................................................... 14

III. Adoption of the Eleventh Circuit’s rule

seriously harms state court practice and

procedure .......................................................... 17

CONCLUSION .......................................................... 19

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Barker v. Fleming,

423 F.3d 1085 (9th Cir. 2005) .............................. 15

Barton v. Warden, Southern Ohio

Correctional Facility,

786 F.3d 450 (6th Cir. 2015) ................................ 15

Burt v. Titlow,

571 U.S. 12 (2013) ................................................ 13

Calderon v. Thompson,

523 U.S. 538 (1998) ........................................ 10, 11

Ex parte Clemons,

55 So. 3d 348 (Ala. 2007) ....................................... 7

Coleman v. Thompson,

501 U.S. 722 (1991) ........................................ 10, 19

Collins v. Secretary of Pa. Dep’t of Corr.,

742 F.3d 528 (3d Cir. 2014) ................................. 16

Danforth v. Minnesota,

552 U.S. 264 (2008) .............................................. 10

Davila v. Davis,

582 U.S. 521 (2017) .................................... 9, 11, 14

Engle v. Isaac,

456 U.S. 107 (1982) .......................................... 9, 11

iii

Hammond v. Hall,

586 F.3d 1289 (11th Cir. 2009) ............................ 18

Harrington v. Richter,

562 U.S. 86 (2011) ........................................ passim

Hill v. McDonough,

547 U.S. 573 (2006) .............................................. 10

Johnson v. Williams,

568 U.S. 289 (2013) .................................... 4, 18, 19

Kansas v. Garcia,

140 S. Ct. 791 (2020) .............................................. 9

Kuhlmann v. Wilson,

477 U.S. 436 (1986) .............................................. 10

Lockhart v. Fretwell,

506 U.S. 364 (1993) .............................................. 10

Loden v. McCarty,

778 F.3d 484 (5th Cir. 2015) ................................ 15

Loggins v. Thomas,

654 F.3d 1204 (11th Cir. 2011) ............................ 16

Metrish v. Lancaster,

569 U.S. 351 (2013) .............................................. 12

Shinn v. Ramirez,

596 U.S. 366 (2022) ...................................... passim

Strickland v. Washington,

466 U.S. 668 (1984) ...................................... passim

iv

Stutson v. United States,

516 U.S. 193 (1996) .............................................. 10

Tafflin v. Levitt,

493 U.S. 455 (1990) .............................................. 13

Thomas v. Clements,

789 F.3d 760 (7th Cir. 2015) ................................ 15

Thomas v. Clements,

797 F.3d 445 (7th Cir. 2015) ........................ 2, 3, 14

Thomas v. Horn,

570 F.3d 105 (3d Cir. 2009) ................................. 16

White v. Woodall,

572 U.S. 415 (2014) .............................................. 12

Wiggins v. Smith,

539 U.S. 510 (2003) .............................................. 15

Williams v. Alabama,

535 U.S. 900 (2001) ................................................ 6

Williams v. State,

795 So. 2d 753 (Ala. Crim. App. 1999) .......... 4, 5, 6

Williams v. Taylor,

529 U.S. 420 (2000) ........................................ 10, 12

Ex Parte Williams,

795 So. 2d 785 (2001) ............................................. 6

Yarborough v. Alvarado,

541 U.S. 652 (2004) .............................................. 16

v

Statutes

28 U.S.C. § 2254 ................................................ passim

Other Authorities

Ala. R. Crim. P. Rule 32.2(a)(4) .................................. 6

The Federalist No. 39 (C. Rossiter ed. 1961)

(J. Madison) ............................................................ 9

Sup. Ct. R. 37.2(a) ....................................................... 1

INTERESTS OF AMICI CURIAE 1

Amici curiae are the Commonwealth of Virginia,

the State of Alaska, the State of Florida, the State of

Idaho, the State of Indiana, the State of Iowa, the

State of Kansas, the Commonwealth of Kentucky, the

State of Louisiana, the State of Mississippi, the State

of Missouri, the State of Montana, the State of Nebraska, the State of South Carolina, the State of South

Dakota, the State of Texas, the State of Utah, and the

State of West Virginia (collectively, the Amici States).

Amici States submit this brief in support of the State

of Alabama’s petition for a writ of certiorari.

The Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”) provides limited federal habeas review of a state prisoner’s claims. Those limits

are especially strict whenever a state court has already decided the prisoner’s claims on the merits. This

rule of deference to state courts respects our federal

structure by protecting States’ sovereign authority to

adjudicate violations of their criminal laws through

their own legal processes. The Eleventh Circuit, however, expanded the reach of federal habeas review by

narrowing the circumstances in which a claim has

been “adjudicated on the merits in State court proceedings.” 28 U.S.C. § 2254(d).

Amici States have a significant interest in this

case, as federal habeas review impinges upon state

sovereignty. AEDPA deference requires federal courts

to overturn state criminal decisions only sparingly

and with great care. States have a strong interest in

the finality of their own criminal convictions, and in

1 Under Supreme Court Rule 37.2(a), amici curiae notified counsel of record of their intent to file this brief at least 10 days prior

to the due date for the brief.

2

their independent authority to punish criminal offenders. Liberality of federal habeas review undermines core considerations of federalism.

Accordingly, Amici States seek to ensure that federal courts do not broaden the scope of the federal habeas statute by refusing deference to a state appellate

court’s procedural affirmance of a trial court’s merits

opinion. In addition to contradicting the text of

AEDPA, that approach also ignores the realities of

state habeas dockets, and would require state appellate courts to change their method of writing and affirming judgments. States have an interest in the independence of their own judicial systems and ask this

Court to protect that interest here.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Federal habeas review threads a narrow needle between the proper concurrent roles of federal authority

and state sovereignty. For that reason, the “availability of habeas relief” to review state-court convictions

is “narrowly circumscribed” to “respect our system of

dual sovereignty.” Shinn v. Ramirez, 596 U.S. 366,

375 (2022). Here, the Eleventh Circuit exceeded Congress’s limits on federal habeas review by ruling that

a state trial court merits decision was not entitled to

AEDPA deference when a state appellate court had

affirmed that merits decision on procedural grounds.

Whether the federal reviewing court owes the state

merits decision AEDPA deference under those circumstances is a question that has divided the federal

courts of appeals. As Judge Easterbrook observed, it

is a question that “belongs on the Supreme Court’s

plate.” Thomas v. Clements, 797 F.3d 445, 446 (7th

Cir. 2015) (Easterbrook, J., concurring in the denial of

rehearing en banc); see also Pet. 22–25.

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Amici States write separately to emphasize the importance of this issue to the States. All of the Amici

States have a strong interest in protecting their authority to adjudicate their own criminal proceedings—

authority they enjoyed before entering the Constitution, and which they did not surrender when they entered the compact. States have a fundamental interest

in the finality of their own criminal convictions. This

finality “is essential to both the retributive and deterrent functions of criminal law,” Shinn, 596 U.S. at 391

(cleaned up), and is critical to the important state interest in caring for the victims of crime. Federal habeas intervention thus imposes significant costs on

state criminal justice systems by “disturb[ing] the

State’s significant interest in repose for concluded litigation,” Harrington v. Richter, 562 U.S. 86, 103

(2011) (quotation marks omitted), and must be applied sparingly.

In light of those principles, AEDPA deference to

state merits decisions must apply when a state court

decides a claim on the merits and the state appellate

court does not reverse that decision. “When two state

courts give different reasons, and the second (a court

of appeals or state supreme court) does not disagree

with the first (a trial court or intermediate appellate

court), there is little reason to treat the first as having

been obliterated.” Thomas, 797 F.3d at 446 (Easterbrook, J., concurring in denial of rehearing en banc).

Indeed, “[r]espect for the state judiciary requires considering both.” Ibid. The Eleventh Circuit did not apply that deference here and its lack of deference was

extremely consequential—a decades-old conviction for

an infamous crime was reopened by the application of

the wrong legal standard.

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The Eleventh Circuit was incorrect to conclude

that a state appellate court intends to obviate the trial

court’s merits ruling when it affirms on procedural

grounds. State appellate courts face “very heavy”

workloads, and their opinions “must be read with that

factor in mind.” Johnson v. Williams, 568 U.S. 289,

300 (2013). Many such courts that affirm a judgment

will do so on the simplest available grounds—including procedural grounds—even when they would agree

that other grounds (such as the merits) are also sufficient. And a federal court’s assumption otherwise

would, in practice, require state appellate courts to alter their opinion writing by unnecessarily including

an additional merits ruling beyond the often-simpler

procedural affirmance.

