Wilson v. Sellers

WILSON v. SELLERS, WARDEN certiorari to the united states court of appeals for the eleventh circuit No. 16–6855. Argued October 30, 2017—Decided April 17, 2018 Petitioner Marion Wilson was convicted of murder and sentenced to death. He sought habeas relief in Georgia Superior Court, claiming that his counsel's ineffectiveness during sentencing violated the Sixth Amend- ment. The court denied the petition, in relevant part, because it concluded that counsel's performance was not defcient and had not prej- udiced Wilson. The Georgia Supreme Court summarily denied his application for a certifcate of probable cause to appeal. Wilson subse- quently fled a federal habeas petition, raising the same ineffective- assistance claim. The District Court assumed that his counsel was defcient but deferred to the state habeas court's conclusion that any defciencies did not prejudice Wilson. The Eleventh Circuit affrmed. First, however, the panel concluded that the District Court was wrong to “look though” the State Supreme Court's unexplained decision and assume that it rested on the grounds given in the state habeas court's opinion, rather than ask what arguments “could have supported” the State Supreme Court's summary decision. The en banc court agreed with the panel's methodology. Held: A federal habeas court reviewing an unexplained state-court deci- sion on the merits should “look through” that decision to the last related state-court decision that provides a relevant rationale and presume that the unexplained decision adopted the same reasoning. The State may rebut the presumption by showing that the unexplained decision most likely relied on different grounds than the reasoned decision below. Pp. 128–134. (a) In Ylst v. Nunnemaker, 501 U. S. 797, the Court held that where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim are presumed to rest upon the same ground. In Ylst, where the last reasoned opinion on the claim explicitly imposed a procedural de- fault, the Court presumed that a later decision rejecting the claim did not silently disregard that bar and consider the merits. Since Ylst, every Circuit to have considered the matter, but for the Eleventh Circuit, has applied a “look through” presumption even where the state courts did not apply a procedural bar to review, and most Circuits applied the presumption prior to Ylst. The presumption is

Page Proof Pending Publication Cite as: 584 U. S. 122 (2018) 123 Syllabus often realistic, for state higher courts often issue summary decisions when they have examined the lower court's reasoning and found nothing signifcant with which they disagree. The presumption also is often more effciently applied than a contrary approach that would require a federal court to imagine what might have been the state court's support- ive reasoning. The State argues that Harrington v. Richter, 562 U. S. 86, controls here and that Ylst should apply, at most, where the federal habeas court is trying to determine whether a state-court decision without opinion rested on a state procedural ground or whether the state court reached the merits of a federal issue. Richter, however, did not directly concern the issue in this case—whether to “look through” the silent state higher court opinion to the lower court's reasoned opinion in order to determine the reasons for the higher court's decision. In Richter, there was no lower court opinion to look to. And Richter does not say that Ylst's reasoning does not apply in the context of an unexplained decision on the merits. Indeed, this Court has “looked though” to lower court deci- sions in cases involving the merits. See, e. g., Premo v. Moore, 562 U. S. 115, 123–133. Pp. 128–132. (b) The State's further arguments are unconvincing. It points out that the “look though” presumption may not accurately identify the grounds for a higher court's decision. But the “look through” presump- tion is not an absolute rule. Additional evidence that might not be suf- fcient to rebut the presumption in a case like Ylst, where the lower court rested on a state-law procedural ground, would allow a federal court to conclude that counsel has rebutted the presumption in a case decided on the merits. For instance, a federal court may conclude that the presumption is rebutted where counsel identifes convincing alterna- tive arguments for affrmance that were made to the State's highest court, or equivalent evidence such as an alternative ground that is obvi- ous in the state-court record. The State also argues that this Court does not necessarily presume that a federal court of appeals' silent opin- ion adopts the reasoning of the court below, but that is a different con- text. Were there to be a “look through” approach as a general matter in that context, judges and lawyers might read those decisions as creat- ing, through silence, binding circuit precedent. Here, a federal court “looks through” the silent decision for a specifc and narrow purpose, to identify the grounds for the higher court's decision as the Antiterrorism and Effective Death Penalty Act requires. Nor does the “look through” approach show disrespect for the States; rather, it seeks to replicate the grounds for the higher state court's decision. Finally, the “look through” approach is unlikely to lead state courts to write full opinions

Page Proof Pending Publication 124 WILSON v. SELLERS Opinion of the Court where they would have preferred to decide summarily, at least not to any signifcant degree. Pp. 132–134. 834 F. 3d 1227, reversed and remanded. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Sotomayor, and Kagan, JJ., joined. Gorsuch, J., fled a dissenting opinion, in which Thomas and Alito, JJ., joined, post, p. 134. Mark E. Olive argued the cause for petitioner. With him on the briefs were Brian S. Kammer, Marcia A. Widder, John H. Blume, Autumn N. Nero, and David J. Harth. Sarah Hawkins Warren argued the cause for respondent. With her on the brief were Christopher M. Carr, Attorney General of Georgia, Andrew A. Pinson, Deputy Solicitor General, Beth A. Burton, Deputy Attorney General, and Sa- brina D. Graham, Senior Assistant Attorney General.* Justice Breyer delivered the opinion of the Court. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires a prisoner who challenges (in a fed- eral habeas court) a matter “adjudicated on the merits in *Timothy P. O'Toole fled a brief for Retired State Supreme Court Jus- tices as amici curiae urging reversal. A brief of amici curiae urging affrmance was fled for the State of Arkansas et al. by Leslie Rutledge, Attorney General of Arkansas, Lee Rudofsky, Solicitor General, Brooke Gasaway , Assistant Attorney Gen- eral, and Nicholas J. Bronni, Deputy Solicitor General, and by the Attor- neys General for their respective States as follows: Steve Marshall of Ala- bama, Mark Brnovich of Arizona, Pamela Jo Bondi of Florida, Lawrence G. Wasden of Idaho, Curtis T. Hill, Jr., of Indiana, Thomas J. Miller of Iowa, Derek Schmidt of Kansas, Jeff Landry of Louisiana, Bill Schuette of Michigan, Joshua D. Hawley of Missouri, Timothy C. Fox of Montana, Douglas J. Peterson of Nebraska, Adam Paul Laxalt of Nevada, Hector H. Balderas of New Mexico, Michael DeWine of Ohio, Mike Hunter of Oklahoma, Alan Wilson of South Carolina, Marty J. Jackley of South Da- kota, Herbert H. Slatery III of Tennessee, Ken Paxton of Texas, Sean D. Reyas of Utah, Patrick Morrisey of West Virginia, Brad D. Schimel of Wisconsin, and Peter K. Michael of Wyoming.

