Richter’s Scale: Proving Unreasonableness Under AEDPA

Category: Print Issues

Richter’s Scale: Proving Unreasonableness Under AEDPA

Josiah Rutledge

Volume 32

, Issue 2

Introduction

Imagine you are charged with stealing a pair of shoes from a charity auction.¹ You persistently proclaim your innocence, but the evidence against you is strong and you are convicted. After trial, you learn that, during the investigation into the theft, another suspect confessed to the police. No one disclosed this confession to you or your lawyer before trial. You immediately file a petition for post‑conviction relief in state court, alleging a violation of your due process rights under Brady v. Maryland.² To have your conviction reversed, you must show (among other things) that there is a reasonable probability that the outcome of your trial would have been different if the confession had been disclosed.³ The state‑court judge, however, is not so keen on engaging in that “factually complex” inquiry.⁴ So he decides to resolve your case using the simplest, most efficient method he knows: asking a fortune teller. Consulting the fortune teller’s tarot cards, the judge concludes that the undisclosed confession was not material and denies your request for relief in a written opinion explaining his decision‑making process (tarot cards and all).

Understandably perturbed, you file a petition for a writ of habeas corpus in federal court, raising the same Brady claim. The district court conducts a thorough review of your claim and issues a thorough opinion. First, the court expresses its firm conviction that your Brady rights were violated—the confession was favorable to you, it was suppressed by police, and it is material.⁵ At this point, you start to get your hopes up, but you read on. Next, the court explains that the state court “adjudicated” your Brady claim “on the merits,” meaning that the Antiterrorism and Effective Death Penalty Act of 1996’s (“AEDPA’s”) limitations on relief—known as Section 2254(d)—apply.⁶ No problem, you think: Section 2254(d) “stops short of imposing a complete bar” to relief, and preserves a role for federal courts to “guard against extreme malfunctions in the state criminal justice systems.”⁷ Surely, you think, using fortune tellers and tarot cards to decide a constitutional claim is exactly the sort of malfunction that warrants relief under Section 2254(d).

The court next considers, as required by Section 2254(d), the “arguments or theories [that] supported” the state court’s decision—namely, the tarot cards—and concludes that “fairminded jurists” would unanimously agree that this rationale was inconsistent with clearly established federal law.⁸ Outstanding, you think: Section 2254(d) will not bar relief. But the court continues, explaining that, under circuit precedent, it must also consider reasons that “could have supported” the state court’s decision and ask whether they were similarly unreasonable—even if those hypothesized reasons in fact played no role in the state court’s decision.⁹ To that end, the court considers the possibility that the strength of the evidence against you rendered the confession immaterial.¹⁰ Although the court finds that argument clearly erroneous, it notes that even clear error “will not suffice” for purposes of Section 2254(d).¹¹ The court concludes that a fairminded‑but‑mistaken judge could find the evidence so overwhelming that the confession was not material, and thus that Section 2254(d) forbids it from granting your petition. Begrudgingly, it denies relief.

This result is shocking, but it is the law in at least some circuits.¹² The Seventh Circuit has even explicitly addressed the tarot card scenario (albeit in dicta):

[I]t is clear that a bad reason does not necessarily mean that the ultimate result was an unreasonable application of established doctrine. A state court could write that it rejected a defendant’s claim because Tarot cards dictated that result, but its decision might nonetheless be a sound one. If a state court’s rationale does not pass muster under the . . . standard for Section 2254(d)(1) cases, the only consequence is that further inquiry is necessary.¹³

This result stems from a fundamental misreading of the Supreme Court’s decision in Harrington v. Richter.¹⁴ Although Richter shows that, in some cases, a federal court must search for hypothetical reasons that “could have supported” the state‑court decision, applying that approach broadly overreads Richter. Rather, federal courts should understand a finding that no “argument[] or theor[y] . . . could have supported” the state‑court decision as one nonexclusive path to satisfying Section 2254(d)’s requirements.¹⁵ On some sets of facts—such as Richter itself—it is, as a practical matter, the only path. But transforming that practical requirement for some cases into a legal requirement for all cases turns Richter on its head. On some facts—such as the tarot card hypothetical—courts can and should travel another path.

The scope of the “could have supported” framework¹⁶ is “of considerable consequence.”¹⁷ For one thing, it strikes at a central issue in federal habeas corpus law: AEDPA is “the most significant habeas reform since 1867,”¹⁸ Section 2254(d) is its “centerpiece,”¹⁹ and the key underlying question—the extent to which Section 2254(d) “target[s] the state court’s ‘opinion’”— “goes to the heart” of Section 2254(d).²⁰ For another, the framework’s applicability is outcome determinative in cases where (1) the underlying claim is meritorious, (2) the state court’s written opinion fails to meet even Section 2254(d)’s minimal standards, and (3) a hypothetical reasonable‑but‑erroneous rationale for denying the claim exists that would meet those standards.²¹

Though a trilogy of recent cases has prompted a wave of scholarship on the Great Writ’s nature, history, and purpose,²² neither the Supreme Court nor any scholar has squarely addressed the scope of Richter’s “could have supported” framework or its effect on the role of written state‑court opinions.²³ This Article aims to fill that void. In Part I, the Article provides the necessary background on the framework and its history. Section I.A spells out how courts apply the framework, while Section I.B places it within the broader historical context of federal relitigation, including both Richter and Wilson v. Sellers,²⁴ the first case to address (and limit, albeit to an unclear extent) the framework’s scope.

In Part II, this Article examines the difficulties courts and commentators face in delineating the framework’s proper scope. Section II.A explains the apparent tension between three lines of cases in which the Supreme Court applied Section 2254(d) to claims requiring a prisoner to prove multiple elements. Section II.B then examines the approaches lower courts have taken, explaining that, while each has some appeal, none fully resolves the tension in the Supreme Court’s Section 2254(d) jurisprudence.

In Part III, this Article begins to sketch a theory of the “could have supported” framework by first articulating a broader theory of Section 2254(d). In Section III.A, this Article explains that Section 2254(d) is not a modification of the merits inquiry, but a separate and independent requirement for relief. To overcome Section 2254(d), a prisoner must prove the state court committed some “qualifying error.” In Section III.B, this Article identifies the components of a qualifying error. Such errors must be of the right type, be of sufficient severity, and have some potential effect on the state court’s decision.

Finally, in Part IV, this Article argues that the “could have supported” framework is best understood as a path to proving that a qualifying error occurred. It is a function of (1) the nature of the qualifying‑error inquiry, (2) the burden of proof, and (3) the quantum of available evidence. It is not a freestanding requirement for relief. Instead, it is a type of evidence that may, in appropriate circumstances, support the inference that a qualifying error has occurred.

I. The “Could Have Supported” Framework

In Richter, the Supreme Court laid out the following framework:

Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court’s decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.²⁵

This Part lays the groundwork for a proper understanding of this framework and its scope. It first discusses the analysis that a court must conduct when applying the “could have supported” framework. Then, this Part examines the historical and factual context in which Richter and Wilson arose to see what light they shed on the framework’s scope.

A. The “Could Have Supported” Analysis

As the above‑quoted language suggests, the “could have supported” framework proceeds in two steps.²⁶ First, the habeas court must identify every possible “argument[] or theor[y]” that could justify the state court’s denial of the petitioner’s claim.²⁷ Second, it must evaluate each argument and theory to see if any surmount Section 2254(d)’s low bar. Together, these steps require a state court to “craft a story that makes the state result justifiable.”²⁸

There is debate about the scope of a court’s duties in the first step. Judge Calabresi describes it as requiring a federal court to “imagine” potential rationales, including ones the state courts “never in fact espoused.”²⁹ The Fifth Circuit understood its task in precisely this way, describing its perceived duty to “invent possible avenues the state court could have relied upon.”³⁰ The Supreme Court’s description of the inquiry as requiring analysis of “hypothetical reasons” that a “state court might have given” supports this view.³¹ But Justice Gorsuch disputes that the framework requires so much, calling such descriptions “caricature[s].”³² In his view, “a federal court generally isn’t required to imagine or hypothesize arguments that neither the parties before it nor any lower court has presented.”³³ Instead, it need only consider the state court’s “opinion (if there is one), any argument presented by the parties in the state proceedings, and any argument presented in the federal habeas proceeding.”³⁴

Regardless of the particulars, the result will be a list of “arguments or theories [that] supported or . . . could have supported, the state court’s decision.”³⁵ The court must then ask “whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court”³⁶—a straightforward application of the normal Section 2254(d) analysis to a particular argument.³⁷ Taken together, the two steps require that, if any “plausible argument exists to support the ruling, [the court] defer[s].”³⁸

1. Double Hypothesizing

Because habeas petitioners raise claims of ineffective assistance of counsel under Strickland v. Washington³⁹466 U.S. 668 (1984). more often than any other claim (and because they are used below to illustrate some of the tensions in Section 2254(d) jurisprudence⁴⁰), it is worth pausing to consider how this framework applies to such claims.⁴¹ One element of a Strickland claim is deficient performance.⁴² Not just any attorney error will do; the errors must be “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”⁴³ Similarly, Section 2254(d) requires more than an “ordinary error”; the writ may issue only “where there is no possibility fairminded jurists could” agree with the state court’s decision.⁴⁴ Both standards are “highly deferential,”⁴⁵ and when combined they create what has been called “double deference”⁴⁶—the federal court must defer to the state court, which must in turn defer to counsel.⁴⁷

Applying the “could have supported” framework leads to not only double deference, but also double hypothesizing. Because Strickland set out an objective standard, some courts ask only how “some reasonable lawyer could have conducted the trial,” rather than counsel’s actual reasons.⁴⁸ When combined with the “could have supported” framework, this requires federal courts to hypothesize what a state court could have hypothesized about how a reasonable lawyer could have conducted the trial.

Take the Eleventh Circuit’s decision in Hammond v. Hall,⁴⁹ for instance. In Hammond, the prosecutor argued—in violation of a Georgia statute—that the defendant should not be given a life sentence because he could one day be paroled.⁵⁰ Under the Georgia statute, this entitled the defendant to an automatic mistrial.⁵¹ Trial counsel, however, did not request a mistrial.⁵² He later explained that he failed to do so for a very simple reason: He did not know his client was entitled to one.⁵³ The state court, in turn, had written a sixty‑seven page opinion explaining its conclusion that counsel’s performance was not deficient.⁵⁴ But rather than assess the reasonableness of the actual reasons provided by trial counsel and the state court, the Eleventh Circuit instead hypothesized four rationales that the state court could have concluded could have motivated trial counsel.⁵⁵

As Hammond illustrates, applying the “could have supported” framework to Strickland claims produces an even more powerful form of deference.

B. The Framework in Context

A firm understanding of the “could have supported” framework and its scope requires not just a grasp of the framework itself, but also an understanding of the context—both legal and factual—that gave rise to it. In this Section, this Article examines (1) the pre‑AEDPA regime governing relitigation of claims previously rejected by state courts, (2) the adoption and early interpretations of Section 2254(d), and (3) the Court’s jurisprudence of the interplay between Section 2254(d) and unexplained state‑court decisions.