This Court should grant the petition and reverse

to protect the States from this federal intrusion.

BACKGROUND

I.

Williams’s crimes and conviction

Shortly after midnight on November 6, 1996, Williams broke into the locked home of Melanie Dawn

Rowell, where Rowell (a single mother) and her two

young children were sleeping. Williams v. State, 795

So. 2d 753, 761 (Ala. Crim. App. 1999). After grabbing

a knife from the kitchen countertop, Williams climbed

the stairs, taking off his pants along the way. Ibid. He

peeked into the children’s room to ensure that they

were asleep before he entered Rowell’s room. Ibid.

Williams climbed on top of the still-sleeping Rowell

and began to take off her clothes. Williams, 795 So. 2d

at 761. Rowell woke up and began to scream, so Williams put his hand over her mouth to silence her. Id.

at 762. When this failed to prevent her efforts to escape him, Williams put his hands around her neck and

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strangled her to death. Ibid. He then proceeded to

have sex with her lifeless body for “15 to 20 minutes.”

Ibid. Afterward he stole her purse. Ibid.

Less than three weeks later, in the early morning

hours, Williams decided to break into the house of a

woman named Lottie Turner. App. 160 n.9. Williams

opened her bedroom window, took his clothes off, and

entered her bedroom where she was sleeping. Ibid.

Naked, he climbed into her bed and got on top of her.

Ibid. When she woke up and struggled to escape, he

held her down. Ibid. Williams repeatedly told Turner

that “all I want[] is sex.” Ibid. He fondled her breasts

and rubbed his penis on her while he held her in the

bed against her will. Ibid. The ordeal did not end until

6:30 a.m. when he finally decided to leave. Ibid.

The police caught Williams in response to his sexual assault of Turner, at which point he also confessed

that he had killed Rowell. App. 39. He was subsequently tried for Rowell’s rape and murder. App. 5,

160 n.9. Because he faced “overwhelming evidence” of

his guilt, his defense “argued only that, although he

intended to rape Ms. Rowell, he did not intend to kill

her.” App. 39. The jury convicted Williams of capital

murder for intentionally causing Ms. Rowell’s death

during a rape or attempted rape in violation of Alabama Code § 13A-5-40(a)(3). App. 39–40.

Williams’s penalty phase proceeded the next day

with the same jury. App. 40. Williams’s counsel elicited testimony as to Williams’s difficult upbringing

and unstable home life. App. 40–42. The jury did not

learn about Williams’s sexual assault of Turner weeks

after he had raped and murdered Rowell. Ibid. Nonetheless, the jury recommended that Williams be sentenced to death. App. 42. The trial court then heard

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Williams testify about his remorse, and heard Rowell’s mother testify about the impact of Rowell’s murder on the family, including her young children. Ibid.

The trial court found that the aggravating factor of

Williams’s murder while committing a rape outweighed the other mitigating factors, and sentenced

Williams to death. Ibid. The Alabama Court of Appeals affirmed the conviction and sentence, as did the

Alabama Supreme Court. See Williams v. State, 795

So. 2d 753 (Ala. Crim. App. 1999); Ex Parte Williams,

795 So. 2d 785 (2001). This Court denied certiorari review. See Williams v. Alabama, 535 U.S. 900 (2001).

II.

Williams’s state and federal postconviction

proceedings

Williams sought state habeas review, raising

(among other claims) the claim that he received ineffective assistance of counsel during his penalty phase

when his counsel had failed to conduct a reasonable

investigation about his history of sexual abuse. App.

591–606. The state trial court denied Williams’s claim

on the merits in a lengthy opinion. App. 555–608.

The Alabama Court of Appeals affirmed the judgment of the state trial court in an unpublished opinion. App. 521–54. That court did not address the merits of Williams’s claims; instead, it held that Williams’s ineffective assistance of counsel claims were

“procedurally barred from review because Williams

raised allegations of ineffective assistance of counsel

on direct appeal and those claims were addressed by

this Court and by the Alabama Supreme Court on certiorari review.” App. 540–41 (citing Rule 32.2(a)(4),

7

Ala. R. Crim. P.). 2 The Alabama Supreme Court denied certiorari. Pet. 12.