Page Proof Pending Publication Cite as: 584 U. S. 122 (2018) 125 Opinion of the Court State court” to show that the relevant state-court “decision” (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law,” or (2) “was based on an unreasonable determination of the facts in light of the evi- dence presented in the State court proceeding.” 28 U. S. C. § 2254(d). Deciding whether a state court's decision “in- volved” 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,” Hittson v. Chatman, 576 U. S. 1028 (2015) (Ginsburg , J., concurring in denial of cer- tiorari), and to give appropriate deference to that decision, Harrington v. Richter, 562 U. S. 86, 101–102 (2011). This is a straightforward inquiry when the last state court to decide a prisoner's federal claim explains its decision on the merits in a reasoned opinion. In that case, a federal habeas court simply reviews the specifc reasons given by the state court and defers to those reasons if they are reason- able. We have affrmed this approach time and again. See, e. g., Porter v. McCollum, 558 U. S. 30, 39–44 (2009) (per cu- riam); Rompilla v. Beard, 545 U. S. 374, 388–392 (2005); Wig- gins v. Smith, 539 U. S. 510, 523–538 (2003). The issue before us, however, is more diffcult. It con- cerns how a federal habeas court is to fnd the state court's reasons when the relevant state-court decision on the merits, say, a state supreme court decision, does not come accompa- nied with those reasons. For instance, the decision may con- sist of a one-word order, such as “affrmed” or “denied.” What then is the federal habeas court to do? We hold that the federal court should “look through” the unexplained deci- sion to the last related state-court decision that does provide a relevant rationale. It should then presume that the unex- plained decision adopted the same reasoning. But the State may rebut the presumption by showing that the unexplained affrmance relied or most likely did rely on different grounds

Page Proof Pending Publication 126 WILSON v. SELLERS Opinion of the Court than the lower state court's decision, such as alternative grounds for affrmance that were briefed or argued to the state supreme court or obvious in the record it reviewed. I In 1997 a Georgia jury convicted petitioner, Marion Wil- son, of murder and related crimes. After a sentencing hearing, the jury sentenced Wilson to death. In 1999 the Georgia Supreme Court affrmed Wilson's conviction and sentence, Wilson v. State, 271 Ga. 811, 525 S. E. 2d 339 (1999), and this Court denied his petition for certiorari, Wilson v. Georgia, 531 U. S. 838 (2000). Wilson then fled a petition for habeas corpus in a state court, the Superior Court for Butts County. Among other things, he claimed that his counsel was “ineffective” during his sentencing, in violation of the Sixth Amendment. See Strickland v. Washington, 466 U. S. 668, 687 (1984) (setting forth “two components” of an ineffective-assistance-of- counsel claim: “that counsel's performance was defcient” and “that the defcient performance prejudiced the defense”). Wilson identifed new evidence that he argued trial counsel should have introduced at sentencing, namely, testimony from various witnesses about Wilson's childhood and the im- pairment of the frontal lobe of Wilson's brain. After a hearing, the state habeas court denied the petition in relevant part because it thought Wilson's evidence did not show that counsel was “defcient,” and, in any event, coun- sel's failure to fnd and present the new evidence that Wilson offered had not pre judiced Wilson. Wilson v. Terry , No. 2001–v–38 (Super. Ct. Butts Cty., Ga., Dec. 1, 2008), App. 60–61. In the court's view, that was because the new evi- dence was “inadmissible on evidentiary grounds,” was “cu- mulative of other testimony,” or “otherwise would not have, in reasonable probability, changed the outcome of the trial.” Id., at 61. Wilson applied to the Georgia Supreme Court for a certifcate of probable cause to appeal the state habeas

Page Proof Pending Publication Cite as: 584 U. S. 122 (2018) 127 Opinion of the Court court's decision. But the Georgia Supreme Court denied the application without any explanatory opinion. Wilson v. Terry, No. 2001–v–38 (May 3, 2010), App. 87, cert. denied, 562 U. S. 1093 (2010). Wilson subsequently fled a petition for habeas corpus in the United States District Court for the Middle District of Georgia. He made what was essentially the same “ineffec- tive assistance” claim. After a hearing, the District Court denied Wilson's petition. Wilson v. Humphrey, No. 5:10–cv– 489 (Dec. 19, 2013), App. 88–89. The court assumed that Wilson's counsel had indeed been “defcient” in failing ade- quately to investigate Wilson's background and physical con- dition for mitigation evidence and to present what he likely would have found at the sentencing hearing. Id., at 144. But, the court nonetheless deferred to the state habeas court's conclusion that these defciencies did not “prejudice” Wilson, primarily because the testimony of many witnesses was “cumulative,” and because the evidence of physical im- pairments did not include any physical examination or other support that would have shown the state-court determina- tion was “unreasonable.” Id., at 187; see Richter, 562 U. S., at 111–112. Wilson appealed to the Court of Appeals for the Eleventh Circuit. Wilson v. Warden, 774 F. 3d 671 (2014). The panel frst held that the District Court had used the wrong method for determining the reasoning of the relevant state court, namely, that of the Georgia Supreme Court (the fnal and highest state court to decide the merits of Wilson's claims). Id., at 678. That state-court decision, the panel conceded, was made without an opinion. But, the federal court was wrong to “look through” that decision and assume that it rested on the grounds given in the lower court's decision. Instead of “looking through” the decision to the state habeas court's opinion, the federal court should have asked what arguments “could have supported” the Georgia Supreme Court's refusal to grant permission to appeal. The panel