1. The Pre‑AEDPA Regime

AEDPA does not exist in a vacuum. Rather, it is part of the broader scheme of statutory and judge‑made law that governs federal habeas. Understanding the change Section 2254(d) wrought requires first understanding the regime and debates that predated it.

a. Brown v. Allen and Bator’s Critique

The scope of post‑conviction habeas before 1953 is hotly debated among both scholars⁵⁶ and jurists.⁵⁷ But no one disputes that the Supreme Court’s decision in Brown v. Allen⁵⁸344 U.S. 443 (1953). embodied “a regime of broad federal relitigation” of claims rejected by state courts.⁵⁹ In Brown, the Court held that, while a federal habeas court could “look to the State proceedings for whatever light they shed on the historical facts,” it was “for the federal judge to assess” the claim’s legal merits, without giving “binding weight” to the state court’s decision.⁶⁰ Together with decisions recognizing broad authority for federal courts to hold their own evidentiary hearings,⁶¹ decide claims not properly raised in state court,⁶² and consider habeas petitions from prisoners who had already been denied relief in federal court,⁶³ Brown produced a “Golden Age” of federal habeas.⁶⁴

That Golden Age was, like other parts of the Warren Court’s criminal docket, the subject of withering criticism from some corners.⁶⁵ The most prominent critic was Professor Paul Bator, who argued in a 1963 article—acknowledged even by its detractors as a “tour de force”⁶⁶—that federal review should focus not on the underlying merits of the petitioner’s claim, but rather on the adequacy of the state court’s processes for evaluating the claim.⁶⁷ Bator’s argument was in part historical, critiquing Brown as a departure from previous practice.⁶⁸ But it was also part epistemological. Bator emphasized that, even “[a]ssuming that there ‘exists,’ in an ultimate sense, a ‘correct’ decision of a question of law, we can never be assured that any particular tribunal has in the past made it.”⁶⁹ Therefore, he argued, “the notion of legality must at some point include the assignment of final competences to determine legality.”⁷⁰ Thus, he concluded that, where a court with jurisdiction employed “processes fairly and rationally adapted to” deciding constitutional claims and ultimately denied relief, that denial should be final absent “functional or institutional requirements” to the contrary.⁷¹

b. Teague v. Lane and Debate over Its Scope

There is debate over whether Brown itself required de novo review of claims that were previously rejected by state courts.⁷² Regardless, de novo review became the norm in Brown’s aftermath.⁷³ The Court breathed new life into arguments for more deferential review, however, when in Teague v. Lane⁷⁴489 U.S. 288 (1989) (plurality opinion). it revamped its doctrine regarding the application and development of “new” rules of criminal procedure.⁷⁵ Previous retroactivity doctrine relied on a multi‑factor balancing test that focused primarily on the nature of the rule in question.⁷⁶ The test considered the reliance interests of “law enforcement authorities,” but not of state courts.⁷⁷ Under Teague, by contrast, the focus shifted to the position of the state court that reviewed (or would have reviewed) the petitioner’s claim at the time. The primary question is now whether the rule in question was “new.”⁷⁸

In subsequent cases, the Court defined a “new” rule using language strikingly similar to what it would later use in Richter: A new rule is one that would not have been “apparent to all reasonable jurists” at the time the conviction became final.⁷⁹ The Court explained that the purpose of such a capacious definition was to “validate reasonable interpretations of existing precedents” by state courts.⁸⁰ This explanation suggested that the emphasis had now shifted to the decisions of state courts—vaguely reminiscent of a standard of review. There are, however, problems with viewing Teague as a new standard of review. For one, Teague applies even when there has not been a state‑court decision on the merits.⁸¹ For another, it requires application of some rules that were articulated after the last state‑court decision, such as those articulated while a petition for certiorari is pending.⁸² Thus, although Teague’s rationale focuses on state courts, its analysis remains focused on federal precedent.⁸³

Nevertheless, debates over Teague’s scope persisted, bubbling up to the Supreme Court in Wright v. West.⁸⁴ Writing for a plurality, Justice Thomas maintained that Teague “implicitly questioned” the de novo standard of review by requiring a federal habeas court to “defer to the state court’s decision rejecting the claim unless that decision is patently unreasonable.”⁸⁵ He acknowledged, however, that Teague was “not directly controlling” as to mixed questions of law and fact.⁸⁶ In her concurrence, Justice O’Connor—Teague’s author—criticized Justice Thomas for “mischaracteriz[ing] Teague,” which in her view “is not the same as deference” and “did not establish a standard of review at all.”⁸⁷ Justice Kennedy agreed, writing that “it would be a misreading of Teague to interpret it as resting on the necessity to defer to state‑court determinations.”⁸⁸ Three years later, the Court in Thompson v. Keohane⁸⁹516 U.S. 99 (1995). put some of West’s potential implications to rest, reaffirming the Court’s pre‑West holding that mixed questions of law and fact were subject to de novo review in habeas.⁹⁰

On the eve of AEDPA, therefore, the scope of federal habeas review was “nearly identical” to the review exercised by the Supreme Court on direct appeal.⁹¹ Courts reviewed questions of fact deferentially and questions of law and mixed questions de novo, subject to Teague’s nonretroactivity rule (a rule that reinforced, rather than undermined, parity between habeas and direct appeal⁹²).⁹³

2. The Dawn of AEDPA

Having reached a “stalemate” in the courts, advocates for deferential review turned back to Congress.⁹⁴ Though previous calls for legislative intervention had been rebuffed,⁹⁵ a great national tragedy would propel this one to success. In the aftermath of the Oklahoma City bombing, calls for new legislation finally prevailed.⁹⁶ But the statute is far from clear, and it is widely panned for its poor draftsmanship.⁹⁷ As the Court put it, “in a world of silk purses and pigs’ ears, the Act is not a silk purse of the art of statutory drafting.”⁹⁸ Justice Sotomayor once opined that “[t]here’s nothing logical about this statute, or clear about this statute.”⁹⁹ Justice Scalia apparently agreed, asking “who’s responsible for writing this[?]”¹⁰⁰ The legislative debates and reports had little to say about Section 2254(d), meaning that the legislative history is “unilluminating,”¹⁰¹ even for those inclined to look to it.¹⁰²

Larry Yackle nicely summarized how decades of debate culminated in such an enigmatic text:

The new law is not well drafted. It bears the influence of various bills that were fiercely debated for nearly forty years. Along the way, proponents of habeas legislation adjusted their initiatives in light of contemporaneous events and circumstances: the Powell Committee Report in 1989, for example, as well as shifting levels of political support for particular measures and new Supreme Court decisions on point. Proponents often kept abreast of the times by adding new elements to their bills without, at the same time, reexamining old formulations in order to maintain an intellectually coherent whole. The result, I am afraid, is extraordinarily arcane verbiage that will require considerable time and resources to sort out.¹⁰³

Courts were thus left with the difficult task of liquidating Section 2254(d)’s precise meaning.¹⁰⁴ Unsurprisingly, lower courts did so in “sharply divergent” ways.¹⁰⁵ One common interpretation viewed Section 2254(d)’s three clauses as effectively establishing appellate standards of review—with the “contrary to” clause governing pure questions of law, the “unreasonable application” clause governing mixed questions, and paragraph (d)(2) governing pure questions of fact.¹⁰⁶ Some courts also viewed an “unreasonable application” as one “that all reasonable jurists would agree is incorrect.”¹⁰⁷ At least two circuits—the Fifth and the Eleventh—adopted both positions.¹⁰⁸

The Supreme Court was mostly silent during this period. Although it granted certiorari in the Seventh Circuit’s key Section 2254(d) case, it decided only that the statute’s limitations on relief did not apply to cases filed before AEDPA was enacted.¹⁰⁹ The only substantive comment was a footnote observing that Section 2254(d) set forth a “new, highly deferential standard for evaluating state‑court rulings.”¹¹⁰ Until the turn of the millennium, that was all the Court had to say.

As cases filed after AEDPA’s effective date moved their way through the judiciary, however, things began to heat up in the Court’s nascent Section 2254(d) jurisprudence. In January of 2000, the Court decided Weeks v. Angelone,¹¹¹ the first case to invoke the new limitations on relief. Weeks established (without explanation) one potentially important doctrinal rule—that, if a state court decision is correct, “it follows a fortiori that the adjudication of the [state court] . . . neither was ‘contrary to,’ nor involved an ‘unreasonable application of,’” clearly established law.¹¹² The implications of this “a fortiori doctrine” are discussed below.¹¹³ But its application in Weeks prevented the Court from considering when Section 2254(d) might bar relief to which a prisoner was otherwise entitled. Justice Souter did consider that possibility, though, in his dissent in another case decided that day.¹¹⁴ Writing for himself and three others, he concluded that neither Section 2254(d) nor Teague precluded relief there because the rule at issue was clearly established, various state‑court holdings to the contrary notwithstanding.¹¹⁵ The majority in that case—unlike the Weeks majority—saw no need to mention Section 2254(d) at all, because it found no constitutional violation.¹¹⁶

The Section 2254(d) invocations in these cases proved only an appetizer for the blockbuster decision three months later in Williams v. Taylor,¹¹⁷ the Court’s “foundational” Section 2254(d) case.¹¹⁸ Like Brown before it,¹¹⁹ Williams produced two majority opinions—the portion of Justice O’Connor’s opinion that construed Section 2254(d) in the abstract and the portion of Justice Stevens’s opinion that applied it to the case at hand.¹²⁰ Justice O’Connor insisted on according “independent meaning to both the ‘contrary to’ and ‘unreasonable application’ clauses of the statute.”¹²¹ But in lieu of the “appellate standards of review” approach, she largely adopted the Fourth Circuit’s framework, which viewed the separate clauses of Section 2254(d) not as different inquiries for different situations, but as independent paths to overcoming the limitations on relief.¹²² She explained that a decision is “contrary to” clearly established law if it applies a legal rule that “contradicts” Supreme Court precedent or reaches a different result on “materially indistinguishable” facts.¹²³ By contrast, a decision is an “unreasonable application” of clearly established law if it “unreasonably applies” the governing legal rule to the facts or if it extends (or fails to extend) precedent in unreasonable ways.¹²⁴ If the state decision fell into any of these categories, federal review was “unconstrained by” Section 2254(d).¹²⁵

She rejected, however, the Fourth Circuit’s application of the “all reasonable jurists” standard.¹²⁶ Although she found it “difficult to fault” lower courts for adopting “nearly identical terminology” to what the Court itself had employed under Teague, she emphasized the objective nature of the reasonableness standard.¹²⁷ In her view, Congress drew the same distinction between “unreasonable” and “incorrect” that she and Justice Thomas had each drawn in West, siding with Justice Thomas on the implications of that distinction.¹²⁸ Williams thus made clear that Section 2254(d) “is a significant change from Brown.”¹²⁹ It did not, however, explore the unreasonable–incorrect dichotomy “in any helpful detail.”¹³⁰

