Oscar Thomas v. Marc Clements , 797 F.3d 445 ( 2015 )

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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-‐‑2539
OSCAR C. THOMAS,
Petitioner-‐‑Appellant,
v.
MARC CLEMENTS,
Respondent-‐‑Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 12-‐‑cv-‐‑1024 — William E. Callahan, Jr., Magistrate Judge.
____________________
DECIDED AUGUST 7, 2015
____________________
Before FLAUM, WILLIAMS, and TINDER, Circuit Judges.
PER CURIAM. The panel has voted unanimously to deny
appellee’s petition for rehearing, and no judge in active ser-‐‑
vice has called for a vote on the petition for rehearing en
banc, which also is denied.
EASTERBROOK, Circuit Judge, concurring in the denial of
rehearing en banc. The panel held that, if two state courts
consider a subject, with Court A denying relief on one
ground and Court B on a different ground, then a federal
2 No. 14-‐‑2539
court must ignore the first decision and consider only the
second for the purpose of 28 U.S.C. §2254(d). See 789 F.3d
760 (7th Cir. 2015). Section 2254(d) provides that “[a]n appli-‐‑
cation for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not
be granted with respect to any claim that was adjudicated on
the merits in State court proceedings unless the adjudication
of the claim” contradicted the Supreme Court, applied that
Court’s decisions unreasonably, or determined the facts un-‐‑
reasonably. If Court A’s decision must be ignored, then
whatever topic it resolved has not been “adjudicated on the
merits” and §2254(d) drops out.
Whether the first in a sequence of state-‐‑court decisions
should be ignored has divided the courts of appeals. Com-‐‑
pare Barton v. Warden, Southern Ohio Correctional Facility, 786
F.3d 450, 463 (6th Cir. 2015), and Barker v. Fleming, 423 F.3d
1085, 1093 (9th Cir. 2005) (both limiting §2254(d) to the final
state-‐‑court decision that included at least one reason), with
Collins v. Secretary, 742 F.3d 528, 546 n.12 (3d Cir. 2014), Lo-‐‑
den v. McCarty, 778 F.3d 484, 495 (5th Cir. 2015), and Ham-‐‑
mond v. Hall, 586 F.3d 1289, 1332 (11th Cir. 2009) (considering
the explanations given by all state judges).
The panel thought that Ylst v. Nunnemaker, 501 U.S. 797
(1991), supports ignoring reasons that precede the final state
decision. That is not so clear to me. Nunnemaker deals with a
situation in which Court A says something and Court B is
silent (say, when it denies a petition for discretionary re-‐‑
view). When this sequence occurs, Nunnemaker holds, the
federal court should treat the reason given by Court A as the
state’s rationale. See also Hittson v. Chatman, 135 S. Ct. 2126
(2015) (Ginsburg, J., concurring in the denial of certiorari).
No. 14-‐‑2539 3
The Court adopted this look-‐‑past-‐‑silence approach to pro-‐‑
vide proper respect to the state’s effective adjudications.
When two state courts give different reasons, and the second
(a court of appeals or state supreme court) does not disagree
with the first (a trial court or intermediate appellate court),
there is little reason to treat the first as having been obliterat-‐‑
ed. Respect for the state judiciary requires considering both.
Still, there is little point in granting rehearing en banc to
move this circuit from one side of a conflict to another. The
subject belongs on the Supreme Court’s plate.
Rehearing en banc is especially inappropriate because the
answer may not matter. I have been generic, talking about
“grounds” in general, resolved by “Court A” and “Court B.”
But most disputes of this kind arise from a single asserted
problem: ineffective assistance of counsel. Under Strickland
v. Washington, 466 U.S. 668 (1984), ineffective assistance has
two components: deficient performance and prejudice.
Courts can reject an ineffective-‐‑assistance claim by deciding
either of these components adversely to the petitioner. Re-‐‑
solving an ineffective-‐‑assistance claim on one of these
grounds makes for a shorter opinion and also avoids what
many judges consider to be dicta (others would call it an al-‐‑
ternative holding).
