JOHNSON v. WILLIAMS

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

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No. 11–465

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DEBORAH K. JOHNSON, ACTING WARDEN, PETITIONER v. TARA SHENEVA WILLIAMS

on writ of certiorari to the united states court of appeals for the ninth circuit

[February 20, 2013]

Justice Alito delivered the opinion of the Court.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) restricts the circumstances under which a federal habeas court may grant relief to a state prisoner whose claim has already been “adjudicated on the merits in State court.” 28 U. S. C. §2254(d). Specifically, if a claim has been “adjudicated on the merits in State court,” a federal habeas court may not grant relief unless “the adjudication of the claim—

“(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

“(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Ibid.

Because the requirements of §2254(d) are difficult to meet, it is important whether a federal claim was “adjudicated on the merits in State court,” and this case requires us to ascertain the meaning of the adjudication-on-the merits requirement. This issue arises when a defendant convicted in state court attempts to raise a federal claim, either on direct appeal or in a collateral state proceeding, and a state court rules against the defendant and issues an opinion that addresses some issues but does not expressly address the federal claim in question. If this defendant then raises the same claim in a federal habeas proceeding, should the federal court regard the claim as having been adjudicated on the merits by the state court and apply deference under §2254(d)? Or may the federal court assume that the state court simply overlooked the federal claim and proceed to adjudicate the claim de novo, the course taken by the Court of Appeals in the case at hand?

We believe that the answer to this question follows logically from our decision in Harrington v. Richter, 562 U. S. ___ (2011). In that case, we held that, when a state court issues an order that summarily rejects without discussion all the claims raised by a defendant, including a federal claim that the defendant subsequently presses in a federal habeas proceeding, the federal habeas court must presume (subject to rebuttal) that the federal claim was adjudicated on the merits. We see no reason why this same rule should not apply when the state court addresses some of the claims raised by a defendant but not a claim that is later raised in a federal habeas proceeding.

Applying this rule in the present case, we hold that the federal claim at issue here (a Sixth Amendment jury trial claim) must be presumed to have been adjudicated on the merits by the California courts, that this presumption was not adequately rebutted, that the restrictive standard of review set out in §2254(d)(2) consequently applies, and that under that standard respondent is not entitled to habeas relief. We therefore reverse the judgment of the Court of Appeals.

I A

In October 1993, respondent Tara Williams took two of her friends for a drive in southern California with the objective of committing a robbery. They stopped at a liquor store in Long Beach, and while Williams waited in the getaway car, her friends stole money from the cash register and fatally shot the store’s owner. Williams then drove one of her friends away, and the other fled on foot. Williams avoided capture for five years but was ultimately apprehended and charged with first-degree murder.

At trial, Williams admitted that she had served as the getaway driver but claimed that she did not know that her friends were going to rob the liquor store at the particular time in question. Instead, she contended that the three friends had agreed only that they would “case” the store and would possibly return later that evening to rob it. The State countered that, regardless of whether Williams knew precisely when and where the robbery was to take place, she had agreed to help commit a robbery and that this was sufficient to provide the predicate for felony murder under California law.

After deliberating for about three hours, the jury foreman sent the judge two notes. The first note asked the following question:

“ ‘Is it legally permissible for a juror to interpret . . . the jury instructions to mean that the conspiracy should involve a plan to commit a specific robbery rather than a general plan to commit robberies in the future?’ ” Tr. 1247.

The second note stated:

“I wish to inform you that we have one juror who . . . has expressed an intention to disregard the law . . . and . . . has expressed concern relative to the severity of the charge (first degree murder).” Id., at 1246.

The judge told the jury that the answer to the question in the first note was “no.” Id., at 1249. Then, over Williams’ objection, the judge briefly questioned the foreman outside the presence of the rest of the jury about the second note. The foreman said that he thought the judge’s answer to the first note might resolve the problem, and the judge instructed the jury to resume its deliberations.