3. The Unexplained Decisions Cases

For nearly a decade after Williams, explanations accompanied the state‑court determinations at issue in the Court’s Section 2254(d) cases.¹³¹ That arrangement couldn’t last long, however. During this time, the California Supreme Court—the highest court in the most populous state in the union—was disposing of the vast majority (97%) of habeas petitions in unexplained summary denials,¹³² commonly known as “postcard denials.”¹³³ That practice was destined to collide with Section 2254(d) jurisprudence.

a. Knowles v. Mirzayance: A Crisis Delayed

The Court dodged that collision, however, in Knowles v. Mirzayance,¹³⁴ the first summary denial case to reach the Court under Section 2254(d). After Alexandre Mirzayance was convicted of first‑degree murder, he raised an ineffective assistance of counsel claim in the California courts, which denied it without comment.¹³⁵ When the case reached the Supreme Court, the National Association of Criminal Defense Lawyers (“NACDL”) flagged the potential difficulties with applying Section 2254(d) to such denials, urging the Court in an amicus brief to instead conclude that postcard denials do not constitute adjudications on the merits and thus are not covered by Section 2254(d).¹³⁶ Perhaps heeding NACDL’s warnings, the Court dodged the issue, applying Section 2254(d) on the ground that Mirzayance had abandoned the issue.¹³⁷ The Court covered its bases, however, separately explaining why Mirzayance’s constitutional rights had not been violated,¹³⁸ meaning he was not entitled to relief even if Section 2254(d) did not apply. NACDL’s warnings seemingly caught the attention of three Justices, however: Justices Scalia, Souter, and Ginsburg each declined to join the portion of the Court’s opinion applying Section 2254(d), instead joining only the portion explaining that Mirzayance’s claims lacked merit.¹³⁹

b. Harrington v. Richter: Evaluating “Postcard Denials”

Just months after Mirzayance, the Court granted certiorari in Richter.¹⁴⁰ In addition to the question presented in the petition for certiorari, the Court asked the parties to brief and argue the postcard denial issue.¹⁴¹ Like Mirzayance, Joshua Richter raised an ineffective assistance claim in the California state courts, which rejected it without comment.¹⁴² The Court first considered whether such a denial is an adjudication on the merits that triggers Section 2254(d)’s limitations, concluding that they should be treated as such “in the absence of any indication or state‑law procedural principles to the contrary.”¹⁴³

In reaching that conclusion, the Court rejected NACDL’s warnings that unexplained orders do not provide federal courts “the resources necessary to make the assessments the statute requires.”¹⁴⁴ Having rejected those warnings, the Court needed to answer the logical follow‑on question: How can a habeas petitioner show that the state court’s decision was sufficiently unreasonable without resort to the usual tool (i.e., the state court’s opinion)? According to the Court, a petitioner could do so only “by showing there was no reasonable basis for the state court to deny relief.”¹⁴⁵ That burden could be met, the Court explained, only by satisfying the “could have supported” framework.¹⁴⁶ Applying that framework, the Court denied relief.¹⁴⁷

c. Hittson v. Chatman: A Rejoinder

As commentators recognized, Richter “raised more questions than it answered”¹⁴⁸—including questions about the scope of the newly minted “could have supported” framework.¹⁴⁹ The first such question to reach the Court was how to handle cases where the last state‑court decision was an unexplained order, but a previous state court had issued an opinion explaining its own denial of the claim. That issue was first addressed in Justice Ginsburg’s concurrence in the denial of certiorari in Hittson v. Chatman.¹⁵⁰ In Hittson, the trial court denied the petitioner’s federal claims in a reasoned opinion, but the Georgia Supreme Court denied them without explanation.¹⁵¹ Relying on Richter, the Eleventh Circuit emphasized it was “not reviewing the reasoning announced by” the trial court, but rather reviewing the summary decision of the Georgia Supreme Court using the “could have supported” framework.¹⁵² As the concurring judge explained, whether the trial court’s rationale cleared Section 2254(d) was “irrelevant.”¹⁵³

In Justice Ginsburg’s view, “[t]he Eleventh Circuit plainly erred” in applying the “could have supported” framework rather than the “look‑through” approach that the Court had previously established in the procedural default context, under which a federal court presumes a silent state court adopted the rationale of a previous state court that had also denied the claim.¹⁵⁴ She distinguished such situations from the situation in Richter, where “no state court” issued an explanation, thus making “Richter’s hypothetical inquiry . . . necessary.”¹⁵⁵ Nevertheless, she agreed with the decision to deny certiorari, in part because a petition for rehearing en banc then pending in another case would “afford[] the Eleventh Circuit an opportunity to correct its error.”¹⁵⁶

d. Wilson v. Sellers: The Look‑Through Rule

Perhaps swayed by Justice Ginsburg’s rejoinder,¹⁵⁷ the Eleventh Circuit granted the petition for en banc review, and Georgia “changed its position,” arguing that the Eleventh Circuit should evaluate the reasons given by the state trial court.¹⁵⁸ Justice Ginsburg’s influence went only so far, however: The Eleventh Circuit ultimately sided with the amicus curiae it had appointed to defend its Hittson approach.¹⁵⁹ The Supreme Court granted certiorari in that case, now captioned Wilson v. Sellers.¹⁶⁰

Relying in part on Justice Ginsburg’s Hittson concurrence, the Wilson Court likewise distinguished the summary denial in Wilson from the summary denial in Richter and declined to apply the “could have supported” framework, instead applying the “look through” approach.¹⁶¹ It concluded (quoting the Hittson concurrence) that a federal habeas court must “train its attention on the particular reasons—both legal and factual—why state courts rejected a state prisoner’s federal claims”¹⁶² and then “defer[] to those reasons if they are reasonable.”¹⁶³

II. Drawing the Richter–Wilson Line

After Richter and Wilson, two things are clear. First, in some circumstances, Section 2254(d) requires a federal habeas court to apply the “could have supported” framework. If that were not so, Richter would not have enunciated the framework. Second, in some circumstances, the actual reasons employed by the state court make a difference. If that were not so, the question presented in Wilson—whether to consider a lower state court’s reasoning—would be meaningless.¹⁶⁴ Between these two fixed points lies much uncertainty, however. Lower courts are divided on the proper place of each approach, and thus on the proper place of a state‑court opinion in the Section 2254(d) analysis.¹⁶⁵ This Part surveys the obstacles lower courts face in drawing the line between Richter and Wilson and their valiant—though ultimately ill‑fated—attempts to elucidate it.

A. Doctrines in Tension

Three doctrines involving the application of Section 2254(d) to multipart claims (i.e., those that require the petitioner to prove more than one element) that have been adjudicated on the merits in state court present crucial obstacles to a satisfactory analysis of the “could have supported” framework.

1. The Doctrines

Although these doctrines apply to all such claims,¹⁶⁶ for simplicity’s sake this Article illustrates them using the two‑prong test for ineffective assistance of counsel—the context in which “most disputes of this kind arise.”¹⁶⁷ To show a constitutional violation under Strickland, a defendant must show (1) deficient performance by his counsel and (2) resulting prejudice.¹⁶⁸ A court has only one path to finding a constitutional violation: finding both prongs satisfied.¹⁶⁹ On the other hand, a court can choose between several paths to finding no violation: finding that the defendant (1) satisfied neither prong, (2) satisfied one prong but not the other, or (3) failed to satisfy one prong without deciding whether he satisfied the other.¹⁷⁰ And, under Richter, Section 2254(d) applies even if the state court denies the claim without specifying which path it has chosen.¹⁷¹

Each path implicates a different doctrine under the Court’s Section 2254(d) jurisprudence. A decision to deny the claim on only one prong implicates the partial adjudication rule of Wiggins v. Smith.¹⁷² A decision to deny relief under both prongs implicates the alternative ground doctrine of Wetzel v. Lambert.¹⁷³ And a court’s decision not to reveal which path it took implicates Richter’s presumption of full adjudication.¹⁷⁴

a. The Partial Adjudication Rule

Under the partial adjudication rule, when a state court denies a claim on one element of a multipart claim and either does not decide the other elements or finds that they were satisfied, a federal habeas court evaluates the other elements unfettered by Section 2254(d).¹⁷⁵ This rule appears first in Williams,¹⁷⁶ though it was not explicitly stated until Wiggins. In Wiggins, both state courts found that counsel had not performed deficiently, and thus neither addressed Strickland’s prejudice prong.¹⁷⁷ After concluding that counsel’s performance was deficient (and that the state‑court determination to the contrary was unreasonable), the Court reviewed the prejudice prong de novo. It observed that federal “review is not circumscribed by a state court conclusion with respect to prejudice” where “neither of the state courts below reached this prong of the Strickland analysis.”¹⁷⁸

Citing Wiggins, the Court stated the rule even more clearly in Rompilla v. Beard:¹⁷⁹ “Because the state courts found the representation adequate, they never reached the issue of prejudice, and so we examine this element of the Strickland claim de novo . . . .”¹⁸⁰ And in Porter v. McCollum,¹⁸¹ the Court relied on Rompilla to apply the same rule when performance rather than prejudice was the unadjudicated prong.¹⁸² Although the partial adjudication rule applies most frequently to Strickland claims,¹⁸³ the Court applied the same rule to an intellectual disability claim in Brumfield v. Cain.¹⁸⁴

b. The Alternative Ground Doctrine

The next doctrine, which the Fourth Circuit dubbed the “alternative ground” doctrine,¹⁸⁵ stems from Wetzel v. Lambert.¹⁸⁶ Under the alternative ground doctrine, a state court’s unreasonable decision on one prong of a multipart claim does not by itself overcome Section 2254(d)’s barrier to relief; instead, that barrier is lifted only if “each ground supporting the state court decision is examined and found to be unreasonable under AEDPA.”¹⁸⁷ In Wetzel itself, the state court rejected the defendant’s Brady claim by finding that the suppressed evidence was both “not exculpatory or impeaching” and not material.¹⁸⁸ The Third Circuit granted relief, finding that the claim was meritorious and that the materiality determination rested on a “patently unreasonable” view of impeachment evidence.¹⁸⁹ The Supreme Court vacated, remanding for the lower courts to determine whether the state court’s conclusion that the suppressed material was not favorable to the defendant but rather “entirely ambiguous” was likewise unreasonable.¹⁹⁰

The Court has applied the alternative ground doctrine in two cases since Wetzel. One was a relatively straightforward application of the rule to a Strickland claim: The state court denied the claim on both prongs, the prejudice determination was not unreasonable, and thus the alternative ground doctrine barred relief regardless of the reasonableness of the performance determination.¹⁹¹ The other, Parker v. Matthews,¹⁹² was less straightforward and may suggest that the alternative ground doctrine applies outside of the multipart claim scenario, discussed in greater detail below.¹⁹³

c. The Presumption of Full Adjudication

The third and final relevant doctrine for multipart claims is Richter’s rule that, when a state court denies a claim “without providing its rationale, it is presumed that the state court adjudicated [all] components of the claim.”¹⁹⁴ As Richter explained:

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.¹⁹⁵

This is a straightforward application of the “could have supported” framework in its natural habitat: unexplained state‑court decisions.