Williams subsequently filed a federal habeas petition in the U.S. District Court for the Northern District of Alabama, pursuant to 28 U.S.C. § 2254. His

petition raised eight claims involving ineffective assistance of counsel during the penalty phase. App. 9–10

n.2. The district court denied Williams’s petition. App.

231. The court held that it owed deference under 28

U.S.C. § 2254(d) to the state trial court’s Rule 32 decision on the ineffective assistance of counsel claims.

App. 231. Under that deferential standard of review,

the district court concluded that the state trial court’s

rejection of Williams’s claims had not been contrary

to, or an unreasonable application of, this Court’s

precedent in Strickland v. Washington, 466 U.S. 668

(1984).

Williams appealed, and the United States Court of

Appeals for the Eleventh Circuit reversed in 2015.

The court observed that the state trial court had indeed adjudicated the question “on the merits,” but

held that federal courts nonetheless did not owe deference to that merits decision because the state court

of appeals had affirmed on different, jurisdictional

grounds. App. 234. Citing this Court’s decision in Harrington v. Richter, 562 U.S. 86 (2011), the Eleventh

Circuit held that a state court’s merits decision is not

owed deference when the state appellate court decides

that those claims were “procedurally barred”; it also

held that the state court of appeals had “rejected” the

trial court merits decision “on the basis of state law”

2 Although the Alabama Court of Appeals considered this proce-

dural bar to be jurisdictional, the Alabama Supreme Court later

clarified that Rule 32’s procedural bar was not jurisdictional. Ex

parte Clemons, 55 So. 3d 348, 353 (Ala. 2007).

8

when the former held that the petition was jurisdictionally barred, even though the State’s highest court

later explained that the bar was procedural rather

than jurisdictional. App. 234. AEDPA deference

would not be due, the Eleventh Circuit held, unless

the state court of appeals affirmatively made “alternative, but consistent, merits determinations.” App.

235.

The Eleventh Circuit ultimately remanded to the

federal district court to decide whether to hold a hearing on Williams’s claim that his lawyer had failed to

investigate sexual abuse that Williams had suffered

as a child. App. 240. On remand, the federal district

court held a hearing on Williams’s claim. App. 4. Initially, that court again denied habeas relief, holding

that even if trial counsel had been unreasonable in

failing to investigate Williams’s childhood sexual

abuse, Williams was unable to show prejudice because

the prosecutor would have countered by introducing

evidence of Williams’s sexual assault of Turner. App.

216, 219 n.9. But then, on a later motion, the district

court reversed itself and granted Williams habeas relief on a de novo review. App. 11 n.3.

In July 2023, a divided Eleventh Circuit panel affirmed the federal district court’s second decision.

App. 3–27. According the state trial court’s merits determination no deference, the majority held that Williams’s counsel had unreasonably failed to investigate

Williams’s childhood sexual abuse before the penalty

phase of his trial for the murder and rape of Rowell.

App. 16. The majority also held that this failure had

prejudiced Williams, and thus affirmed the district

court’s grant of habeas corpus relief. App. 27. The dissent responded that Williams’s relatively weak mitigating evidence of his childhood abuse did not

9

outweigh the brutality of his crimes, the undisputed

nature of the evidence that he committed them, the

fact that the mitigating evidence might well have

harmed rather than helped Williams’s case, and the

likelihood that the State would have informed the jury

that Williams had subsequently sexually assaulted

Turner in a similar manner. App. 27–34.

I.

ARGUMENT

Federal habeas review undermines state

sovereignty, and must be applied only sparingly to comport with principles of federalism

Federal habeas review overrides state court criminal-law determinations, and thus inherently undermines state sovereignty. “From the beginning of our

country, criminal law enforcement has been primarily

a responsibility of the States.” Kansas v. Garcia, 140

S. Ct. 791, 806 (2020). The power to convict and punish criminals lies at the heart of the States’ “residuary

and inviolable sovereignty.” The Federalist No. 39, p.

245 (C. Rossiter ed. 1961) (J. Madison). Because federal habeas review “overrides the States’ core power

to enforce criminal law,” Shinn v. Ramirez, 596 U.S.