Page Proof Pending Publication 128 WILSON v. SELLERS Opinion of the Court proceeded to identify a number of bases that it believed rea- sonably could have supported the decision. Id., at 678–681. The Eleventh Circuit then granted Wilson rehearing en banc so that it could consider the matter of methodology. Wilson v. Warden, 834 F. 3d 1227 (2016). Ultimately six judges (a majority) agreed with the panel and held that its “could have supported” approach was correct. Id., at 1235. Five dissenting judges believed that the District Court should have used the methodology it did use, namely, the “look through” approach. Id., at 1242–1247, 1247–1269. Wilson then sought certiorari here. Because the Eleventh Circuit's opinion creates a split among the Circuits, we granted the petition. Compare id. , at 1235 (applying “could have supported” approach), with Grueninger v. Direc- tor, Va. Dept. of Corrections, 813 F. 3d 517, 525–526 (CA4 2016) (applying “look through” presumption post-Richter), and Cannedy v. Adams, 706 F. 3d 1148, 1156–1159 (CA9 2013) (same); see also Clements v. Clarke, 592 F. 3d 45, 52 (CA1 2010) (applying “look through” presumption pre-Richter); Bond v. Beard, 539 F. 3d 256, 289–290 (CA3 2008) (same); Mark v. Ault, 498 F. 3d 775, 782–783 (CA8 2007) (same); Joseph v. Coyle, 469 F. 3d 441, 450 (CA6 2006) (same). II We conclude that federal habeas law employs a “look through” presumption. That conclusion has parallels in this Court's precedent. In Ylst v. Nunnemaker, 501 U. S. 797 (1991), a defendant, convicted in a California state court of murder, appealed his conviction to the state appeals court where he raised a constitutional claim based on Miranda v. Arizona, 384 U. S. 436 (1966). 501 U. S., at 799–800. The appeals court rejected that claim, writing that “ `an objection based upon a Miranda violation cannot be raised for the frst time on appeal.' ” Id., at 799. The defendant then similarly challenged his conviction in the California Supreme Court and on collateral review in several state courts (including

Page Proof Pending Publication Cite as: 584 U. S. 122 (2018) 129 Opinion of the Court once again the California Supreme Court). In each of these latter instances the state court denied the defendant relief (or review). In each instance the court did so without an opinion or other explanation. Id., at 799–800. Subsequently, the defendant asked a federal habeas court to review his constitutional claim. Id., at 800. The higher state courts had given no reason for their decision. And this Court ultimately had to decide how the federal court was to fnd the state court's reasoning in those circum- stances. Should it have “looked through” the unreasoned decisions to the state procedural ground articulated in the appeals court or should it have used a different method? In answering that question Justice Scalia wrote the follow- ing for the Court: “The problem we face arises, of course, because many formulary orders are not meant to convey anything as to the reason for the decision. Attributing a reason is therefore both diffcult and artifcial. We think that the attribution necessary for federal habeas purposes can be facilitated, and sound results more often assured, by applying the following presumption: Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground. If an earlier opinion `fairly appear[s] to rest primarily upon federal law,' we will presume that no procedural default has been invoked by a subsequent unexplained order that leaves the judgment or its consequences in place. Similarly where, as here, the last reasoned opin- ion on the claim explicitly imposes a procedural default, we will presume that a later decision rejecting the claim did not silently disregard that bar and consider the mer- its.” Id., at 803 (citation omitted). Since Ylst, every Circuit to have considered the matter has applied this presumption, often called the “look through”

Page Proof Pending Publication 130 WILSON v. SELLERS Opinion of the Court presumption, but for the Eleventh Circuit—even where the state courts did not apply a procedural bar to review. See supra, at 128. And most Federal Circuits applied it prior to Ylst. See Ylst, supra, at 803 (citing Prihoda v. McCaugh- try, 910 F. 2d 1379, 1383 (CA7 1990); Harmon v. Barton, 894 F. 2d 1268, 1272 (CA11 1990); Evans v. Thompson, 881 F. 2d 117, 123, n. 2 (CA4 1989); Ellis v. Lynaugh, 873 F. 2d 830, 838 (CA5 1989)). That is not surprising in light of the fact that the “look through” presumption is often realistic, for state higher courts often (but certainly not always, see Redmon v. John- son, 302 Ga. 763, 809 S. E. 2d 468 (2018)) write “denied” or “affrmed” or “dismissed” when they have examined the lower court's reasoning and found nothing signifcant with which they disagree. Moreover, a “look through” presumption is often (but not always) more effciently applied than a contrary approach— an approach, for example, that would require a federal ha- beas court to imagine what might have been the state court's supportive reasoning. The latter task may prove partic- ularly diffcult where the issue involves state law, such as state procedural rules that may constrain the scope of a reviewing court's summary decision, a matter in which a federal judge often lacks comparative expertise. See Ylst, supra, at 805. The State points to a later case, Harrington v. Richter, 562 U. S. 86, which, it says, controls here instead of Ylst. In its view, Ylst should apply, at most, to cases in which the federal habeas court is trying to determine whether a state- court decision without opinion rested on a state procedural ground (for example, a procedural default) or whether the state court has reached the merits of a federal issue. In support, it notes that Richter held that the state-court deci- sions to which AEDPA refers include summary dispositions, i. e., decisions without opinion. Richter added that “deter- mining whether a state court's decision resulted from an un-