2. The Tension

The tension between these three doctrines is best illustrated by comparing the protection Section 2254(d) affords a state‑court decision in each Strickland scenario. If a state court provides a reasoned rejection of neither prong, it receives deference on both—the same deference it would have received if it had provided a reasoned rejection of both. On the other hand, a state court that provides a reasoned rejection of one prong and stops there receives deference on only that prong. It is counterintuitive (to say the least) that a state court that explains its decision is entitled to less respect than a state court that does not¹⁹⁶—especially given that Strickland explicitly invites¹⁹⁷ (and principles of judicial restraint arguably require¹⁹⁸) one‑prong‑only adjudications.

This Article is hardly the first to note this tension.¹⁹⁹ In particular, commentary on the tension between the partial adjudication rule and the presumption of full adjudication has been prevalent, and the question of whether these “cases can co‑exist” has “generat[ed] some conflict” among the federal courts of appeals.²⁰⁰ As the Third Circuit has noted, the effect of Richter on “the teachings from Wiggins” is a “complicated question,” because Richter “arguably undermines” the partial adjudication rule.²⁰¹ The en banc Eleventh Circuit noted that Richter “suggests” the partial adjudication rule “may no longer be good law.”²⁰² Judge Easterbrook agrees, arguing that “the Supreme Court ought to revisit” the partial adjudication rule in light of Richter²⁰³Thomas, 797 F.3d at 448. and hold that Section 2254(d) “governs both elements of Strickland once the state judiciary decides an ineffective‑assistance claim,” regardless of how the claim was decided.²⁰⁴ In his view, Richter “impl[ies] that, when a state court gives one sufficient reason and stops, the claim has been fully adjudicated.”²⁰⁵ Nevertheless, the majority of courts that have considered the issue have concluded (and this Article takes the position²⁰⁶) that the partial adjudication rule survives Richter,²⁰⁷ and the Supreme Court applied it four years after Richter in Brumfield.²⁰⁸

3. The (Non)Explanations

This tension can be explained in two ways. First, accept that the doctrines are irreconcilable.²⁰⁹ This is an unattractive option: Lower courts are bound to apply all three until the Supreme Court says otherwise,²¹⁰ and the Court is loath to overrule itself, especially on issues of statutory interpretation.²¹¹ Moreover, it is unnecessary. As this Article explains, the task of reconciling these doctrines in a principled way is difficult, but not impossible. It is worth considering, however, why this knot is so difficult to untie. That leads to the second explanation: The relevant legal materials—AEDPA’s text and the Supreme Court’s decisions—have been spectacularly unclear.

Some of the blame lies at Congress’s feet, and some at the Court’s. On the former front, this Article has already explained the criticisms of AEDPA’s draftsmanship.²¹² Compounding that lack of clarity, Section 2254(d)’s language “had no prior habeas history or pedigree”; that is, it was not derived from case law or previous reform proposals.²¹³ Thus, it is difficult to tell what, if any, “old soil” it brings with it.²¹⁴

The Supreme Court also bears a portion of the blame, having given little-to-no explanation of the doctrines’ foundations or rationales. Take the development of the partial adjudication rule, for instance, which Judge Easterbrook described as “the judicial equivalent of a rumor chain”:²¹⁵

* Williams applies the rule without even acknowledging that it is doing so.²¹⁶

* Wiggins states simply (and without citation to authority) that federal “review is not circumscribed by a state court conclusion with respect to prejudice” because “neither of the state courts below reached this prong of the Strickland analysis.”²¹⁷ It never explained why the state courts’ partial adjudications led to this conclusion.

* Rompilla similarly explained that the Court would “examine this element of the Strickland claim [(i.e., prejudice)] de novo” because the state courts “never reached the issue of prejudice.”²¹⁸ It cited only Wiggins and offered no further explanation.²¹⁹

* Porter (relying solely on Rompilla) explained that “we review [performance] de novo” “[b]ecause the state court did not decide whether Porter’s counsel was deficient.”²²⁰

The only time the Court even hinted at an explanation of the partial adjudication rule was Brumfield’s opaque statement that, because the state court had “never made any finding” on the prong at issue, there was “no determination on that point to which a federal court must defer.”²²¹ Judge Easterbrook was right to call these “drive‑by statements.”²²²

The alternative ground doctrine has not been given any clearer footing. Wetzel—the case establishing the doctrine—cites only six cases, three of which were prior proceedings in the prisoner’s case.²²³ Two others—Brady and Strickler v. Greene²²⁴527 U.S. 263 (1999).—were cited only for the basics of the prisoner’s specific constitutional claim.²²⁵ That leaves only one citation to a Section 2254(d) case: Richter.²²⁶ And the Court did not explain how Richter, the text of Section 2254(d), or any other authority or principle supported the alternative ground doctrine. Instead, it stated only that one reasonable conclusion by a state court would render unreasonable conclusions “beside the point.”²²⁷ The other two cases to apply the alternative ground doctrine likewise do not explain its basis, instead simply citing Wetzel.²²⁸ And the Wetzel dissent (the only recorded dissent in this line of cases) does not mention the doctrine.²²⁹

Perhaps the best‑explained of the three doctrines is the presumption of full adjudication. Even it, however, has been explained only in Richter’s “ironically terse” opinion.²³⁰ Immediately after concluding that postcard denials were presumptively “on the merits,” the Richter Court explained that the presumption of full adjudication grows out of “the habeas petitioner’s burden,” which (under the “could have supported” framework) required the petitioner to show that “there was no reasonable basis for the state court to deny relief.”²³¹

These doctrines stem from a statutory “pig’s ear.” And the cases establishing them not only “fail to build the bridge between the authorities they cite and the results they decree,”²³² but largely fail to cite any authorities at all. This may be in part because several of these cases (Porter, Wetzel, Matthews, and Kayer) were per curiam summary reversals—a disposition that occurs far more often in habeas cases than in any other context²³³ and does not lend itself to thorough explanations.²³⁴

B. The Circuit Split

Reflecting the confusion, the lower courts have split into effectively three approaches—two categorical and one “hybrid.”²³⁵ Each approach, however, either has significant theoretical problems or fails to account for the doctrines discussed above. This Section considers each in turn.

1. 1. The Expansive Approach

Under one approach, which this Article refers to as “the expansive approach,”²³⁶ federal courts should apply the “could have supported” framework in all cases that were adjudicated on the merits in state court, regardless of any state‑court opinion on the claim. These courts have “extended Richter’s logic to allow”—indeed, require—“federal habeas courts to hypothesize, in the face of an unreasonable and erroneous state court ruling, an alternative ground of decision.”²³⁷

One particularly vivid example is Holland v. Rivard.²³⁸ The petitioner claimed that his confession was inadmissible because it was obtained via a custodial interrogation that occurred after he invoked his right to counsel.²³⁹ The state court concluded that there was no interrogation—a conclusion the district court found unreasonable.²⁴⁰ The Sixth Circuit was willing to assume this conclusion was indeed unreasonable, but nevertheless felt bound by the “could have supported” framework to search for other reasonable justifications for denying the claim.²⁴¹ It found that justification in the argument that the petitioner was not “in custody” at the time he gave his confession—a completely unrelated part of the constitutional test.²⁴²

Rationales for this approach vary. Some courts have attempted to justify it as a matter of “the plain language of AEDPA,” arguing that Section 2254(d) “requires federal courts to examine the relevant state court ‘decision,’” rather than its reasoning.²⁴³ Others have argued that a focus on the state court’s opinion would be “unduly formalistic,” given that federal courts are perfectly capable of analyzing the full record.²⁴⁴ Since Richter, justifications of this approach have focused on Richter’s articulation of the “could have supported” framework, suggesting that it would be incongruous to have “two divergent analytical modes—one when there is no previous reasoned decision below and another for when there is.”²⁴⁵ And the approach has the advantage of apparently having three votes on the current Supreme Court: Justices Thomas and Alito both joined Justice Gorsuch’s dissent in Wilson, which argued that, even after Wilson, “a federal habeas court should look at all the arguments presented in state and federal court and examine the state court record” and “deny[] relief if those materials reveal a basis to do so reasonably consistent with” clearly established federal law.²⁴⁶

Parsimonious as it is, the expansive approach encounters serious problems. For one, the “plain language” rationale falls apart upon a closer reading of the text, which does not ask whether the “decision” was itself unreasonable, but whether it “involved an unreasonable application of” clearly established federal law.²⁴⁷ Even more concerningly, it is flatly inconsistent with Wilson, which rejected the application of the “could have supported” framework in situations “where there is a reasoned decision by a lower state court.”²⁴⁸ And it cannot account for the partial adjudication rule: If the state court’s reasons don’t matter, how can Section 2254(d)’s applicability turn on the reasons the state court gave?

2. The Narrow Approach

A second approach—which this Article refers to as “the narrow approach”—is nearly as categorical. Rather than viewing the “could have supported” approach as the rule, the narrow approach views it as a limited exception to the general rule that “a federal habeas court simply reviews the specific reasons given by the state court and defers to those reasons if they are reasonable.”²⁴⁹ In the ordinary case, therefore, a court applying the narrow approach must “review the actual grounds on which the state court relied,”²⁵⁰ and then ask “whether that explanation was reasonable thereby requiring [a federal court’s] deference.”²⁵¹ Thus, under the narrow approach, “if a state court articulates its reasoning, it is only that reasoning that receives deference.”²⁵² This does not mean, however, that a state court’s deficient reasoning is sufficient to warrant relief: While courts applying the narrow approach “afford . . . no deference” to unreasonable state‑court explanations,²⁵³ they may nevertheless reject a claim on the merits even after concluding that Section 2254(d) does not bar relief.²⁵⁴

The primary justification for the narrow approach mirrors the primary problem with the expansive approach: consistency with Wilson. Nearly every court to adopt the narrow approach post‑Wilson has cited Wilson in so doing.²⁵⁵ Some have also argued that Richter is limited “by its terms.”²⁵⁶ Others have argued that it would be illogical to defer to a rationale that we know did not exist, “disregard[ing] a state court’s expressed rationale . . . and presum[ing] instead that” state courts adopted a different rationale.²⁵⁷ Like the expansive approach, the narrow approach has multiple votes on the Supreme Court: Citing Wilson, Justice Sotomayor has explained, in an opinion joined by Justice Kagan, that “[w]hen a state court gives a reasoned explanation for its decision, federal habeas courts must review that decision on its own terms.”²⁵⁸

Ultimately, the narrow approach produces similar results to the approach this Article advocates below. However, it has its own share of struggles. Perhaps the foremost is explaining why the “could have supported” approach would ever apply if state‑court decisions are to be reviewed on their own terms. If bad reasons mean no deference, why shouldn’t no reasons mean no deference?²⁵⁹ The narrow approach also has trouble explaining another category of underexplained state‑court decisions: cases where the state court does not cite (or even exhibit awareness of) the controlling Supreme Court precedent. Under Early v. Packer,²⁶⁰ such decisions can still bar federal relief.²⁶¹ The narrow approach seemingly does not allow for that result. A state‑court decision that articulates reasons for denying a federal claim without reference to the governing legal standard nevertheless “explain[s] the rejection of a claim,”²⁶² thus limiting deference to that explanation under the narrow approach. Yet it certainly cannot stand “on its own terms”;²⁶³ the habeas court could find the decision reasonable only by supplying its own reason that the decision is consistent with federal law—a version of the “could have supported” framework.