366, 376 (2022), it “‘entails significant costs’” on our

federal system and “‘intrudes on state sovereignty to

a degree matched by few exercises of federal judicial

authority,’” Davila v. Davis, 582 U.S. 521, 537 (2017)

(quoting Engle v. Isaac, 456 U.S. 107 (1982), and Harrington v. Richter, 562 U.S. 86, 103 (2011)). Because

of the affront that federal habeas review poses to federalism, it must be applied sparingly.

1. Broad federal habeas review impinges directly

upon the strong state interest in criminal adjudication. This Court has been “careful to limit the scope of

10

federal intrusion into state criminal adjudications” because it recognizes “the States’ interest in the integrity of their criminal and collateral proceedings.” Williams v. Taylor, 529 U.S. 420, 436 (2000); see also Hill

v. McDonough, 547 U.S. 573, 584 (2006) (“[E]quity

must be sensitive to the State’s strong interest in enforcing its criminal judgments without undue interference from the federal courts.”). Federal habeas review runs headlong into States’ strong interests in

their own criminal adjudications in several ways.

First, States have a fundamental interest in the finality of their criminal convictions. This Court has

recognized criminal finality as an “important value[],”

Stutson v. United States, 516 U.S. 193, 197 (1996),

that is “essential to both the retributive and deterrent

functions of criminal law,” Shinn, 596 U.S. at 391

(cleaned up). Additionally, finality “enhances the

quality of judging” and serves “to preserve the federal

balance.” Calderon v. Thompson, 523 U.S. 538, 555

(1998). Thus, finality serves “goals important to our

system of criminal justice and to federalism.”

Kuhlmann v. Wilson, 477 U.S. 436, 453 n.16 (1986);

see also Coleman v. Thompson, 501 U.S. 722, 746

(1991) (there are “strong state interests in the finality

of its criminal litigation”); Lockhart v. Fretwell, 506

U.S. 364, 372 (1993) (maintaining “a respect for the

States’ strong interest in the finality of criminal convictions”). Put simply, “finality of state convictions is

a state interest, not a federal one.” Danforth v. Minnesota, 552 U.S. 264, 280 (2008) (emphasis in original).

Federal habeas review undermines this interest by

attacking that finality. The States have the sovereign

power to enforce “societal norms through criminal

11

law.” Calderon, 523 U.S. at 556 (quotation marks

omitted). Yet federal “writs of habeas corpus frequently cost society the right to punish admitted offenders.” Engle, 456 U.S. at 127. This attack on the

finality of state criminal convictions also harms state

interests in protecting victims. “Only with real finality

can the victims of crime move forward knowing the

moral judgment will be carried out.” Calderon, 523

U.S. at 556. “To unsettle these expectations is to inflict a profound injury to the powerful and legitimate

interest in punishing the guilty, an interest shared by

the State and the victims of crime alike.” Ibid. (quotation marks and citation omitted).

Second, federal habeas intervention also imposes

significant financial and institutional costs on state

criminal justice systems. Federal habeas review “disturbs the State’s significant interest in repose for concluded litigation, [and] denies society the right to punish some admitted offenders.” Davila, 582 U.S. at 537

(quotation marks omitted). It also undermines the

States’ investment in their criminal trials. See ibid.

(federal habeas “degrades the prominence of the

[State] trial” (quotation marks omitted)). “If the state

trial is merely a tryout on the road to federal habeas

relief, that detracts from the perception of the trial of

a criminal case in state court as a decisive and portentous event.” Shinn, 596 U.S. at 377 (citation and quotation marks omitted) (cleaned up). Further, based on

the “[p]assage of time, erosion of memory, and dispersion of witnesses,” the federal habeas writ “in practice” may “reward the accused with complete freedom

from prosecution” regardless of guilt. Engle, 456 U.S.

at 127–28. Therefore, the cost that federal habeas imposes on States’ law enforcement institutions is substantial.