Consider what happened in this case. After Oscar Thom-‐‑
as petitioned for collateral relief, the state’s court of first in-‐‑
stance held a hearing and concluded that counsel’s perfor-‐‑
mance satisfied the Sixth Amendment. Wisconsin’s court of
appeals did not disagree with that assessment but thought it
unnecessary to address the performance component. It held
that, even if counsel’s performance fell short, Thomas did
not suffer prejudice. Our panel thought that the court of ap-‐‑
4 No. 14-‐‑2539
peals had contradicted the Supreme Court by misstating the
standard for prejudice—it asked whether better performance
would have led to a different result, while Strickland poses
the question whether there was a reasonable probability of a
different result. The panel then put everything the state judi-‐‑
ciary had said to one side and made an independent deci-‐‑
sion on every issue. Nothing any state judge did mattered
because the initial decision (about performance) didn’t
count, and the appellate decision (about prejudice) articulat-‐‑
ed the wrong legal standard. On the merits, the panel found
both deficient performance and prejudice—though it con-‐‑
ceded that the case might well have come out the other way
had §2254(d) been applied to either component of the inef-‐‑
fective-‐‑assistance analysis.
Two legal rules underlie this approach. One is the propo-‐‑
sition that the opinion of every state court except the last
must be ignored. The other is the proposition that perfor-‐‑
mance and prejudice, the two components of an ineffective-‐‑
assistance claim under Strickland, are separate “claims” for
the purpose of §2254(d). The panel discussed the first of the-‐‑
se but not the second, and it is on the second that I want to
concentrate.
Why should two components of ineffective assistance be
separate “claims” for the purpose of §2254(d)? They are dis-‐‑
tinct issues, certainly, but why distinct claims? Unless every
“issue” is a “claim” for the purpose of §2254(d), it should be
enough that the state court adjudicated the ineffective-‐‑
assistance contention. That it avoided alternative grounds of
decision does not mean that it failed to adjudicate the
“claim”; addressing either the performance or the prejudice
component resolves the claim, and enough is enough.
No. 14-‐‑2539 5
Harrington v. Richter, 562 U.S. 86, 97–100 (2011), holds
that §2254(d) applies even when a state court gives no rea-‐‑
son; §2254(d) is activated by a decision on the merits, not by
the length (or even the existence) of an opinion. Doesn’t this
imply that, when a state court gives one sufficient reason
and stops, the claim has been fully adjudicated? We know
from Davis v. Ayala, 135 S. Ct. 2187 (2015), that, if a state
court rejects a claim on harmless-‐‑error grounds, that’s a rul-‐‑
ing “on the merits” for the purpose of §2254(d). Doesn’t this
imply that a decision on Strickland’s prejudice component
resolves the whole ineffective-‐‑assistance claim on the merits
for the purpose of §2254(d)?
A series of decisions in this circuit since §2254(d)’s en-‐‑
actment in 1996 equates “claim” with “issue.” The most
thorough of these is Woolley v. Rednour, 702 F.3d 411 (7th Cir.
2012). See also, e.g., Toliver v. Pollard, 688 F.3d 853 (7th Cir.
2012); Sussman v. Jenkins, 642 F.3d 532 (7th Cir. 2011) (Ripple,
J., in chambers). These decisions collect earlier opinions, but
none explains why “claim” means “issue.” Elsewhere we
have treated all aspects of ineffective assistance as a single
“claim” for the purpose of 28 U.S.C. §2244(b), which ad-‐‑
dresses successive litigation. See Duarte v. United States, 81
F.3d 75 (7th Cir. 1996). Why should “claim” have one mean-‐‑
ing in §2244 and a different meaning in §2254?
Before 2011, when the Supreme Court decided Richter,
panels in this circuit tacitly equated “issue” with “claim” by
asserting that §2254(d) requires a federal court to “defer to”
the reasoning of the state judiciary—and, when there is no
reasoning on a particular topic, there’s nothing to defer to.
But §2254(d) does not mention deference. It does not treat a
state court as if it were a federal administrative agency,
6 No. 14-‐‑2539
whose decision were being reviewed under the APA subject
to the Chenery doctrine, which limits the judiciary to evaluat-‐‑
ing the agency’s stated reasons. Section 2254(d) says that, if a
state court has resolved a “claim” on the merits, the prison-‐‑
er’s petition must be denied unless an exception has been
established. That a state court thinks one reason enough, and
omits what on its understanding would be either dictum or
an alternative holding, does not authorize the federal court
to substitute its judgment for the state judiciary’s (which is
what “de novo review” means).