3. The Eleventh Circuit’s Hybrid Approach

Perhaps recognizing the weaknesses of both more categorical approaches, the Eleventh Circuit recently adopted a sort of “hybrid” approach. Sitting en banc in Pye v. Warden, Georgia Diagnostic Prison,²⁶⁴ the court distinguished the “specific reasons given by the state court” from the “particular justifications that the state court provided.”²⁶⁵ Under Pye, a court “evaluate[s]” only “the reasons offered by the [state] court.”²⁶⁶ However, in justifying those reasons, the habeas court is “not limited by the particular justifications the state court provided for its reasons, and . . . may consider additional rationales that support the state court’s determination.”²⁶⁷ This approach thus applies a modified “could have supported” approach to all claims that were denied on the merits. Rather than asking what arguments could have supported any hypothetical reason to deny the claim, it asks what arguments could have supported denying the claim for the reason given by the state court.

The distinction between “specific reasons” and “particular justifications” is fuzzy, however—the Eleventh Circuit has never defined either, and has noted only that “reasons” are defined “at a relatively high level of generality.”²⁶⁸ In Pye itself, the “reason” attributed to the state‑court decision seems to have been the bottom‑line conclusion that counsel’s performance did not prejudice the defendant.²⁶⁹ And in a Batson case,²⁷⁰ an Eleventh Circuit panel defined the state court’s reason as its conclusion that “it was not an abuse of discretion for the trial court to accept [the prosecutor’s] explanation of the strike.”²⁷¹

The Pye court defended its approach primarily by reference to “AEDPA’s plain language and the logic of . . . Richter.”²⁷² In light of these arguments, it reasoned that “[t]he lone question” was whether “Wilson instituted an entirely new and different AEDPA regime.”²⁷³ It concluded that Wilson did no such thing, but instead “confronted only a very narrow question” about which state‑court opinions are relevant, chiding the dissent (which adopted the narrow approach) for “overread[ing] (and thus misread[ing]) Wilson.”²⁷⁴

On first blush, the hybrid approach seems largely consistent with the doctrines discussed above. Because Pye applies a modified version of the “could have supported” approach across the board, it is plainly consistent with Richter. And if different prongs of a multipart claim constitute distinct “reasons,” as Pye and its progeny suggest,²⁷⁵ then a court applying the hybrid approach would not supply hypothetical reasons for prongs the state court did not decide, resulting in the de novo review that Wiggins requires. It would, however, supply hypothetical reasons for both prongs if the state court decided both prongs—just as Wetzel requires.²⁷⁶ And, though it gives Wilson a somewhat miserly reading, it leaves some room for the look‑through presumption as the method for determining the state court’s “reasons”—a role consistent with (though not dictated by) the Court’s only post‑Wilson application of the look‑through presumption.²⁷⁷

Nevertheless, this approach falls short. First, the reason-justification distinction is highly artificial. Indeed, part of the reason the hybrid approach seems so consistent with Supreme Court case law is that the reason-justification distinction is seemingly reverse‑engineered to create that consistency. As a result, it is also difficult to draw the line between reasons and justifications.²⁷⁸ To be sure, coming up with any theory that accounts for the seemingly conflicting decisions in this area is quite the feat, and sometimes vertical stare decisis requires distinctions that don’t make much sense. But the need for such an inexplicable and unworkable distinction is a sign that something has gone awry.

Moreover, the hybrid approach falls just short of accounting for all of the Supreme Court decisions: Although it explains the application of the alternative ground doctrine in Wetzel and Kayer, it struggles to explain Matthews. In Matthews, the Court considered the state court’s rejection of the defendant’s claim that the trial court impermissibly shifted the burden of proof as to his extreme emotional disturbance defense.²⁷⁹ The state court gave two rationales for rejecting this claim. First, it argued that one of its recent decisions required rejecting the claim.²⁸⁰ Second, it explained that the jury instructions accurately represented the burden of proof.²⁸¹ The Sixth Circuit found the first rationale unreasonable and thus held that Section 2254(d) did not preclude relief.²⁸² The Supreme Court reversed, applying Wetzel to hold that, because the second argument was “sufficient to reject [the] claim,” the possible unreasonableness of the first argument was “irrelevant.”²⁸³ However, the Court explained that the first argument’s potential unreasonableness “would be relevant if [it] formed the sole basis for denial of [the] claim.”²⁸⁴

Treating these arguments as reasons would seem to violate Pye’s instruction to define reasons at a “high level of generality,”²⁸⁵ especially when contrasted with decisions (like Pye itself) defining reasons in terms of a particular prong of a multipart claim.²⁸⁶ They are much more naturally described as justifications. But if that is so, why would it matter whether a particular justification was or was not “the sole basis for” the state court’s decision?²⁸⁷ Under Pye, the federal court would be obliged to supply its own justifications, and the state court’s justifications would have been irrelevant.

* * *

In sum, lower courts have struggled to draw the line between Richter and Wilson. Their attempts to do so have been frustrated by three doctrines governing multipart claims that not only make understanding Richter and Wilson difficult but are also unclear in their own right.

III. Defining Unreasonableness

Having explained why each prevailing approach falls short, this Article now discusses an alternative theory of Section 2254(d) that borrows from each of the approaches above. It offers a principled reconciliation of the entire body of Supreme Court jurisprudence under Section 2254(d). Under this theory, Section 2254(d) does not ask about the merits of a claim. Instead, it asks whether a “qualifying error”—that is, an error that triggers one of Section 2254(d)’s enumerated exceptions—infected the state court’s adjudication.

A. The Nature of Section 2254(d)

Understanding the distinction between the Section 2254(d) inquiry and the merits requires first understanding Section 2254(d)’s place within the labyrinthine structure of federal habeas review for state prisoners. For nearly a century, federal courts could generally issue writs of habeas corpus only for prisoners held in federal custody.²⁸⁸ During Reconstruction, however, Congress extended this authority to those held in state custody²⁸⁹—an authority that lives on in one of Section 2254(d)’s neighboring paragraphs, Section 2254(a).²⁹⁰

Recognizing the breadth of this power, courts soon began developing doctrines to circumscribe its use.²⁹¹ Congress, too, acted to “offset the broad § 2254(a) power with a variety of rules restricting its use.”²⁹² These barriers can be sorted into two categories: (1) those directing how federal courts should decide the merits of a claim,²⁹³ and (2) those that prohibit relief regardless of the merits.²⁹⁴

Congress doubtless erected a barrier when it adopted Section 2254(d). It is not immediately clear, however, into which category that barrier falls. Courts often describe it as requiring deference to the state court’s judgment,²⁹⁵ and the House Conference Report suggests a deference‑based reading.²⁹⁶ As Judge Easterbrook observed, however, “the word ‘deference’ does not appear in the statute,” and Section 2254(d) “does not tell us to ‘defer’ to state decisions, as if the Constitution means one thing in Wisconsin and another in Indiana.”²⁹⁷ “Deferential” thus works better as an adjective than “defer” does as an imperative.

Rather than focusing on the claim and whether it is strong enough to overcome deference, Section 2254(d) “focuses on what a state court knew and did.”²⁹⁸ As one court put it, Section 2254(d) “exalt[s] the role that a state court’s decision plays in a habeas proceeding by specifically directing the habeas court to make the state court decision the cynosure of federal review.”²⁹⁹ This is clear from the statutory text, which focuses on the “adjudication of the claim,” not on the claim itself. It references the state‑court “decision,” “determination,” and “proceeding,” but refers to the “claim” only to ask whether it was the subject of said “adjudication.”³⁰⁰

In addition to squaring with the statutory text, this understanding makes sense in light of the debates and developments that presaged AEDPA. First, it recognizes that, though Congress did not enact Bator’s process model,³⁰¹ it heeded his fundamental insight that relitigation should “address itself . . . not so much to the substantive question whether truth prevailed but to the institutional or functional one.”³⁰² Although Congress did not limit the “institutional question,” as did Bator, to the fairness of the state court’s processes, it did limit relitigation to situations where certain red flags call into question “the presumption that state courts know and follow the law.”³⁰³ Second, it harmonizes Section 2254(d) with Teague, its spiritual forbear. Under Teague, retroactivity is a “threshold question,”³⁰⁴ meaning it must be decided before and separate from the merits, even though the two are “obviously interrelated.”³⁰⁵ Accordingly, the Court has described Teague as a limitation on relief independent of the merits.³⁰⁶ Although I have previously disagreed with that characterization,³⁰⁷ it reflects the Court’s understanding.

The Court has recognized this Section 2254(d)-merits distinction. In Richter, it chastised the Ninth Circuit for “treat[ing] the unreasonableness question as a test of its confidence in the result it would reach under de novo review.”³⁰⁸ Instead, the Court explained, “it is a necessary premise that the two questions are different.”³⁰⁹ Because of this, Section 2254(d) “sets forth a precondition to the grant of habeas relief[,] . . . not an entitlement to it.”³¹⁰ This means that in some cases Section 2254(d) may be satisfied even where the constitutional claim is not viable.³¹¹

There are two arguments for nevertheless treating Section 2254(d) as modifying the merits analysis rather than creating an additional requirement. One is textual; it emphasizes that the statutory language focuses on the state court’s “decision”—which can be read as referring only to its result.³¹² But if that argument were applied to the “contrary to” clause, it would directly contradict Williams, which held that a decision can be contrary to clearly established law either in its outcome or in the reasoning it employs.³¹³ And the argument is even weaker for the “unreasonable application” clause. That clause asks whether the decision “involved an unreasonable application of clearly established Federal law.”³¹⁴ Answering that question requires looking at what the decision “involved” and how it “appli[ed]” federal law³¹⁵—questions about the means rather than merely the result.

The other argument relies on dicta from Berghuis v. Thompkins,³¹⁶ where the Court suggested that a decision that is “correct under de novo review” is “therefore necessarily reasonable under” Section 2254(d).³¹⁷ That language is imprecise, however. A better formulation is Judge Arthur Tarnow’s:

Most times a finding in favor of the Petitioner under § 2254(d) means that a fortiori Petitioner is held in violation of his constitutional rights under § 2254(a). It is usually the case that where a state court unreasonably rejects a constitutional claim it can also be immediately determined that the constitutional right was violated. But this is not always true.³¹⁸Ballinger v. Prelesnik, 844 F. Supp. 2d 857, 868 n.1 (E.D. Mich. 2012) (emphasis added), rev’d and vacated, 709 F.3d 558 (6th Cir. 2013).