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2. Given the intrusions onto state sovereignty that

federal habeas review necessarily poses, Congress

strictly limited federal review of final state court judgments. Congress passed AEDPA “to further the principles of comity, finality, and federalism.” Williams,

529 U.S. at 436. And this Court has recognized that

federal habeas review cannot serve as “a substitute for

ordinary error correction through appeal.” Harrington, 562 U.S. at 102–03. The writ of habeas corpus is

an “extraordinary remedy” that guards only against

“extreme malfunctions in the state criminal justice

systems.” Id. at 102. “To ensure that federal habeas

corpus retains its narrow role, AEDPA imposes several limits on habeas relief.” Shinn, 596 U.S. at 377.

As relevant here, AEDPA provides that “[a]n application 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 adjudicated 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.” 28 U.S.C. § 2254(d). “This standard,” this Court has repeatedly told lower courts, “is

difficult to meet.” Metrish v. Lancaster, 569 U.S. 351,

357–58 (2013) (quotation marks omitted). “Clearly established law” signifies “the holdings, as opposed to

the dicta, of this Court’s decisions.” Williams, 529 U.S.

at 412. And an “unreasonable application of those

holdings must be objectively unreasonable, not merely

wrong; even clear error will not suffice.” White v.

Woodall, 572 U.S. 415, 419 (2014) (cleaned up). Rather, “[a]s a condition for obtaining habeas corpus

from a federal court, a state prisoner must show that

13

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, 562 U.S. at 103.

This standard is difficult to meet “because it was

meant to be.” Harrington, 562 U.S. at 102. This Court

repeatedly has affirmed that “the States possess sovereignty concurrent with that of the Federal Government, subject only to limitations imposed by the Supremacy Clause,” and that “this system of dual sovereignty” requires that “state courts have inherent authority, and are thus presumptively competent, to adjudicate claims arising under the laws of the United

States.” Burt v. Titlow, 571 U.S. 12, 19 (2013) (cleaned

up) (quoting Tafflin v. Levitt, 493 U.S. 455, 458

(1990)). Section 2254(d) was “designed to confirm that

state courts are the principal forum for asserting constitutional challenges to state convictions.” Harrington, 562 U.S. at 103. It therefore limits federal habeas

authority only to those “cases where there is no possibility fairminded jurists could disagree that the state

court’s decision conflicts with this Court’s precedents,”

but it “goes no further.” Id. at 102; see also ibid. (Section 2254(d) “stops short of imposing a complete bar

on federal-court relitigation of claims already rejected

in state proceedings”). And the reasons for treating

state court merits determination this way “are familiar”: federal habeas review “frustrates both the States’

sovereign power to punish offenders and their goodfaith attempts to honor constitutional rights,” “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

14

federal judicial authority.” Davila, 582 U.S. at 537

(quotation marks omitted). The Eleventh Circuit’s ruling below was contrary to these critical principles.

II.

AEDPA deference is required when state

appellate courts do not reverse prior merits decisions

Despite these clear principles, the Eleventh Circuit held that federal courts do not owe deference under Section 2254(d) to state trial court merits determinations when a state appellate court later affirmed

the judgment of the state trial court on a different

ground. That decision violates this Court’s precedents

and the plain text of AEDPA, and exacerbates a circuit split. Whether “the first in a sequence of statecourt decisions should be ignored has divided the

courts of appeals,” and so the subject “belongs on [this

Court’s] plate.” Thomas v. Clements, 797 F.3d 445,

446 (7th Cir. 2015) (Easterbrook, J., concurring in the

denial of rehearing en banc).

The Eleventh Circuit below decided that when a

state court of appeals affirmed a merits decision on

procedural grounds, federal courts are no longer required to defer to the state trial court’s merits decision. That approach turns AEDPA deference on its

head. “When two state courts give different reasons,

and the second (a court of appeals or state supreme

court) does not disagree with the first (a trial court or

intermediate appellate court), there is little reason to

treat the first as having been obliterated. Respect for

the state judiciary requires considering both.”

Thomas, 797 F.3d at 446 (Easterbrook, J.). When a

state appellate court affirms the trial court’s judgment, principles of federalism require that the federal

15

habeas court apply AEDPA deference rather than

seek an end-run around state sovereignty.

AEDPA’s plain text compels this result. The statute directs federal courts to defer to state courts “with

respect to any claim that was adjudicated on the merits in State court proceedings.” 28 U.S.C. § 2254(d).

When a trial court reaches a decision on the merits,

and the state appellate courts do not reverse that decision, the merits adjudication remains in place regardless of whether it was affirmed on other grounds.