Page Proof Pending Publication Cite as: 584 U. S. 122 (2018) 131 Opinion of the Court reasonable legal or factual conclusion does not require that there be an opinion from the state court explaining the state court's reasoning.” 562 U. S., at 98. Richter then said that, where “a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief.” Ibid. And the Court concluded that, when “a federal claim has been pre- sented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state- law procedural principles to the contrary.” Id., at 99. In our view, however, Richter does not control here. For one thing, Richter did not directly concern the issue before us—whether to “look through” the silent state higher court opinion to the reasoned opinion of a lower court in order to determine the reasons for the higher court's decision. In- deed, it could not have considered that matter, for in Richter, there was no lower court opinion to look to. That is because the convicted defendant sought to raise his federal constitu- tional claim for the frst time in the California Supreme Court (via a direct petition for habeas corpus, as California law permits). Id., at 96. For another thing, Richter does not say the reasoning of Ylst does not apply in the context of an unexplained decision on the merits. To the contrary, the Court noted that it was setting forth a presumption, which “may be overcome when there is reason to think some other explanation for the state court's decision is more likely.” Richter, supra, at 99–100. And it referred in support to Ylst, 501 U. S., at 803. Further, we have “looked through” to lower court deci- sions in cases involving the merits. See, e. g., Premo v. Moore, 562 U. S. 115, 123–133 (2011); Sears v. Upton, 561 U. S. 945, 951–956 (2010) (per curiam ). Indeed, we decided one of those cases, Premo, on the same day we decided Rich- ter. And in our opinion in Richter we referred to Premo.

Page Proof Pending Publication 132 WILSON v. SELLERS Opinion of the Court 562 U. S., at 91. Had we intended Richter 's “could have sup- ported” framework to apply even where there is a reasoned decision by a lower state court, our opinion in Premo would have looked very different. We did not even cite the re- viewing state court's summary affrmance. Instead, we fo- cused exclusively on the actual reasons given by the lower state court, and we deferred to those reasons under AEDPA. 562 U. S., at 132 (“The state postconviction court's decision involved no unreasonable application of Supreme Court precedent”). III The State's further arguments do not convince us. The State points out that there could be many cases in which a “look through” presumption does not accurately identify the grounds for the higher court's decision. And we agree. We also agree that it is more likely that a state supreme court's single word “affrm” rests upon alternative grounds where the lower state court decision is unreasonable than, e. g., where the lower court rested on a state-law procedural ground, as in Ylst. But that is why we have set forth a presumption and not an absolute rule. And the unreason- ableness of the lower court's decision itself provides some evidence that makes it less likely the state supreme court adopted the same reasoning. Thus, additional evidence that might not be suffcient to rebut the presumption in a case like Ylst would allow a federal court to conclude that counsel has rebutted the presumption in a case like this one. For instance, a federal habeas court may conclude that counsel has rebutted the presumption on the basis of convincing al- ternative arguments for affrmance made to the State's high- est court or equivalent evidence presented in its briefng to the federal court similarly establishing that the State's high- est court relied on a different ground than the lower state court, such as the existence of a valid ground for affrmance that is obvious from the state-court record. The dissent ar- gues that the Georgia Supreme Court's recent decision in

Page Proof Pending Publication Cite as: 584 U. S. 122 (2018) 133 Opinion of the Court Redmon v. Johnson rebuts the presumption in Georgia be- cause that court indicated its summary decisions should not be read to adopt the lower court's reasoning. Post, at 140– 141, 143–144 (opinion of Gorsuch, J.). This misses the point. A presumption that can be rebutted by evidence of, for in- stance, an alternative ground that was argued or that is clear in the record was the likely basis for the decision is in accord with full and proper respect for state courts, like those in Georgia, which have well-established systems and proce- dures in place in order to ensure proper consideration to the arguments and contention in the many cases they must proc- ess to determine whether relief should be granted when a criminal conviction or its ensuing sentence is challenged. The State also points out that we do not necessarily pre- sume that a silent opinion of a federal court of appeals adopts the reasoning of the court below. The dissent similarly in- vokes these “traditional rules of appellate practice.” See post, at 138–140, 143. But neither the State nor the dissent provides examples of similar context. Were we to adopt a “look through” approach in respect to silent federal appeals court decisions as a general matter in other contexts, we would risk judges and lawyers reading those decisions as creating, through silence, a precedent that could be read as binding throughout the circuit—just what a silent decision may be thought not to do. Here, however, we “look through” the silent decision for a specifc and narrow pur- pose—to identify the grounds for the higher court's decision, as AEDPA directs us to do. See supra, at 124–126. We see no reason why the federal court's interpretation of the state court's silence should be taken as binding precedent outside this context, for example, as a statewide binding in- terpretation of state law. Further, the State argues that the “look through” ap- proach shows disrespect for the States. See Brief for Respondent 39 (“Wilson's approach to summary decisions refects an utter lack of faith in the ability of the highest

Page Proof Pending Publication 134 WILSON v. SELLERS Gorsuch, J., dissenting state courts to adjudicate constitutional rights”). We do not believe this is so. Rather the presumption seeks to replicate the grounds for the higher state court's decision. Where there are convincing grounds to believe the silent court had a different basis for its decision than the analysis followed by the previous court, the federal habeas court is free, as we have said, to fnd to the contrary. In our view, this approach is more likely to respect what the state court actually did, and easier to apply in practice, than to ask the federal court to substitute for silence the federal court's thought as to more supportive reasoning. Finally, the State argues that the “look through” approach will lead state courts to believe they must write full opinions where, given the workload, they would have preferred to have decided summarily. Though the matter is empirical, given the narrowness of the context, we do not believe that they will feel compelled to do so—at least not to any signif- cant degree. The State offers no such evidence in the many Circuits that have applied Ylst outside the procedural con- text. See supra, at 128. For these reasons, we reverse the Eleventh Circuit's judg- ment and remand the case for further proceedings consistent with this opinion. It is so ordered. Justice Gorsuch, with whom Justice Thomas and Justice Alito join, dissenting. After a state supreme court issues a summary order sus- taining a criminal conviction, should a federal habeas court reviewing that decision presume it rests only on the reasons found in a lower state court opinion? The answer is no. The statute governing federal habeas review permits no such “look through” presumption. Nor do traditional principles of appellate review. In fact, we demand the opposite pre- sumption for our work—telling readers that we independ- ently review each case and that our summary affrmances