Indeed, the possibility that a petition may fail to state a ground for relief under Section 2254(a) even if Section 2254(d) is no bar to relief gives life to Cullen v. Pinholster’s³¹⁹ assurance that its reading of Section 2254(d) (which limits the analysis to the record before the state court) does not render Section 2254(e)(2)’s limitations on evidentiary hearings “superfluous.”³²⁰ In his Pinholster concurrence—published just months after Thompkins—Justice Breyer identified several scenarios where an evidentiary hearing would be needed to determine the merits even where Section 2254(d) does not bar relief.³²¹ In context, Thompkins is best read as establishing only that a correct result is necessarily a reasonable result, not that a correct result guarantees a reasonable decision. As the Court recently reiterated, oblique language suggesting that one inquiry subsumes another should not trump a careful analysis of Section 2254(d)’s text.³²²

B. Qualifying Errors

The question under Section 2254(d) is thus not whether the claim is meritorious, or even whether it is obviously meritorious. Instead, it is whether the state court committed an error that pierces the general bar on relief. To do so, an error must have three features: it must be the right type of error, it must be sufficiently severe, and it must have affected the state court’s decision.

1. 1. Type of Error

The first requirement—that the error be of the right type—simply reflects the errors enumerated by Section 2254(d). Three types of errors qualify.³²³ The first two are listed in paragraph (d)(1): “a decision” that is “contrary to . . . clearly established Federal law,” and “an unreasonable application of” that clearly established law.³²⁴ The third is found in paragraph (d)(2): “an unreasonable determination of the facts in light of” the state‑court record.³²⁵ The most important point is that the list of errors is exclusive.³²⁶ Other errors—such as unreasonable interpretations of state law³²⁷ or lower‑court precedent,³²⁸ unreasonable failure to extend Supreme Court precedent,³²⁹ or lack of citation to (or awareness of) of controlling cases³³⁰—do not qualify.

2. Severity of Error

The second requirement—the error’s severity—likewise simply reflects Section 2254(d)’s language and the Supreme Court’s interpretations of it. The general requirement is that Section 2254(d) bars relief “absent an error that lies ‘beyond any possibility for fairminded disagreement.’”³³¹ Under the “contrary to” clause, an error is only sufficiently severe if the decision is “‘diametrically different,’ ‘opposite in character or nature,’ or ‘mutually opposed’” to clearly established law.³³² Under the “unreasonable application” clause, the application must be “objectively unreasonable,” not merely wrong; even ‘clear error’ will not suffice”³³³—the error must be “well understood and comprehended in existing law.”³³⁴ And under paragraph (d)(2), the barrier to relief remains if “evidence in the state‑court record can fairly be read to support” the state court’s factual finding, even if the federal court “would have reached a different conclusion in the first instance.”³³⁵ Overall, the severity requirement “reflects the view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice systems,’” not ordinary errors.³³⁶

3. Effect of Error

The third requirement—that the error affect the decision to deny the claim—is more intricate. In the context of paragraph (d)(1)’s “unreasonable application” clause, it derives from the verb “involved.”³³⁷ In the context of paragraph (d)(2), it is derived from the phrase “based on.”³³⁸ The key language in either context must be distinguished from the passive verb “was” in paragraph (d)(1)’s “contrary to” clause, which does not incorporate an effect requirement.³³⁹

When used as a verb, “base” means “to find a foundation or basis for.”³⁴⁰ A foundation is, of course, meant to bear weight—an architect who designed one not suited for that purpose wouldn’t be an architect for long. For an unreasonable determination of facts to be the “foundation” or “basis” of a state‑court decision, therefore, the judicial equivalent of a non‑load‑bearing wall will not do. Instead, the state‑court decision must have relied on the unreasonable determination in some way.

Paragraph (d)(1)’s use of the verb “involve” is similar. Though “involve” can, in some contexts, mean simply “to have within or as part of itself,” it more often “suggests inclusion by virtue of the nature of the whole.”³⁴¹ In other words, “involve” usually suggests not mere inclusion, but inclusion that in some way changes or affects the whole. Consider a football analogy: It would be quite natural for an underutilized receiver to complain that he is not “involved” in the team’s passing offense, even though he is both “within” and “part of” it. Everyone would understand that he is complaining about not being sufficiently integral to the offense, not about not being a member of it. Such an interpretation also avoids making the word “involve” superfluous; reading “involve” to denote mere inclusion would give the statute the same meaning as if the word were excluded altogether.³⁴²

In contrast to both paragraph (d)(2) and the “unreasonable application” clause in paragraph (d)(1), the language of paragraph (d)(1)’s “contrary to” clause does not suggest an effect requirement.³⁴³ That is because the “contrary to” clause, unlike the other two clauses, asks about the state‑court decision itself, not about the applications of law or determinations of fact included therein.³⁴⁴ In addition to the textual indications, the distinction between the “contrary to” clause and the other two clauses makes good practical sense. When considering the effect of the other two types of error, the habeas court must place the error within the legal framework underlying the state court’s decision.³⁴⁵ But with one of the two species of “contrary to” error delineated by the Supreme Court—those where the state court “applies a rule that contradicts the governing law”³⁴⁶—the framework is absent from the state‑court decision. Thus, like structural errors in criminal trials, these “contrary to” errors “affect[] the framework within which the [decision] proceeds” and thus any evaluation of their effects would be nothing more than speculation.³⁴⁷ And with the second species of “contrary to” error—which occurs when a state court reaches the opposite result from a Supreme Court precedent on “materially indistinguishable” facts—there is no need to evaluate the effect because we already know there will have been one; the cases are “indistinguishable.”³⁴⁸

Besides textual grounding and practicality, applying an effect requirement to “unreasonable application” error and to paragraph (d)(2) error has other virtues. First, it preserves the presumption of correctness when a state court denies a claim despite being unreasonably generous to a defendant on certain points in the analysis.³⁴⁹ Second, it avoids asking federal courts to “flyspeck” a state‑court’s reasoning,³⁵⁰ instead requiring them to focus only on errors that might have been consequential.³⁵¹

Finally, it accounts for several features of Section 2254(d) jurisprudence that otherwise remain unexplained. As early as Williams, the Court seemed to ask whether the state‑court decision “turned on” the error.³⁵² The Court appeared to get at something similar—though the lack of citation or explanation makes it hard to tell³⁵³—when it asked whether the “unreasonable application” error in Wetzel was “beside the point.”³⁵⁴ An effect requirement nicely explains Wetzel and its progeny: If the state court independently (and reasonably) rejected the claim on an alternative ground, the error cannot have affected the decision. In such a case, the otherwise‑qualifying errors are essentially “quarantined” from the rest of the decision, preventing them from infecting the outcome. That is true whether or not the alternative argument is framed at a high enough level of generality to be a separate “reason” under the hybrid approach,³⁵⁵ so long as the alternative argument is (1) sufficient by itself to deny the claim and (2) analytically separate from the infected argument. Thus, it explains not only Wetzel and Kayer, but also Matthews. By contrast, when a state court chooses not to adjudicate other prongs of a claim, it leaves no uninfected argument to prove that the error had no effect. This explains the partial adjudication rule.³⁵⁶

Of course, the effect requirement is not a pure counterfactual analysis asking how the state court actually would have ruled if not for the error. Were that so, the partial adjudication rule would not require de novo review of unadjudicated prongs. Instead, it would require, at best, something akin to an “Erie guess,”³⁵⁷ and at worst something akin to psychoanalysis. Not only would that analysis be impossible,³⁵⁸ it would also violate Williams’s directive to view Section 2254(d) through an objective lens rather than a subjective one.³⁵⁹ Instead, a federal court must ask the (admittedly nebulous) question of whether the error was “beside the point.”³⁶⁰

IV. Proving Unreasonableness

The previous Part discussed what a federal court must conclude to overcome Section 2254(d)’s barrier: that the state court committed a “qualifying error” that is of the right type, is sufficiently severe, and may have affected the outcome. The remaining question, then, is how a federal court can reach that conclusion.

Scrutinizing a state court’s opinion in some cases but only its result in others seems at first like applying divergent standards. But, as is often the case, things are not as they appear. Having established that Section 2254(d) adds an independent requirement of its own, rather than merely dictating the lens through which the constitutional claim must be evaluated, things come sharply into focus. As this Part demonstrates, the seemingly divergent standards are just two evidentiary paths to proving the same ultimate fact: that the state court committed a qualifying error.

A. Allocating the Burden of Proof

Formally speaking, a federal petition for a writ of habeas corpus is an original, civil action.³⁶¹ As the plaintiff in that action, a prisoner seeking relief bears the burden of proof on most issues.³⁶² Section 2254(d)’s bar on relief is no exception.³⁶³ As a result, habeas petitioners must “affirmatively demonstrate that the state court was unreasonable.”³⁶⁴ This point seems simple enough, but failure to recognize and account for it has undermined previous scholarship in this area.

Take Professor Adam Steinman’s (pre‑Richter) approach, for instance. His view is largely similar to this Article’s. Both reject the expansive approach discussed in Section II.B.1, supra, instead opting to evaluate state‑court opinions largely on their own terms.³⁶⁵ However, he subtly shifts the burden of proof from the petitioner to the state.³⁶⁶ In his view, Section 2254(d)’s applicability is “contingent on whether the state court’s actual reasoning passes analytical muster.”³⁶⁷ Thus, he considers Section 2254(d) a “standard” that a state court’s reasoning must “satisfy” rather than a barrier that a petitioner must overcome.³⁶⁸ This is clearest in his discussion of unexplained decisions. In two separate sections, he follows out the natural conclusion of his combination of a focus on the state‑court opinion and allocation of the burden of proof to the state: “[A] state court that fails to write an opinion articulating how it interpreted and applied federal law should not receive deference under § 2254(d)(1).”³⁶⁹ Although this view had many other proponents (including the NACDL briefs discussed supra Section I.B.3.a), it was squarely rejected in Richter.³⁷⁰

Professor Steven Semeraro’s approach (likewise articulated before Richter) meets a similar fate. His approach, like this Article’s, incorporates the state court’s rationale into the Section 2254(d) inquiry.³⁷¹ However, he establishes a series of hurdles that the state court must overcome before the state can invoke Section 2254(d)’s limitations on relief. First, it must “cite[] all applicable federal law—including statutes, Supreme Court cases, and federal appellate court cases from the circuit in which the state is located—that the federal habeas court would have cited had it been charged with the responsibility to decide the claim on the merits.”³⁷² Thus, “opinions wholly failing to cite significant federal authority” would not do.³⁷³ Indeed, neither would “[r]ote citation of federal precedents.”³⁷⁴ Rather, the state court would have to “demonstrate[] a thorough understanding of federal law” (a standard to be evaluated by the federal habeas court).³⁷⁵ Semeraro even seems to view a state court’s failure to meet his requirements as adequate grounds for a federal court to grant a measure of relief—sending the case back to the state court for reconsideration—without finding that a federal right was violated.³⁷⁶ Underscoring his misplacement of the burden of proof, he advocates that sort of treatment in one case where the Supreme Court plurality agreed with the state court on the merits,³⁷⁷ and one that this Article uses below as an example of the correct approach.³⁷⁸