The next morning, once again over Williams’ objection, the judge decided to inquire further about the foreman’s second note. On questioning by the judge and lawyers for both parties, the foreman testified that Juror 6 had brought up past instances of jury nullification. The foreman also expressed doubt about whether Juror 6 was willing to apply the felony-murder rule. The trial judge then ordered questioning of Juror 6, who first denied and then admitted bringing up instances of nullification. Juror 6 also testified that this was a serious case and that he would vote to convict only if he was “very convinced . . . beyond a reasonable doubt.” Id., at 1280. He later clarified that in his view “convinced beyond a reasonable doubt” and “very convinced beyond a reasonable doubt” meant the same thing. Id., at 1281. After taking testimony from the remaining jurors, who corroborated the foreman’s testimony to varying degrees, the trial judge dismissed Juror 6 for bias. With an alternate juror in place, the jury convicted Williams of first-degree murder.

B

On appeal to the California Court of Appeal, Williams argued, among other things, that the discharge of Juror 6 violated both the Sixth Amendment and the California Penal Code, which allows a California trial judge to dismiss a juror who “upon . . . good cause shown to the court is found to be unable to perform his or her duty.” Cal. Penal Code Ann. §1089 (West 2004). Although Williams’ brief challenged the questioning and dismissal of Juror 6 on both state and federal grounds, it did not clearly distinguish between these two lines of authority.

In a written opinion affirming Williams’ conviction, the California Court of Appeal devoted several pages to discussing the propriety of the trial judge’s decision to dismiss the juror. People v. Taylor, No. B137365 (Mar. 27, 2001). The court held that Juror 6 had been properly dismissed for bias and quoted this Court’s definition of “impartiality” in United States v. Wood, 299 U. S. 123 –146 (1936). But despite its extended discussion of Juror 6’s dismissal and the questioning that preceded it, the California Court of Appeal never expressly acknowledged that it was deciding a Sixth Amendment issue.

Williams petitioned the California Supreme Court for review, and while her petition was pending, that court decided People v. Cleveland, 25 Cal. 4th 466, 21 P. 3d 1225 (2001), which held that a trial court had abused its discretion by dismissing for failure to deliberate a juror who appeared to disagree with the rest of the jury about the evidence. The California Supreme Court granted Williams’ petition for review and remanded her case for further consideration in light of this intervening authority. People v. Taylor, No. S097387 (July 11, 2001).

On remand, the California Court of Appeal issued a revised opinion holding that the trial court had not abused its discretion by questioning the jury and dismissing Juror 6. Williams argued that Juror 6—like the holdout juror in Cleveland—was dismissed because he was uncooperative with other jurors who did not share his view of the evidence. But the California Court of Appeal disagreed, explaining that Williams’ argument “not only misstate[d] the evidence,” but also “ignore[d] the trial court’s explanation that it was discharging Juror No. 6 because he had shown himself to be biased, not because he was failing to deliberate or engaging in juror nullification.” People v. Taylor, No. B137365 (Jan. 18, 2002), App. to Pet. for Cert. 105a. As in its earlier opinion, the California Court of Appeal quoted our definition of juror bias in Wood, but the court did not expressly acknowledge that Williams had invoked a federal basis for her argument. Despite that omission, however, Williams did not seek rehearing or otherwise suggest that the court had overlooked her federal claim. Instead, she filed another petition for review in the California Supreme Court, but this time that court denied relief in a one-sentence order. People v. Taylor, No. S104661 (Apr. 10, 2002), App. to Pet. for Cert. 85a.

Williams sought but failed to obtain relief through state habeas proceedings, and she then filed a federal habeas petition under 28 U. S. C. §2254. The District Court applied AEDPA’s deferential standard of review for claims previously adjudicated on the merits and denied relief. Williams v. Mitchell, No. 03–2691 (CD Cal., May 30, 2007), App. to Pet. for Cert. 57a. In so holding, the District Court adopted a Magistrate Judge’s finding that the evidence “amply support[ed] the trial judge’s determination that good cause existed for the discharge of Juror 6.” Williams v. Mitchell, No. 03–2691 (CD Cal., Mar. 19, 2007), id., at 70a.