Page Proof Pending Publication Cite as: 584 U. S. 122 (2018) 135 Gorsuch, J., dissenting may be read only as signaling agreement with a lower court's judgment and not necessarily its reasons. Because I can discern no good reason to treat the work of our state court colleagues with less respect than we demand for our own, I would reject petitioner's presumption and must respect- fully dissent. Even so, some good news can be found here. While the Court agrees to adopt a “look through” presumption, it does so only after making major modifcations to petitioner's pro- posal. The Court tells us that the presumption should count for little in cases “where the lower state court decision is unreasonable” because it is not “likely” a state supreme court would adopt unreasonable reasoning. Ante, at 132. In cases like that too, the Court explains, federal courts remain free to sustain state court convictions whenever reasonable “ground[s] for affrmance [are] obvious from the state-court record” or appear in the parties' submissions in state court or the federal habeas proceeding. Ibid. Exactly right, and exactly what the law has always demanded. So while the Court takes us on a journey through novel presumptions and rebuttals, it happily returns us in the end very nearly to the place where we began and belonged all along. * * * To see the problem with petitioner's presumption, start with the statute. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs federal review of state criminal convictions. It says a federal court may not grant habeas relief overturning a state court conviction “with respect to any claim that was adjudicated on the mer- its in State court proceedings” unless (among other things) the petitioner can show that the state court proceedings “re- sulted in a decision that was contrary to, or involved an un- reasonable application of, clearly established Federal law.” 28 U. S. C. § 2254(d)(1). As the text and our precedent make clear, a federal habeas court must focus its review on the

Page Proof Pending Publication 136 WILSON v. SELLERS Gorsuch, J., dissenting fnal state court decision on the merits, not any preceding decision by an inferior state court. See Greene v. Fisher, 565 U. S. 34, 40 (2011). Nor does it matter whether the fnal state court decision comes with a full opinion or in a sum- mary order: the same deference is due all fnal state court decisions. Harrington v. Richter, 562 U. S. 86, 98 (2011); Cullen v. Pinholster, 563 U. S. 170, 187 (2011). The upshot of these directions is clear. Even when the fnal state court decision “is unaccompanied by an explana- tion, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief.” Richter, 562 U. S., at 98 (emphasis added). And before a federal court can disregard a fnal summary state court decision, it “must determine what arguments or theories . . . could have supporte[d] the state court's deci- sion; 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.” Id., at 102 (emphasis added). Far from suggesting federal courts should presume a state supreme court sum- mary order rests on views expressed in a lower court's opin- ion, then, AEDPA and our precedents require more nearly the opposite presumption: federal courts must presume the order rests on any reasonable basis the law and facts allow. If this standard seems hard for a habeas petitioner to over- come, “that is because it was meant to be.” Ibid. In AEDPA, Congress rejected the notion that federal habeas review should be “a substitute for ordinary error correction.” Id., at 102–103. Instead, AEDPA “refects the view that ha- beas corpus is a `guard against extreme malfunctions in the state criminal justice systems.' ” Id., at 102 (emphasis added). “The reasons for this approach are familiar. `Fed- eral habeas review of state convictions frustrates both the States' sovereign power to punish offenders and their good- faith attempts to honor constitutional rights.' It `disturbs the State's signifcant interest in repose for concluded litiga- tion, denies society the right to punish some admitted offend-

Page Proof Pending Publication Cite as: 584 U. S. 122 (2018) 137 Gorsuch, J., dissenting ers, and intrudes on state sovereignty to a degree matched by few exercises of federal judicial authority.' ” Id., at 103 (citations omitted). Petitioner and the Court today labor to distinguish these authorities, but I don't see how they might succeed. They point to the fact that in Richter no state court had issued a reasoned order, while here a lower state court did. See Brief for Petitioner 28–30; ante, at 131. But on what ac- count of AEDPA or Richter does that factual distinction make a legal difference? Both the statute and our prece- dent explain that federal habeas review looks to the fnal state court decision, not any decision preceding it. Both in- struct that to dislodge the fnal state court decision a peti- tioner must prove it involved an unreasonable application of federal law. And to carry that burden in the face of a fnal state court summary decision, Richter teaches that the peti- tioner must show no lawful basis could have reasonably sup- ported it. To observe that some fnal state court summary decisions are preceded by lower court reasoned opinions bears no more relevance to the AEDPA analysis than to say that some fnal state court summary decisions are issued on Mondays. 1 1 Petitioner and the Court separately suggest that Premo v. Moore, 562 U. S. 115 (2011), supports their position because the Court there did not follow Richter 's approach. See Brief for Petitioner 40; ante, at 131–132. But the following sentences from Moore (with emphasis added) are clear proof it did: “ `[t]he question is whether there is any reasonable argument that counsel satisfed Strickland's deferential standard,' ” 562 U. S., at 123 (quoting Richter); “[t]o overcome the limitation imposed by § 2254(d), the Court of Appeals had to conclude that both fndings [i. e., no defcient per- formance and no prejudice] would have involved an unreasonable applica- tion of clearly established law,” ibid. (citing Richter); “[t]he state court here reasonably could have determined that [no prejudice existed],” id., at 129. Moore simply found that a reasonable basis—provided by a state postconviction court—could (and did) support the denial of habeas relief. Id., at 123. It did not rely on an unreasonable basis provided by a lower court to grant habeas relief, as petitioner seeks to have us do. Moore thus accords with AEDPA and our precedents, while petitioner's presump- tion does not.