Richter pulled the rug out from under our pre-‐‑2011 cases
by holding that §2254(d) applies even if the state court was
silent. According to Woolley, however, although Richter re-‐‑
jects this court’s original rationale, it does not require a
change in result. That’s because, in Wiggins v. Smith, 539 U.S.
510, 534 (2003), the Supreme Court itself made a de novo de-‐‑
cision on an issue that the state court did not address, alt-‐‑
hough the state court did resolve the “claim” on the merits.
See also Rompilla v. Beard, 545 U.S. 374, 390 (2005); Porter v.
McCollum, 558 U.S. 30, 39 (2009).
Wiggins, Rompilla, and Porter all say that the application
of §2254(d) depends on which issues a state court discusses.
Porter, the most recent of this line, states flatly (558 U.S. at
39): “Because the state court did not decide whether Porter’s
counsel was deficient, we review this element of Porter’s
Strickland claim de novo. Rompilla v. Beard, 545 U.S. 374, 390
(2005).” But it is not sound to treat as a holding everything
the Supreme Court ever said on the way to any decision. The
Court resolves the questions on which certiorari was grant-‐‑
ed. None of the petitions in Wiggins, Rompilla, and Porter
presented the question whether “issue” is the same as
No. 14-‐‑2539 7
“claim” under §2254(d). None of the briefs in any of these
cases devotes an argument to that subject. The Supreme
Court did not address that topic in any of its opinions or
even recognize that “issue” and “claim” might differ; it has
never explained why each component of Strickland is a
“claim” for the purpose of §2254(d).
We have the judicial equivalent of a rumor chain. The
first decision in a sequence (Wiggins) makes an unreasoned
assertion on which no one had focused—perhaps because in
2003, when Wiggins was decided, many lawyers thought
about §2254(d) in terms of deference to the state court’s rea-‐‑
sons and found it natural to say that §2254(d) is limited to
issues expressly discussed. Later cases, such as Rompilla and
Porter, repeat an assertion from Wiggins that was not im-‐‑
portant to the questions those petitions raised. Because the
parties have not questioned the first link of the chain, the
Justices don’t question it either. A later decision (Richter)
then jettisons the assumption behind the first link in the
chain, showing that “claim” in §2254(d) is not a synonym for
the state court’s rationale. But no one notices that the most
recent decision affects the earlier assumption, and further
litigation gets diverted. The diversion in this proceeding is
that the parties have concentrated on the question whether a
federal court should look through the opinion of Court B to
the reasons on a different issue given by Court A.
Instead of tackling that fallout from Wiggins, the Su-‐‑
preme Court ought to revisit the unreasoned statement in
Wiggins that has made the subject important. The Justices do
not think of drive-‐‑by statements (that is, things said without
the benefit of briefs or reasoning) as “holdings” that need to
be followed or overruled. When the subject is finally pre-‐‑
8 No. 14-‐‑2539
sented for consideration, it can be resolved on the merits
without pretending that stare decisis controls the outcome.
This is so when the topic is subject-‐‑matter jurisdiction. See,
e.g., Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161 (2010);
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 91
(1998). When the subject is non-‐‑jurisdictional, the non-‐‑effect
of an unreasoned declaration is even clearer.
The federal judiciary should apply §2254(d) as written
and ask whether the state judiciary has decided a “claim” on
the merits, rather than whether the last state court has writ-‐‑
ten an opinion about a particular issue relevant to that claim.
But the contrary view is entrenched in this circuit’s prece-‐‑
dent, and it has the support of declarations (if unreasoned
ones) by the Supreme Court and several other circuits. See,
e.g., Rayner v. Mills, 685 F.3d 631, 637 (6th Cir. 2012). Rehear-‐‑
ing this case en banc would not avoid the need for the Justic-‐‑
es to consider this topic. That is why I have not called for a
vote on the petition for rehearing en banc.