The Ninth Circuit reversed. Unlike the District Court, the Ninth Circuit declined to apply the deferential standard of review contained in §2254(d). The Ninth Circuit took this approach because it thought it “obvious” that the State Court of Appeal had “overlooked or disregarded” Williams’ Sixth Amendment claim. 1 Williams v. Cavazos, 646 F. 3d 626, 639 (2011). The Ninth Circuit reasoned that Cleveland, the State Supreme Court decision on which the State Court of Appeal had relied, “was not a constitutional decision,” 646 F. 3d, at 640, and the Ninth Circuit attributed no significance to the state court’s citation of our decision in Wood. Reviewing Williams’ Sixth Amendment claim de novo, the Ninth Circuit applied its own precedent and held that the questioning and dismissal of Juror 6 violated the Sixth Amendment. 646 F. 3d, at 646–647. We granted the warden’s petition for a writ of certiorari, 565 U. S. ___ (2012), in order to decide whether the Ninth Circuit erred by refusing to afford AEDPA deference to the California Court of Appeal’s decision.

II A

As noted above, AEDPA sharply limits the circumstances in which a federal court may issue a writ of habeas corpus to a state prisoner whose claim was “adjudicated on the merits in State court proceedings.” 28 U. S. C. §2254(d). In Richter, 562 U. S., at ___ (slip op., at 10), we held that §2254(d) “does not require a state court to give reasons before its decision can be deemed to have been ‘adjudicated on the merits.’ ” Rather, we explained, “[w]hen a federal claim has been presented 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 ___ (slip op., at 9).

Our reasoning in Richter points clearly to the answer to the question presented in the case at hand. Although Richter itself concerned a state-court order that did not address any of the defendant’s claims, we see no reason why the Richter presumption should not also apply when a state-court opinion addresses some but not all of a defendant’s claims. There would be a reason for drawing a distinction between these two situations if opinions issued by state appellate courts always separately addressed every single claim that is mentioned in a defendant’s papers. If there were such a uniform practice, then federal habeas courts could assume that any unaddressed federal claim was simply overlooked.

No such assumption is warranted, however, because it is not the uniform practice of busy state courts to discuss separately every single claim to which a defendant makes even a passing reference. On the contrary, there are several situations in which state courts frequently take a different course.

First, there are circumstances in which a line of state precedent is viewed as fully incorporating a related federal constitutional right. In California, for example, the state constitutional right to be present at trial “ ‘is generally coextensive with’ ” the protections of the Federal Constitution. People v. Butler, 46 Cal. 4th 847, 861, 209 P. 3d 596, 606 (2009); see also, e.g., Commonwealth v. Prunty, 462 Mass. 295, 305, n. 14, 968 N. E. 2d 361, 371, n. 14 (2012) (standard for racial discrimination in juror selection “ ‘is the same under the Federal Constitution and the [Massachusetts] Declaration of Rights’ ”); State v. Krause, 817 N. W. 2d 136, 144 (Minn. 2012) (“ ‘The due process protection provided under the Minnesota Constitution is identical to the due proces[s] guaranteed under the Constitution of the United States’ ”); State v. Engelhardt, 280 Kan. 113, 122, 119 P. 3d 1148, 1158 (2005) (observing that a Kansas statute is “analytically and functionally identical to the requirements under the Confrontation Clause and the Due Process Clause of the federal Constitution”). In this situation, a state appellate court may regard its discussion of the state precedent as sufficient to cover a claim based on the related federal right.

Second, a state court may not regard a fleeting reference to a provision of the Federal Constitution or federal precedent as sufficient to raise a separate federal claim. Federal courts of appeals refuse to take cognizance of arguments that are made in passing without proper development. See, e.g., United States v. Cloud, 680 F. 3d 396, 409, n. 7 (CA4 2012); United States v. Mitchell, 502 F. 3d 931, 953, n. 2 (CA9 2007); United States v. Charles, 469 F. 3d 402, 408 (CA5 2006); Reynolds v. Wagner, 128 F. 3d 166, 178 (CA3 1997); Carducci v. Regan, 714 F. 2d 171, 177 (CADC 1983). State appellate courts are entitled to follow the same practice.