Page Proof Pending Publication 138 WILSON v. SELLERS Gorsuch, J., dissenting Unable to distinguish Richter, petitioner seeks to confne it by caricature. Because that case requires a federal court to “imagine” its own arguments for denying habeas relief and engage in “decision-making-by-hypothetical,” he argues it should be limited to its facts. Brief for Petitioner 28– 30, 33; Reply Brief 9. But the Court today does not adopt petitioner's characterization, and for good reason: Richter re- quires no such thing. In our adversarial system a federal court generally isn't required to imagine or hypothesize ar- guments that neither the parties before it nor any lower court has presented. To determine if a reasonable basis “could have supported” a summary denial of habeas relief under Richter, a federal court must look to the state lower court opinion (if there is one), any argument presented by the parties in the state proceedings, and any argument pre- sented in the federal habeas proceeding. Of course, a fed- eral court sometimes may consider on its own motion alter- native bases for denying habeas relief apparent in the law and the record, but it does not generally bear an obligation to do so. See Wood v. Milyard, 566 U. S. 463, 471–473 (2012) (discussing Day v. McDonough, 547 U. S. 198 (2006), and Granberry v. Greer, 481 U. S. 129 (1987)). Nor is that the end of the problems with petitioner's “look through” presumption. It also defes traditional rules of ap- pellate practice that informed Congress's work when it adopted AEDPA and that should inform our work today. McQuiggin v. Perkins, 569 U. S. 383, 398, n. 3 (2013). Ap- pellate courts usually have an independent duty to review the facts and law in the cases that come to them. Often they see errors in lower court opinions. But often, too, they may affrm on alternative bases either argued by the parties or (sometimes) apparent to them on the face of the record. See, e. g., SEC v. Chenery Corp., 318 U. S. 80, 88 (1943) (not- ing “the settled rule that, in reviewing the decision of a lower court, it must be affrmed if the result is correct `al-

Page Proof Pending Publication Cite as: 584 U. S. 122 (2018) 139 Gorsuch, J., dissenting though the lower court relied upon a wrong ground or gave a wrong reason' ”); Wood, supra, at 473. And a busy appellate court sometimes may not see the proft in devoting its lim- ited resources to explaining the error and the alternative basis for affrming when the outcome is sure to remain the same, so it issues a summary affrmance instead. To refect these realities, this Court has traditionally warned readers against presuming our summary affrmance orders rest on reasons articulated in lower court opinions. Comptroller of Treasury of Md. v. Wynne, 575 U. S. 542, 560 (2015) (“ `[A] summary affrmance is an affrmance of the judgment only,' and `the rationale of the affrmance may not be gleaned solely from the opinion below' ”); Mandel v. Bradley, 432 U. S. 173, 176 (1977) (per curiam ). The courts of appeals have issued similar warnings for similar reasons about their own summary orders. See, e. g., Rates Technology, Inc. v. Mediatrix Telecom, Inc., 688 F. 3d 742, 750 (CA Fed. 2012); DeShong v. Seaboard Coast Line R. Co., 737 F. 2d 1520, 1523 (CA11 1984). And respect for this traditional principle of appellate practice surely weighs against presuming a state court's summary disposition rests solely on a lower court's opinion. On what account could we reasonably demand more respect for our summary decisions than we are willing to extend to those of our state court colleagues? Petitioner and the Court offer only this tepid reply. They suggest that their “look through” presumption seeks to re- fect “realistic[ally]” the basis on which the state summary decision rests. See Brief for Petitioner 44; ante, at 130. But to the extent this is a claim that their presumption com- ports realistically with longstanding traditions of appellate practice, it is wrong for the reasons just laid out. In fact, applying traditional understandings of appellate practice, this Court has refused to presume that state appellate courts even read lower court opinions rather than just the briefs before them. See Baldwin v. Reese, 541 U. S. 27, 31 (2004).

Page Proof Pending Publication 140 WILSON v. SELLERS Gorsuch, J., dissenting And surely it is a mystery how the Court might today pre- sume state supreme courts rely on that which it traditionally presumes they do not read. If the argument here is instead an empirical claim that the “look through” presumption comports realistically with what happened in this case and others like it, it is wrong too. Petitioner was convicted in Georgia. And during the pend- ency of this case in our Court, the Georgia Supreme Court issued an order confrming that lower courts in that State may not “presum[e] that when this Court summarily denies an application to appeal an order denying habeas corpus re- lief, we necessarily agree with everything said in that order.” Redmon v. Johnson, 302 Ga. 763, 768, 809 S. E. 2d 468, 472 (2018). The court explained that it has long followed just this rule for all the reasons you'd expect. It independently reviews the facts and law in each habeas case. If it fnds something it thinks might amount to a consequential error, the court sets the case for argument and usually prepares a full opinion. But “[o]n many occasions,” the court fnds only “inconsequential errors.” Id., at 765–766, 809 S. E. 2d, at 471. 2 And in these cases the court normally issues a sum- 2 In language that will sound familiar to all judges and lawyers involved in litigating habeas claims, the Georgia Supreme Court explained that “[t]here are many examples of inconsequential errors, but among the most common are the following: · The habeas court rejects a claim both on a procedural ground and, alter- natively, on the substantive merits. This Court determines that one of those rulings appears factually or legally erroneous, but the other is correct, so an appeal would result in the habeas court's judgment being affrmed on the correct ground. · In addressing an ineffective assistance of counsel claim under Strick- land v. Washington, 466 U. S. 668 (1984), the habeas court rules that counsel did not perform defciently as alleged. That ruling appears to be erroneous, but this Court determines based on our review of the record that no prejudice resulted from the defcient performance, so an appeal would result in affrming the habeas court's judgment. See id., at 697; Rozier v. Caldwell, 300 Ga. 30, 31–32 (2016). · In addressing other claims that require the petitioner to prove each element of a multi-part test, such as a claim under Brady v. Maryland,