The claim was, quite literally, “adjudicated on the

merits in State court proceedings.” Ibid.; see also Wiggins v. Smith, 539 U.S. 510, 534 (2003) (“[O]ur review

is not circumscribed by a state court conclusion with

respect to prejudice, as neither of the state courts below

reached this prong of the Strickland analysis.” (emphasis added)).

Yet despite the plain text of the statute, federal

courts of appeals are divided on whether AEDPA deference applies to state merits decisions that are affirmed on other grounds. The Fifth Circuit has held

that a state trial court’s merits decision must receive

AEDPA deference when the higher state courts did

not rule on the merits. Loden v. McCarty, 778 F.3d

484, 495 (5th Cir. 2015). The Sixth, Seventh, and

Ninth Circuits, by contrast, have held that only the

last-in-time state court opinion that included reasoning is owed AEDPA deference. See Barton v. Warden,

Southern Ohio Correctional Facility, 786 F.3d 450,

462 (6th Cir. 2015); Thomas v. Clements, 789 F.3d

760, 766–68 (7th Cir. 2015); Barker v. Fleming, 423

F.3d 1085, 1092–93 (9th Cir. 2005). The Third, and

now the Eleventh, Circuits seem to oscillate between

holding that a state court’s procedural affirmance

16

obviates any need to defer to the prior merits decision,

see App. 224; Thomas v. Horn, 570 F.3d 105, 115 (3d

Cir. 2009), and holding that deference is due to a state

court’s merits ruling so long as nothing in the appellate court’s ruling undermined the ruling below, see

Collins v. Secretary of Pa. Dep’t of Corr., 742 F.3d 528,

545–46 (3d Cir. 2014); Loggins v. Thomas, 654 F.3d

1204, 1217–18 (11th Cir. 2011). This Court should settle the dispute here.

The dispute is far from academic. As the Eleventh

Circuit recognized, “[a]s is often the case when considering a state prisoner’s habeas petition, the applicable

standard of review is of critical importance.” App. 232.

In the normal course, strict AEDPA deference would

have applied to the state court merits determination.

See pp.12–14, supra. And, because Williams brought

ineffective assistance of counsel claims, federal court

review would have been doubly deferential to the

state court determination. As this Court has held,

“[e]stablishing that a state court’s application of

Strickland was unreasonable under § 2254(d) is all

the more difficult” because “[t]he standards created by

Strickland and § 2254 are both highly deferential and

when the two apply in tandem, review is doubly so.”

Harrington, 562 U.S. at 105 (quotation marks omitted). A federal court’s analysis would be informed by

the “general” nature of Strickland’s standard: general

rules offer courts greater “leeway . . . in reaching outcomes in case-by-case determinations.” Yarborough v.

Alvarado, 541 U.S. 652, 664 (2004); see also Harrington, 562 U.S. at 105 (“The Strickland standard is a

general one, so the range of reasonable applications is

substantial.”). When § 2254(d) applies to a Strickland

claim, “the question is not whether counsel’s actions

were reasonable”; instead, “[t]he question is whether

17

there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Harrington,

562 U.S. at 105.

Instead, once the Eleventh Circuit determined

that Section 2254(d) did not apply, the district court

was free to review the claim de novo. App. 4. Rather

than apply the proper “doubly deferential” standard,

the federal court came to its own determination of the

merits of Williams’s claim. Far from showing “respect

for the state court judgment,” App. 236, the Eleventh

Circuit invited the district court to undermine and reopen a decades-old conviction. This was improper. As

this Court recently reminded lower courts, “a federal

habeas court may never needlessly prolong a habeas

case.” Shinn, 596 U.S. at 390 (quotation marks omitted).

The Eleventh Circuit below failed to apply the deference that AEDPA requires and thereby unreasonably displaced strong state interests. Because federal

habeas review undermines a State’s sovereign authority over its own criminal adjudication, courts must apply it sparingly; overbroad use of federal habeas review subverts the dual sovereignty that federalism is

meant to protect. Those principles, bolstered by the

text of AEDPA, require genuine AEDPA deference

here—deference that the Eleventh Circuit refused to

apply below.