This approach obviously runs afoul of Richter.³⁷⁹ It just as obviously runs afoul of Packer, which rejected a requirement that state courts cite (or even exhibit awareness of) the controlling Supreme Court precedents.³⁸⁰ But its flaws are more fundamental than being at odds with Supreme Court precedent—an accusation to which Semeraro would likely plead guilty as charged.³⁸¹ Rather, it is the epitome of a “grading papers” approach, requiring state courts not only to show their work, but to use the same citations the federal court would use and to demonstrate (to the federal court’s satisfaction) a “thorough understanding of federal law.”³⁸² Semeraro anticipates this objection, asserting in response that “state judges, who are obligated to follow federal law, can fairly be required to understand and apply that law in a sophisticated way.”³⁸³ That may be so, but it is surely not what Section 2254(d) actually requires. While not all approaches that focus on the state court’s reasoning fall victim to Judge Posner’s charge against restoring the pre‑AEDPA “tutelary relation” between the state and federal courts,³⁸⁴ Semeraro’s certainly does.³⁸⁵

The same misapprehension of the burden of proof (or perhaps of the fact that there is something to be proved) implicitly underlies arguments based on purported “asymmetry” between the “could have supported” framework and the scrutiny that courts employing the narrow approach give to reasoned decisions.³⁸⁶ In these views, it is problematic that a petitioner’s entitlement to relief can turn on whether the state court explained its decision or kept silent.³⁸⁷ But allocating the risk of evidence insufficient to establish truth is among the specific functions of a burden of proof.³⁸⁸ As the Supreme Court has said, Section 2254(d) requires giving state courts “the benefit of the doubt.”³⁸⁹ This must mean that when there is “doubt” about whether a qualifying error has occurred—whether because of an unexplained order or otherwise—the state court must receive the “benefit” of that doubt. Given the presumption of state‑court competence, it’s no surprise that a state court—even an unreasonable one—that “keeps silent is considered wise.”³⁹⁰

How, then, can an opinion‑focused approach avoid the burden‑shifting problem? Packer suggests the solution: Its language indicates that a state‑court opinion becomes unreasonable by what it does, not by what it doesn’t do.³⁹¹ So long as the court does not slip into the “pitfalls” described by Section 2254(d)—that is, so long as it does not commit a qualifying error—its decision was reasonable and a federal court may not grant relief.³⁹² Unlike Steinman’s and Semararo’s approaches, which permit relief unless the state court demonstrates its reasonableness, the correct approach bars relief unless the petitioner demonstrates the state court’s unreasonableness.

B. Meeting the Burden: Two Paths

The Section 2254(d) inquiry is one of objective reasonableness (or, more precisely, objective unreasonableness).³⁹³ As one scholar put it, such standards “pervade the law.”³⁹⁴ In Williams, Justice O’Connor explicitly invoked this legal backdrop, relying on the “familiar” meaning of the term “unreasonable.”³⁹⁵ As this invocation suggests, objective reasonableness tests in other areas may shed light on Section 2254(d).³⁹⁶

Perhaps the most prominent and well‑theorized of these objective reasonableness tests comes from the law of negligence, where reasonableness “has long been the touchstone.”³⁹⁷ To be sure, the analysis under Section 2254(d) does not mimic Judge Learned Hand’s famous cost‑benefit balance.³⁹⁸ Instead, prisoners typically must demonstrate “an extraordinary measure of fault akin to gross negligence or recklessness.”³⁹⁹ But one feature of negligence law (besides the presence of an objective reasonableness test) nevertheless makes it a promising analogue: its clear placement of the burden of proof on the plaintiff.⁴⁰⁰

One way a negligence plaintiff can meet that burden is through the doctrine of res ipsa loquitur, under which negligence can be inferred if “the injury occur[s] under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed.”⁴⁰¹ In other words, a negligence plaintiff can prevail without identifying what specific unreasonable thing the defendant did, so long as she can show that the accident would not have occurred unless the defendant made some unspecified unreasonable act or omission. That is not the only way a negligence plaintiff can meet her burden of proof, however—nor is it even the most common. Instead, plaintiffs typically meet their burden by pointing out “precisely what the defendant did or didn’t do.”⁴⁰²

Negligence law thus demonstrates a sort of two‑path approach to proving unreasonableness. A plaintiff can either point to a specific unreasonable act or omission or to a result so unlikely that an unreasonable act or omission must have occurred. Habeas follows suit: A prisoner can likewise prove unreasonableness either by pointing to a specific qualifying error or by pointing to a result so unreasonable that the state court must have committed a qualifying error. Simply comparing Williams and Richter supports this proposition. In Williams, as Judge Katzmann observed, at least six Justices endorsed examining the state court’s actual reasoning to determine whether Section 2254(d) barred relief.⁴⁰³ In Richter, by contrast, the Court clearly indicated that a petitioner could overcome Section 2254(d) using only the state court’s result.⁴⁰⁴ Therefore, unless Richter overruled Williams sub silentio, despite citing it favorably—and the “prevailing consensus” is that it did not⁴⁰⁵—both paths are open.

But the two‑path approach has roots much deeper than just Richter and Williams. As this Article demonstrates in the following sections, the two‑path approach has left its fingerprints in every corner of Section 2254(d) jurisprudence. And, as Wetzel and Wilson indicate, it has not yet worn out its welcome at One First Street—some federal circuit court suggestions to the contrary notwithstanding.

1. 1. The Two‑Path Approach and the “Contrary To” Clause

Proving the existence of a two‑path approach is easiest in the context of the “contrary to” clause, because the Williams Court explicitly required it. Under Williams, a state‑court determination can be contrary to clearly established federal law in two ways. First, it can “appl[y] a rule that contradicts the governing law set forth in” the controlling cases.⁴⁰⁶ This is an example of the first path—pointing to a specific error—because it requires ascertaining precisely what rule the state court applied, which cannot be done without reference to its opinion. Williams itself illustrates this, which found the state court’s decision “contrary to” Strickland because it applied the wrong prejudice standard—something the Court demonstrated the only way it could: by quoting the state court’s opinion.⁴⁰⁷ Seven years later, in Abdul‑Kabir v. Quarterman,⁴⁰⁸ the Court similarly examined the state court’s precise reasoning, down to its choice of citations, before concluding that its “formulation of the issue”—not its outcome—was contrary to clearly established law.⁴⁰⁹ And five years after that—this time post‑Richter—Lafler v. Cooper⁴¹⁰566 U.S. 156 (2012). found the state court’s decision “contrary to” clearly established law because, though presented with an ineffective assistance claim, it “failed to apply Strickland.”⁴¹¹ Again, the Court backed this accusation with citations to the state court’s opinion.⁴¹² Clearly, then, the “governing law” prong of the “contrary to” test requires—or at minimum permits—a federal court to examine a state court’s actual reasoning.

But that is not the exclusive path to establishing that a state court decision is “contrary to” clearly established law. That task can also be accomplished by showing the state court “confront[ed] a set of facts that are materially indistinguishable from” a controlling case, yet arrived at a different result.⁴¹³ This is an example of the second path; determining that the “facts” a state court “confronts” in a particular case are “materially indistinguishable” from Supreme Court precedent requires only a knowledge of the facts and the precedent, not a knowledge of the state court’s reasoning. From those facts and precedents, it can be inferred that the state court either applied a rule that was contrary to clearly established law or unreasonably applied that law (such as by manufacturing an unreasonable distinction), since no other explanation can account for the different outcomes.⁴¹⁴ This inference can be drawn even in some cases where the facts are “significantly different,” so long as the legal consequences of those facts “clearly are the same.”⁴¹⁵

1. 1. The Two‑Path Approach and the “Unreasonable Application” Clause

Proving that the “unreasonable application” clause incorporates a two‑path approach is slightly trickier—if the Court had said so outright, there would be no circuit split and no need for this Article. However, that the “contrary to” clause requires a two‑path approach lends credence to the idea that the “unreasonable application” clause requires the same. Moreover, that is precisely what the Court does in its “unreasonable application” cases.

Perhaps the most illustrative example is Yarborough v. Alvarado,⁴¹⁶ a case evaluating the reasonableness of the state court’s conclusion that a juvenile was not in custody when he gave an un‑Mirandized confession.⁴¹⁷ In granting relief, the Ninth Circuit found the state court’s decision unreasonable primarily because it failed to consider the defendant’s youth and inexperience with police.⁴¹⁸ In the Ninth Circuit’s view, this represented an unreasonable failure to extend the principle “that juvenile defendants are accorded heightened procedural safeguards commensurate with their age and experience”—clearly established in the context of evaluating the voluntariness of a confession or of a waiver of Miranda rights—to the determination of whether the defendant was “in custody.”⁴¹⁹

The Supreme Court reversed.⁴²⁰ In doing so, it proceeded in two steps. First, it analyzed the state court’s outcome.⁴²¹ Relying on the “general” nature of the custody analysis and the “differing indications” presented by the facts of the interrogation, the Court concluded that “fairminded jurists could disagree over whether [the prisoner] was in custody.”⁴²² This analysis mirrors the second path in the two‑path approach: It considered only the facts presented to the state court and the outcome it reached on those facts. These, the Court concluded, were not enough to show unreasonableness. In this Article’s terminology, the state court’s outcome was not enough, by itself, to prove it had committed a qualifying error.

But the Court did not end its analysis there. It next considered the possibility that the state court erred (as the Ninth Circuit held) by failing to consider the prisoner’s age and inexperience with law enforcement.⁴²³ The Court concluded, however, that this was not unreasonable, largely relying on “an important conceptual difference between the Miranda custody test and the line of cases from other contexts considering age and experience”—namely, the purely objective nature of the former—which made it reasonable for the state court not to consider the defendant’s age and inexperience.⁴²⁴ “For these reasons”—but only, apparently, for these reasons—the Court concluded that “the state court’s failure to consider [the defendant’s] age [did] not provide a proper basis for finding that the state court’s decision was an unreasonable application of clearly established law.”⁴²⁵ Though the Court rejected the asserted qualifying error (apparently for lack of severity⁴²⁶), its analysis reflects the first path of the two‑path approach: carefully considering whether a specific misstep by the state court vitiated Section 2254(d)’s limitations.

The penultimate sentence in Alvarado provides the strongest support for applying the two‑path approach under the “unreasonable application” clause. The prisoner failed to surmount Section 2254(d)’s barrier only because “[t]he state court considered the proper factors and reached a reasonable conclusion.”⁴²⁷ If the “could have supported” framework was the exclusive path to proving an unreasonable application, there would have been no need to consider whether the state court considered the proper factors.

