Seligman on AEDPA's Application to Summary Dispositions

Matthew Seligman has posted Harrington's Wake: Unanswered Questions on AEDPA's Application to Summary Dispositions (Stanford Law Review, Forthcoming) on SSRN. Here is the abstract:

In this Note, I propose a new solution to the problem of the Antiterrorism and Effective Death Penalty Act’s application to state court summary dispositions – decisions unaccompanied by written opinion, and so without reasons provided. Summary dispositions are extremely common: I present new empirical data demonstrating that as many as 97.8% of state habeas petitions in California are decided by summary disposition. Under AEDPA, when a state court has already adjudicated an issue on the merits, a federal court may grant a writ of habeas corpus to a state prisoner on the basis of that issue only when the state court’s decision was contrary to, or involved an unreasonable application of clearly established federal law. 28 U.S.C. § 2254(d). This “reasonableness” standard of review seems to presuppose a written opinion memorializing the state court’s reasoning, which the federal court can subsequently analyze – and so it is unclear whether, and how, AEPDA should apply in the absence of a written opinion.

I first argue that the Supreme Court was correct to hold in Harrington v. Richter, 562 U.S. (2011), that summary dispositions are adjudications on the merits for the purposes of § 2254(d)(1). To date, there have been no scholarly treatments of the Harrington decision.

But even if AEDPA applies to summary dispositions, there remains the further crucial question of how that deference should apply. When is a state court decision unreasonable, when it provides no reasons? Neither the Court in Harrington, nor the circuit courts, nor commentators writing before Harrington have squarely addressed this question. To date, the scholarship has addressed only whether summary dispositions are adjudications on the merits, and thus only addressed whether AEDPA applies. No article to date has addressed the crucial question of how AEDPA applies – nor the deep normative concerns regarding the methodology of its application in this extraordinarily common context. The Note’s principal doctrinal contribution – the conclusion that many summary dispositions are unreasonable application of federal law because they fail to consider relevant evidence – thus fills an important hole in the existing scholarship.

To reach this conclusion, I reorient the debate away from the question of whether AEDPA applies, and towards an examination of the state court’s deliberative processes in generating its decision. I distinguish between record-based claims, which are predicated on evidence contained in the trial record, and extra-record claims, which are predicated on evidence outside that record, such as a claim for ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). When a state court decides a record-based claim by summary disposition, a federal court cannot assume that the state court failed to examine the evidence it had before it. However, in certain procedural contexts, the issuance of a summary disposition necessarily entails that the state court never examined extra-record evidence. Such summary dispositions of extra-record claims are per se unreasonable because, as the Supreme Court itself recognized in Terry Williams v. Taylor, it is always unreasonable to apply law in the absence of fact. The state court’s deliberative process in these contexts is thus necessarily unreasonable.