III. Adoption of the Eleventh Circuit’s rule seriously

harms state court practice and procedure

The Eleventh Circuit’s rule also ignores practical

considerations specific to state courts. It is incorrect

to assume that state appellate courts disagree with

merits decisions when they affirm judgments on procedural grounds. A federal assumption that a

18

procedural affirmance signals disagreement with an

underlying merits determination would require state

courts of appeals to alter their opinion writing process

to reach the same result by different means—an unnecessary and improper cost imposed on state courts.

Many state appellate courts face a heavy caseload

and will affirm on the simplest grounds in the interest

of judicial economy. As this Court has observed, “the

caseloads shouldered by many state appellate courts

are very heavy, and the opinions issued by these

courts must be read with that factor in mind.” Johnson v. Williams, 568 U.S. 289, 300 (2013). Moreover,

“there are instances in which a state court may simply

regard a claim as too insubstantial to merit discussion,” and some state courts have “expressly stated

that [they have] no obligation to address claims that

lack arguable merit.” Id. at 299. It is unreasonable for

a federal habeas court to assume that a state court’s

procedural affirmance implicitly overrules the prior

merits determination when the state court said nothing disagreeing with that determination or even calling it into question.

Thus, federal courts should not interpret a state

appellate procedural affirmance as if “it disagreed

with or meant to discredit” the merits determination.

Hammond v. Hall, 586 F.3d 1289, 1331 (11th Cir.

2009). All that a federal habeas court should infer

from such an affirmance is that the state court “believed that was the easier route,” rather than that it

“disagreed with or meant to discredit the different

route the trial court took to the same destination.”

Ibid.

If federal courts assume otherwise, state appellate

courts in practice will be forced to change their

19

opinion writing to assuage federal courts—an improper federal intrusion into the state judiciary. State

courts that currently affirm merits decisions on the

simplest possible grounds would be forced instead to

add a new merits section to such opinions simply to

mollify federal habeas courts. But “federal courts have

no authority to impose mandatory opinion-writing

standards on state courts.” Johnson, 568 U.S. at 300;

see also Coleman v. Thompson, 501 U.S. 722, 739

(1991) (“[W]e have no power to tell state courts how

they must write their opinions.”). A federal court undermines the state-federal comity that AEDPA is intended to protect by denying deference to a state trial

court holding that no state court ever overruled.

It is unreasonable and incorrect for federal courts

to assume that a procedural affirmance is intended to

obviate a prior merits ruling. Federal courts should

not force state courts to alter their manner of explaining their case adjudications based on this erroneous

assumption.

CONCLUSION

This Court should grant the petition.

20

January 25, 2024

Respectfully submitted,

JASON S. MIYARES

Attorney General

of Virginia

ANDREW N. FERGUSON

Solicitor General

Counsel of Record

KEVIN M. GALLAGHER

Deputy Solicitor

General

ERIKA L. MALEY

Principal Deputy Solicitor

General

RICK W. EBERSTADT

Assistant Solicitor

General

OFFICE OF THE VIRGINIA

ATTORNEY GENERAL

202 North Ninth Street

Richmond, Virginia 23219

(804) 786-2071

aferguson@oag.state.va.us

Counsel for Amicus Curiae the Commonwealth of Virginia

21

Counsel for Additional Amici States

TREG TAYLOR

Attorney General

State of Alaska

ASHLEY MOODY

Attorney General

State of Florida

RAÚL R. LABRADOR

Attorney General

State of Idaho

THEODORE E. ROKITA

Attorney General

State of Indiana

BRENNA BIRD

Attorney General

State of Iowa

KRIS KOBACH

Attorney General

State of Kansas

RUSSELL COLEMAN

Attorney General

Commw. of Kentucky

LIZ MURRILL

Attorney General

State of Louisiana

LYNN FITCH

Attorney General

State of Mississippi

ANDREW BAILEY

Attorney General

State of Missouri

AUSTIN KNUDSEN

Attorney General

State of Montana

MICHAEL T. HILGERS

Attorney General

State of Nebraska

ALAN WILSON

Attorney General

State of South Carolina

MARTY JACKLEY

Attorney General

State of South Dakota

KEN PAXTON

Attorney General

State of Texas

SEAN D. REYES

Attorney General

State of Utah

PATRICK MORRISEY

Attorney General

State of West Virginia