Although Alvarado found no qualifying error under either path, other cases demonstrate the first path’s vitality. Take Wiggins for instance.⁴²⁸ There, the Court examined the state court’s “application of Strickland’s governing legal principle” by closely examining (and quoting) its opinion.⁴²⁹ It concluded that this application “was objectively unreasonable” because it “merely assumed that [counsel’s] investigation was adequate.”⁴³⁰ Thus, it was the state court’s “assumptions,” not its outcome, that removed Section 2254(d)’s protections. Similarly, in Rompilla, the Court examined “the position taken by the state postconviction courts”—namely, that defense counsel’s other efforts to find mitigating evidence excused their otherwise unreasonable failure to look at the case file from the defendant’s prior prosecution.⁴³¹ It held that this rationale “fail[ed] to answer the considerations” set out in Strickland and its progeny “to the point of being an objectively unreasonable conclusion.”⁴³² Again, it was the reasoning, not just the outcome, that doomed the state court’s decision.

Though these examples suffice to prove the point, such instances are numerous⁴³³—as are examples of the Court examining the state court’s reasoning before finding it reasonable.⁴³⁴

1. 1. The Two‑Path Approach and Paragraph (d)(2)

Although the Court’s decisions applying paragraph (d)(2) are cryptic, they nevertheless provide examples of both paths to overcoming Section 2254(d)’s barrier to relief. Following the first path, Brumfield “train[ed] [the Court’s] attention on the two underlying factual determinations on which the [state] court’s decision was premised”—namely, that the defendant’s IQ score was “inconsistent with” a finding of significantly subaverage intellectual function and that “he had presented no evidence of adaptive impairment.”⁴³⁵ In rejecting the first determination as unreasonable, the Court zeroed in on the state court’s “apparent[] belie[f]” that an IQ score of 75 “precluded any possibility” of subaverage intellectual functioning.⁴³⁶ In other words, the Court honed in on a specific qualifying error the state court committed in its factfinding.⁴³⁷ In likewise rejecting the second determination, the Court zeroed in on the state court’s failure to “take[] into account that the evidence before it was sought and introduced at a time when [the defendant’s] intellectual disability was not at issue”—another specific qualifying error.⁴³⁸ Brumfield thus demonstrates that the first path of the two‑path approach is viable under paragraph (d)(2) just as it is under paragraph (d)(1).

Miller‑El v. Dretke,⁴³⁹ by contrast, demonstrates the second path at work. Miller‑El involved a claim of racial discrimination in the prosecutor’s exercise of peremptory strikes.⁴⁴⁰ The Court limited its exposition of the state court’s decision to the opinion’s background section, which notes only conclusions, not rationales.⁴⁴¹ In its analysis, the Court began by noting that the state court had made a factual finding that the prosecutor’s race‑neutral explanations were true and that this finding triggered Section 2254(d)’s barrier to relief.⁴⁴² In the following twenty‑five page analysis, the Court does not mention the state court’s decision or analysis even once.⁴⁴³ The state court makes its next appearance in the last paragraph of the opinion, which concludes simply that “the state court’s conclusion was unreasonable as well as erroneous.”⁴⁴⁴ This prolonged absence is especially striking given the Court’s repeated engagement with the lower federal court’s reasoning.⁴⁴⁵

Instead of taking issue with the state court’s reasoning, the Court emphasized the “remarkable” evidence⁴⁴⁶ of the prosecutors’ “consistent pattern of opposition” to Black jurors,⁴⁴⁷ which could not “be explained away.”⁴⁴⁸ It also took aim at the prosecutor’s “incredible” explanations,⁴⁴⁹ which were “far at odds with the evidence”⁴⁵⁰ and “reek[ed] of afterthought.”⁴⁵¹ The Court concluded that “when this evidence . . . is viewed cumulatively its direction is too powerful to conclude anything but discrimination,” which was the “undeniable explanation.”⁴⁵² Accordingly, no court could “reasonably”⁴⁵³ reach any other conclusion; to do so would simply “blink[] reality.”⁴⁵⁴

Though Miller‑El was decided six years before Richter and thus did not invoke its language, there could hardly be a clearer example of the “could have supported” framework in operation. The Court concluded that a qualifying error had occurred solely based on the overwhelming facts and the outcome reached by the state court, implicitly rejecting as unreasonable any hypothetical argument that “could have supported” denying the claim.⁴⁵⁵ In the res ipsa loquitur terminology introduced earlier,⁴⁵⁶ the Court thought that the rejection of the claim “in the ordinary course of events . . . would not have occurred”⁴⁵⁷ absent the state court’s unreasonableness.

The combination of Brumfield and Miller‑El thus demonstrates that the two‑path approach is as viable for paragraph (d)(2) as it is for the “contrary to” and “unreasonable application” clauses.

C. The Two‑Path Approach in Richter and Beyond

What, if anything, did Richter change about the analysis described above? Did its enunciation of the “could have supported” framework render that path—the second in my taxonomy—exclusive? The answers, as it happens, are “very little” and “not at all.” Instead, Richter represents the application of the two‑path approach to a novel evidentiary setting: unexplained orders. As subsequent developments confirm, the first evidentiary path—close examination of the state‑court opinion—remains alive and well. Rumors of its death were, as they say, greatly exaggerated.

1. 1. The Two‑Path Approach and Unexplained Decisions

As noted above, every Section 2254(d) case to reach the Court until Mirzayance had a written state‑court opinion to analyze.⁴⁵⁸ Richter was thus primarily concerned with the question Mirzayance left open: whether Section 2254(d) applies at all when the state court did not explain its decision.⁴⁵⁹ Only after answering this question did the Court turn to the logical follow‑on question—which neither party briefed⁴⁶⁰—of how to determine whether Section 2254(d)’s requirements were satisfied. Some commentators, focused on the first path to proving a qualifying error, saw this problem as intractable. Professor Judith Ritter, for example, remarked shortly after Richter that “without any information about what precedent the state court applied or the reasoning used when applying precedent to the facts of a specific case, there is no way to decide whether the state court used the correct Supreme Court precedent and/or whether its application of precedent was unreasonable.”⁴⁶¹

The Court, by contrast, seemed unbothered. Instead, it reminded readers that habeas petitioners bear the burden of proof and calmly pointed to the second path: the “could have supported” analysis.⁴⁶² In doing so, the Court created nothing new. This Article has already examined one pre‑Richter case applying that framework: Miller‑El.⁴⁶³ And the Court had granted relief after applying that framework in other cases, including at least one decided under the “unreasonable application” clause.⁴⁶⁴ Thus, Richter did not create the “could have supported” framework, but rather offered a canonical formulation of it and acknowledged that it would be, as a practical matter, the exclusive path in cases where a qualifying error is not clear from the face of the opinion.

Wilson confirmed that Richter’s enunciation of the “could have supported” framework was—even in the summary denial context—a recognition of practical (rather than legal) limitations. The first path to proving a qualifying error requires not just identifying a specific error, but also proving it has occurred.⁴⁶⁵ In Richter, that could not be done because there was no relevant evidence. In Wilson, by contrast, there was relevant evidence: the lower state court’s decision.⁴⁶⁶ If Richter’s framework was based not on practical realities but legal requirements, those same requirements would have applied in Wilson, because in both cases the state‑court decision at issue was unexplained. By rejecting the “could have supported” framework under the facts presented there, Wilson thus demonstrated that the framework is an evidentiary reality, not a legal requirement. Richter did not abolish the first path, but merely recognized a practical limitation it always carried.

1. 1. The Future of the Two‑Path Approach

Since Richter, the Court has on several occasions signaled that the first path to proving a qualifying error is alive and well. The first such indication came in Wetzel, the case that established the alternative ground doctrine.⁴⁶⁷ As noted above, Wetzel cited to only one Section 2254(d) case: Richter.⁴⁶⁸ Although the state court in Wetzel explained its decision, the Court nevertheless quoted Richter’s language describing the “could have supported” framework. But when it did so, it elided the “could have supported” language: “Under § 2254(d), a habeas court must determine what arguments or theories supported . . . the state court’s decision . . . .”⁴⁶⁹ This pointed ellipsis suggests that a pure “could have supported” analysis is inappropriate when there is sufficient evidence to reach a conclusion about the state court’s actual reasoning.⁴⁷⁰

Wilson points in the same direction. The Court explained that “when the last state court to decide a prisoner’s federal claim explains its decision on the merits in a reasoned opinion . . . a federal habeas court simply reviews the specific reasons given by the state court and defers to those reasons if they are reasonable.”⁴⁷¹ As the Court explained:

Deciding whether a state court’s decision “involved” an unreasonable application of federal law or “was based on” an unreasonable determination of fact requires the federal habeas court to “train its attention on the particular reasons—both legal and factual—why state courts rejected a state prisoner’s federal claims,” and to give appropriate deference to that decision.⁴⁷²

This language is such strong support for continued scrutiny of state courts’ actual reasoning that one treatise writer thought it “settled the matter.”⁴⁷³

Although not explicit, the strongest indication that the first path remains viable is that the Court has continued to employ it even after Richter. Two of the cases discussed above as examples of the first path—Lafler and Brumfield—postdate Richter. In addition, the two‑path approach unifies and explains the Court’s Section 2254(d) jurisprudence, including lines of that jurisprudence that the Court itself has never explained. First, it explains why Williams examined (and, with regard to the “contrary to” clause, explicitly required lower courts to examine) both the reasoning and the result of the state court: because either can be used to prove that the state court committed a qualifying error. The Court’s repeated statement in the years between Williams and Richter that “either ‘the reasoning [or] the result of the state‑court decision’” can render the decision unreasonable⁴⁷⁴ can be explained on the same ground. Second, it explains why Richter applied a “could have supported” framework: because the second path had always been a feature of Section 2254(d) jurisprudence, and the circumstances in Richter made it, as a practical matter, the exclusive path in that case. Third (and perhaps most importantly), it reconciles Richter and Wiggins. If the state court said that it rejected a multipart claim on one element, a federal court can rule out any explanations for its decision that rely on another element. As a result, the court can make the res ipsa loquitur inference if every remaining explanation involves a qualifying error. If the state court does not say so, the federal court cannot rule out any explanations and thus can make the res ipsa loquitur inference only if all explanations involve qualifying errors. Fourth, the two‑path approach explains Wetzel: Where a reasonable alternative ground exists, the error certainly did not affect the state court’s decision. Finally, it explains Wilson: Unlike the situation in Richter, the situation in Wilson gave some evidence of the state court’s reasoning. Thus, it was not necessary to examine only the state court’s result; courts can (and therefore must) also examine the state court’s reasoning.

Conclusion

For more than a century, federal habeas has featured relitigation of claims already rejected by state courts.⁴⁷⁵ For most of that time, federal courts turned a blind eye to the state court’s decision—much to critics’ consternation. Congress responded by enacting AEDPA, which forced the state courts into the spotlight. Yet federal courts have construed AEDPA to require just what it was designed to prohibit: “disregard” for “a state court’s expressed rationale.”⁴⁷⁶ Such constructions are misguided. In Justice Frankfurter’s words, “there is no need for the federal judge, if he could, to shut his eyes to the State consideration.”⁴⁷⁷

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Richter’s Scale: Proving Unreasonableness Under AEDPA

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