Page Proof Pending Publication Cite as: 584 U. S. 122 (2018) 141 Gorsuch, J., dissenting mary affrmance because the costs associated with full treat- ment of the appeal outweigh the benefts of correcting what is at most harmless error, especially given the court's heavy caseload and the need to attend to more consequential mat- ters. 3 Petitioner's presumption thus does not seek to refect reality; it seeks to deny it. The presumption is especially unrealistic in another way. The Court and petitioner presume that a summary order by a state supreme court adopts all the specifc reasons ex- pressed by a lower state court. In doing so, they disregard a far more realistic possibility: that the state supreme court might have relied only on the same grounds for the denial of relief as did the lower court without necessarily adopting all its reasoning. Here, the lower state court denied petition- er's Strickland claim on the grounds that counsel's perform- 373 U. S. 83 (1963), the habeas court makes factual or legal errors re- garding the petitioner's proof of one element but correctly concludes (or the record clearly shows) that the petitioner has not proved another required element. An appeal would result in this Court's affrming the habeas court's judgment. · The habeas court misstates a legal standard in one part of its order, but recites the standard correctly elsewhere in the order, and it is clear that the judgment is correct applying the right standard. · In addressing a habeas petition with multitudinous claims, the habeas court's order fails to explicitly rule on a claim, but the record shows that the claim is entirely meritless.” Redmon, 302 Ga., at 766–767, 809 S. E. 2d, at 471 (some citations omitted). 3 “[T]he burdens of invoking the full appellate process, including writing opinions simply to point out factual or legal errors that do not affect the judgment, are signifcant for this Court. We issue about 350 published opinions each year, all en banc, meaning that each Justice (seven of us until 2017, nine now) must evaluate an opinion a day and author 35 to 50 majority opinions a year, with the help of only two law clerks in each chambers. Moreover, the Georgia Constitution requires this Court to issue its decision within the two terms of court after an appeal is docketed (which means within about eight months, given our three terms per year). . . . And our reasoned decisions are precedent binding on all other Georgia courts, . . . so issuing opinions where the relevant law is already well-established runs the risk of creating inconsistencies.” Id., at 767– 768, 809 S. E. 2d, at 472 (footnote omitted).

Page Proof Pending Publication 142 WILSON v. SELLERS Gorsuch, J., dissenting ance was not defcient and petitioner suffered no prejudice. And it gave several reasons for its conclusions: for example, the evidence petitioner sought to admit “would have been inadmissible on evidentiary grounds, cumulative of other tes- timony, or otherwise would not have, in reasonable probabil- ity, changed the outcome of the trial.” App. 61. In sum- marily denying relief, the state supreme court might have reached the same conclusions (no defcient performance and no prejudice) without resting on the exact same reasons. While the “look through” presumption cannot be squared with AEDPA's text, traditional rules, or Georgia's actual practice, petitioner and the Court contend it is at least con- sistent with Ylst v. Nunnemaker, 501 U. S. 797 (1991). See Brief for Petitioner 38; ante, at 128–131. But it is not. In habeas review of state court convictions, federal courts may only review questions of federal law. So if a state court de- cision rejecting a petitioner's federal law claim rests on a state procedural defect (say the petitioner fled too late under state rules), federal courts generally have no authority to reach the federal claim. Ylst simply teaches that, if a lower state court opinion expressly relied on an independent and adequate state ground, we should presume a later state appellate court summary disposition invoked it too. See 501 U. S., at 801, 803. The decision thus seeks to protect state court decisions from displacement and reaches a result con- sistent with the traditional rule that a summary order in- vokes all fairly presented bases for affrmance. Neither can Ylst be reimagined today as meaning anything more. The case came years before AEDPA's new standards for habeas review and can offer nothing useful about them. The work of interpreting AEDPA's demands was left instead to Richter. And, as we've seen, Richter forecloses petition- er's presumption. Of course, and as petitioner stresses, Richter didn't overrule Ylst. But that's for the simple rea- son that Ylst continues to do important, if limited, work in the disposition of procedural default claims because “AEDPA

Page Proof Pending Publication Cite as: 584 U. S. 122 (2018) 143 Gorsuch, J., dissenting did not change the application of pre-AEDPA procedural de- fault principles.” B. Means, Federal Habeas Manual § 9B:3 (2017). Uncomfortable questions follow too from any effort to re- imagine Ylst. If we were to take Ylst as suggesting that summary decisions presumptively rely only on the reasons found in lower court opinions, wouldn't we have to overrule our many precedents like Wynne and Mandel that explicitly reject any such presumption? Wouldn't circuit courts have to discard their own similar precedents? See supra, at 138– 139. Consistency would seem to demand no less. The only answer petitioner and the Court offer is no an- swer at all. Consistency, they suggest, is overrated. Ev- erywhere else in the law we should retain the usual rule that a summary affrmance can't be read as presumptively resting on the lower court's reasons. They encourage us to use Ylst only as a tool for making a special exception for AEDPA cases: here and here alone should we adopt petitioner's “look through” presumption. Brief for Petitioner 18, 20; ante, at 133 (stating that “we `look through' the silent decision for a specifc and narrow purpose” under AEDPA). But just stat- ing this good-for-habeas-only rule should be enough to reject it. Summary orders that happen to arise in state habeas cases should receive no less respect than those that arise anywhere else in the law. If anything, they should re- ceive more respect, because federal habeas review of state court decisions “ `intrudes on state sovereignty to a degree matched by few exercises of federal judicial authority.' ” Richter, 562 U. S., at 103. * * * Petitioner's novel presumption not only lacks any prove- nance in the law, it promises nothing for its trouble. Con- sider the most obvious question it invites, one suggested by the facts of our own case: what happens when a state supreme court issues an order explaining that its summary