Third, there are instances in which a state court may simply regard a claim as too insubstantial to merit discussion. Indeed, the California Court of Appeal has expressly stated that it has no obligation to address claims that lack arguable merit. See People v. Rojas, 118 Cal. App. 3d 278, 290, 173 Cal. Rptr. 91, 93 (1981). That court has explained: “In an era in which there is concern that the quality of justice is being diminished by appellate backlog with its attendant delay, which in turn contributes to a lack of finality of judgment, it behooves us as an appellate court to ‘get to the heart’ of cases presented and dispose of them expeditiously.” Ibid. See also People v. Burke, 18 Cal. App. 72, 79, 122 P. 435, 439 (1912) (“The author of an opinion . . . must follow his own judgment as to the degree of elaboration to be accorded to the treatment of any proposition and as to the questions which are worthy of notice at all” (emphasis added)). While it is preferable for an appellate court in a criminal case to list all of the arguments that the court recognizes as having been properly presented, see R. Aldisert, Opinion Writing 95–96 (3d ed. 2012), federal courts have no authority to impose mandatory opinion-writing standards on state courts, see Coleman v. Thompson, 501 U. S. 722, 739 (1991) (“[W]e have no power to tell state courts how they must write their opinions”). The caseloads shouldered by many state appellate courts are very heavy, 2 and the opinions issued by these courts must be read with that factor in mind.

In sum, because it is by no means uncommon for a state court to fail to address separately a federal claim that the court has not simply overlooked, we see no sound reason for failing to apply the Richter presumption in cases like the one now before us. When a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits—but that presumption can in some limited circumstances be rebutted.

B

Not satisfied with a strong but rebuttable presumption, petitioner urges us to make the presumption irrebuttable. Specifically, petitioner contends that a state court must be regarded as having adjudicated a federal claim on the merits if the state court addressed “the substance of [an] asserted trial error.” Brief for Petitioner 27. Suppose, for example, that a defendant claimed in state court that something that occurred at trial violated both a provision of the Federal Constitution and a related provision of state law, and suppose further that the state court, in denying relief, made no reference to federal law. According to petitioner’s argument, a federal habeas court would be required to proceed on the assumption that the federal claim was adjudicated on the merits.

This argument goes too far. To be sure, if the state-law rule subsumes the federal standard—that is, if it is at least as protective as the federal standard—then the federal claim may be regarded as having been adjudicated on the merits. See Early v. Packer, 537 U. S. 3, 8 (2002) (per curiam). But what if, for example, in at least some circumstances the state standard is less protective? Or what if the state standard is quite different from the federal standard, and the defendant’s papers made no effort to develop the basis for the federal claim? What if a provision of the Federal Constitution or a federal precedent was simply mentioned in passing in a footnote or was buried in a string cite? In such circumstances, the presumption that the federal claim was adjudicated on the merits may be rebutted—either by the habeas petitioner (for the purpose of showing that the claim should be considered by the federal court de novo) or by the State (for the purpose of showing that the federal claim should be regarded as procedurally defaulted). See Coleman, supra, at 739 (rebuttable presumption of no independent and adequate state ground applies so long as “it fairly appears that a state court judgment rested primarily on federal law or was interwoven with federal law”). Thus, while the Richter presumption is a strong one that may be rebutted only in unusual circumstances, it is not irrebuttable. 3 “Per se rules should not be applied . . . in situations where the generalization is incorrect as an empirical matter,” Coleman, 501 U. S., at 737, and an irrebuttable presumption that state courts never overlook federal claims would occasionally miss the mark.

The language of 28 U. S. C. §2254(d) makes it clear that this provision applies only when a federal claim was “adjudicated on the merits in State court.” A judgment is normally said to have been rendered “on the merits” only if it was “delivered after the court . . . heard and evaluated the evidence and the parties’ substantive arguments.” Black’s Law Dictionary 1199 (9th ed. 2009) (emphasis added). And as used in this context, the word “merits” is defined as “[t]he intrinsic rights and wrongs of a case as determined by matters of substance, in distinction from matters of form.” Webster’s New International Dictionary 1540 (2d ed. 1954) (emphasis added); see also, e.g., 9 Oxford English Dictionary 634 (2d ed. 1989) (“the intrinsic ‘rights and wrongs’ of the matter, in contradistinction to extraneous points such as the competence of the tribunal or the like” (emphasis added)); Random House Dictionary of the English Language 897 (1967) (“the intrinsic right and wrong of a matter, as a law case, unobscured by procedural details, technicalities, personal feelings, etc.” (emphasis added)). If a federal claim is rejected as a result of sheer inadvertence, it has not been evaluated based on the intrinsic right and wrong of the matter. Justice Scalia is surely correct that such claims have been adjudicated and present federal questions we may review, post, at 3–4, but it does not follow that they have been adjudicated “on the merits.” By having us nevertheless apply AEDPA’s deferential standard of review in such cases, petitioner’s argument would improperly excise §2254(d)’s on-the-merits requirement.

Nor does petitioner’s preferred approach follow inexorably from AEDPA’s deferential architecture. Even while leaving “primary responsibility” for adjudicating federal claims to the States, Woodford v. Visciotti, 537 U. S. 19, 27 (2002) (per curiam), AEDPA permits de novo review in those rare cases when a state court decides a federal claim in a way that is “contrary to” clearly established Supreme Court precedent, see Panetti v. Quarterman, 551 U. S. 930, 953 (2007) . When the evidence leads very clearly to the conclusion that a federal claim was inadvertently overlooked in state court, §2254(d) entitles the prisoner to an unencumbered opportunity to make his case before a federal judge.

We are not persuaded that applying a rebuttable presumption in this context will be unduly burdensome for federal courts. Before Richter, every Court of Appeals to consider the issue allowed a prisoner to argue that a state court had overlooked his federal claim. 4 That approach did not prompt an unmanageable flood of litigation, and we see no reason to fear that it will do so now.

III

Applying the presumption of merits adjudication to the facts of this case, we hold that the Ninth Circuit erred by finding that the California Court of Appeal overlooked Williams’ Sixth Amendment claim. Several facts make this conclusion inescapable.

Most important is the state court’s discussion of Cleveland, 25 Cal. 4th 466, 21 P. 3d 1225, a California Supreme Court decision on which the Court of Appeal solicited briefing. Cleveland held that a California trial court, “if put on notice that a juror is not participating in deliberations,” may “conduct ‘whatever inquiry is reasonably necessary to determine’ whether such grounds exist and . . . discharge the juror if it appears as a ‘demonstrable reality’ that the juror is unable or unwilling to deliberate.” Id., at 484, 21 P. 3d, at 1237 (citations omitted). The Cleveland court acknowledged “[t]he need to protect the sanctity of jury deliberations,” id., at 476, 21 P. 3d, at 1231, and included a lengthy discussion of three Federal Court of Appeals cases that it said had “considered these issues in depth,” id., at 480–484, 21 P. 3d, at 1234–1237. Those three cases—United States v. Symington, 195 F. 3d 1080 (CA9 1999), United States v. Thomas, 116 F. 3d 606 (CA2 1997), and United States v. Brown, 823 F. 2d 591 (CADC 1987)—concern the discharge of holdout jurors in federal court. Each case discusses the Sixth Amendment right to a jury trial and concludes that a trial court should not inquire further if it appears that there is “ ‘any reasonable possibility that the impetus for a juror’s dismissal stems from the juror’s views on the merits of the case.’ ” Cleveland, supra, at 484, 21 P. 3d, at 1237 (quoting Symington, supra, at 1087); see also Thomas, supra, at 621–622; Brown, supra, at 596. Though the Cleveland court found much to praise in these decisions, it expressly declined to follow them on this point. 25 Cal. 4th, at 483–484, 21 P. 3d, at 1236–1237.

Cleveland did not expressly purport to decide a federal constitutional question, but its discussion of Symington, Thomas, and Brown shows that the California Supreme Court understood itself to be deciding a question with federal constitutional dimensions. See 25 Cal. 4th, at 487, 21 P. 3d, at 1239 (Werdegar, J., concurring) (emphasizing importance of careful appellate review in juror discharge cases in light of the “constitutional dimension to the problem”). Indeed, it is difficult to imagine the California Supreme Court announcing an interpretation of Cal. Penal Code Ann. §1089 that it believed to be less protective than the Sixth Amendment, as any such interpretation would provide no guidance to state trial judges bound to follow both state and federal law.

The Ninth Circuit’s conclusion to the contrary rested on the fact that Cleveland refused to follow Symington, Brown, and Thomas. 646 F. 3d, at 640. But the views of the federal courts of appeals do not bind the California Supreme Court when it decides a federal constitutional question, and disagreeing with the lower federal courts is not the same as ignoring federal law. The Ninth Circuit’s apparent assumption that the California Supreme Court could not refuse to follow federal court of appeals precedent without disregarding the Federal Constitution would undo §2254(d)’s “contrary to” provision, which requires deference unless a state court fails to follow Supreme Court precedent. 28 U. S. C. §2254(d)(1).