Page Proof Pending Publication 144 WILSON v. SELLERS Gorsuch, J., dissenting affrmances do not necessarily adopt the reasons in lower court opinions? Should that be enough to rebut the “look through” presumption? After defending the presumption, even the dissent in the Eleventh Circuit decision under re- view recognized that a disclaimer along these lines should suffce to rebut it. See Wilson v. Warden, 834 F. 3d 1227, 1263 (2016) (en banc) (opinion of J. Pryor, J.) (“The Georgia Supreme Court could simply issue a one-line order denying an application for a certifcate of probable cause that indi- cates agreement with the result the superior court reached but not the lower court's reasons for rejecting the petition- er's claim”). And, of course, the Georgia Supreme Court has recently responded to the dissent's invitation by issuing just such a disclaimer. So in the end petitioner's presumption seems likely to accomplish nothing for him and only needless work for others—inducing more state supreme courts to churn out more orders restating the obvious fact that their summary dispositions don't necessarily rest on the reasons given by lower courts. Along the way, too, it seems federal courts will have their hands full. For while the Eleventh Circuit dissent had no diffculty acknowledging that an order like Georgia's suffces to overcome petitioner's presumption, the Court today refuses to supply the same obvious answer. Consider, too, the questions that would follow in the un- likely event a general order like the one from the Georgia Supreme Court wasn't considered enough to overcome petitioner's presumption. Quickly federal courts would be forced to decide: does the “look through” presumption sur- vive even when a state supreme court includes language in every summary order explaining that its decision does not necessarily adopt the reasoning below? What if the state supreme court says something slightly different but to the same effect, declaring in each case that it has independently considered the relevant law and evidence before denying re- lief? And if we start dictating what state court disclaimers should look like and where they should appear, what exactly

Page Proof Pending Publication Cite as: 584 U. S. 122 (2018) 145 Gorsuch, J., dissenting is left of Congress's direction that our review is intended to guard only against “ `extreme malfunctions' ” in state crimi- nal justice systems? Richter, supra, at 102. Wouldn't we be slipping into the business of “tell[ing] state courts how they must write their opinions,” something this Court has long said federal habeas courts “have no power” to do? Coleman v. Thompson, 501 U. S. 722, 739 (1991). Apart from whether a (general or case-specifc) order from a state supreme court suffces to overcome petitioner's pre- sumption, there's the question what else might. Say a lower state court opinion includes an error but the legal briefs or other submissions presented to the state supreme court sup- ply sound alternative bases for affrmance. In those circum- stances, should a federal habeas court really presume that the state supreme court chose to repeat the lower court's mistake rather than rely on the solid grounds argued to it by the parties? What if a sound alternative basis for af- frmance is presented for the frst time in the parties' federal habeas submissions: are we to presume that the state su- preme court was somehow less able to identify a reasonable basis for affrmance than federal habeas counsel? Here at least the Court does offer an answer. Petitioner insists that federal courts should presume that state su- preme court summary orders rest on unreasonable lower state court opinions even in the face of reasonable alterna- tive arguments presented to the state supreme court or in federal habeas proceedings. But seeming to recognize the unreasonableness of this request, the Court opts to reshape radically petitioner's proposed presumption before adopting it. First, the Court states that “it is more likely that a state supreme court's single word `affrm' rests upon alternative grounds where the lower state court decision is unreason- able.” Ante, at 132. Then, the Court proceeds to explain that “a federal habeas court may conclude that counsel has rebutted the presumption on the basis of convincing alterna- tive arguments for affrmance made to the State's highest

Page Proof Pending Publication 146 WILSON v. SELLERS Gorsuch, J., dissenting court or equivalent evidence presented in its briefng to the federal court similarly establishing that the State's highest court relied on a different ground than the lower state court, such as the existence of a valid ground for affrmance that is obvious from the state-court record.” Ibid. The Court's reshaping of petitioner's presumption reveals just how futile this whole business really is. If, as the Court holds, the “look through” presumption can be rebutted “where the lower state court decision is unreasonable,” ibid., it's hard to see what good it does. Petitioner sought to as- sign unreasonable lower court opinions to fnal state court summary decisions. To hear now that essentially only rea- sonable (and so sustainable) lower state court opinions are presumptively adopted by fnal state court summary deci- sions will surely leave him sour on this journey and federal habeas courts scratching their heads about the point of it all. And if, as the Court also tells us, a federal habeas court can always deny relief on a basis that is apparent from the record or on the basis of alternative arguments presented by the parties in state or federal proceedings, then the “look through” presumption truly means nothing and we are back where we started. With the Court's revisions to petitioner's presumption, a federal habeas court is neither obliged to look through exclusively to the reasons given by a lower state court nor required to presume that a summary order adopts those reasons. All this is welcome news of a sort. The Court may prom- ise us a future of foraging through presumptions and rebut- tals. But at least at the end of it we rest knowing that what was true before remains true today: a federal habeas court should look at all the arguments presented in state and fed- eral court and examine the state court record. And a fed- eral habeas court should sustain a state court summary deci- sion denying relief if those materials reveal a basis to do so reasonably consistent with this Court's holdings. Exactly what a federal court applying the statute and Richter has

Page Proof Pending Publication Cite as: 584 U. S. 122 (2018) 147 Gorsuch, J., dissenting had to do all along. See supra, at 135–138. And exactly what the Eleventh Circuit correctly held it had to do in this case. * * * Today, petitioner invites us to adopt a novel presumption that AEDPA, traditional principles of appellate review, and Georgia practice all preclude. It's an invitation that re- quires us to treat the work of state court colleagues with disrespect we would not tolerate for our own. And all to what end? None at all, it turns out. As modifed by the Court, petitioner's presumption nearly drops us back where we began, with only trouble to show for the effort. Respect- fully, I would decline the invitation to this circuitous journey and just affrm.