Regardless of whether a California court would consider Williams’ §1089 and Sixth Amendment claims to be perfectly coextensive, the fact that these claims are so similar makes it unlikely that the California Court of Appeal decided one while overlooking the other. Indeed, it is difficult to imagine any panel of appellate judges reading Cleveland and passing on the propriety of dismissing a holdout juror under §1089 without realizing that such situations also bear on the federal constitutional right to a fair trial. The California Court of Appeal’s quotation of our definition of “impartiality” from Wood, 299 U. S., at 145–146, points to the same conclusion, confirming that the state court was well aware that the questioning and dismissal of Juror 6 implicated both state and federal law.

Williams’ litigation strategy supports the same result. Throughout her state proceedings, Williams treated her state and federal claims as interchangeable, and it is hardly surprising that the state courts did so as well. See Brief for Appellant in No. B137365 (Cal. App.), App. 29 (citing §1089 precedent and concluding that Williams “was accordingly denied her Sixth Amendment right to a unanimous jury”). After the California Court of Appeal rendered its decision, Williams neither petitioned that court for rehearing nor argued in the subsequent state and federal proceedings that the state court had failed to adjudicate her Sixth Amendment claim on the merits. The possibility that the California Court of Appeal had simply overlooked Williams’ Sixth Amendment claim apparently did not occur to anyone until that issue was raised by two judges during the oral argument in the Ninth Circuit. See 646 F. 3d, at 638, n. 7. Williams presumably knows her case better than anyone else, and the fact that she does not appear to have thought that there was an oversight makes such a mistake most improbable.

We think it exceedingly unlikely that the California Court of Appeal overlooked Williams’ federal claim, and the Ninth Circuit’s judgment to the contrary is reversed. The case is remanded for further proceedings consistent with this opinion.

It is so ordered.

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1  Consistent with our decision in Ylst v. Nunnemaker, 501 U. S. 797, 806 (1991) , the Ninth Circuit “look[ed] through” the California Supreme Court’s summary denial of Williams’ petition for review and examined the California Court of Appeal’s opinion, the last reasoned state-court decision to address Juror 6’s dismissal. Williams v. Cavazos, 646 F. 3d 626, 635 (2011).

2  See, e.g., Judicial Council of California, 2011 Court Statistics Report, Statewide Caseload Trends, 2000–2001 Through 2009–2010, p. 15 (observing that in fiscal year 2009–2010, the 105-judge California Court of Appeal produced opinions in 10,270 cases), online at http://www.courts.ca.gov/documents/2011CourtStatisticsReport.pdf (all Inter-net materials as visited Jan. 24, 2013, and available in Clerk of Court’s case file); In re Certification of Need for Additional Judges, 2012 WL 6619382 (Fla., Dec. 20, 2012) (in fiscal year 2011–2012, Florida’s Second District Court of Appeal received appeals in 6,834 cases); Supreme Court of Ohio, 2011 Ohio Courts Statistical Report, p. 14 (observing that in 2011 the State’s 69 intermediate appellatejudges rendered decisions in 7,129 cases), online at http://www.supremecourt.ohio.gov / publications / annrep / IOCS / 2011OCS.pdf;Court Statistics Project, Examining the Work of State Courts: An Analysis of 2010 State Court Caseloads 40 (2012) (noting that in 2010 state appellate courts received appeals in over 270,000 cases).

3  For example, when a defendant does so little to raise his claim that he fails to “ ‘fairly present’ ” it in “each appropriate state court,” Baldwin v. Reese, 541 U. S. 27, 29 (2004) , the Richter presumption is fully rebutted.

4  See, e.g., Lyell v. Renico, 470 F. 3d 1177, 1181–1182 (CA6 2006); Billings v. Polk, 441 F. 3d 238, 252 (CA4 2006); Espy v. Massac, 443 F. 3d 1362, 1364–1365, and n. 2 (CA11 2006); Brown v. Luebbers, 371 F. 3d 458, 460–461 (CA8 2004) (en banc); Chadwick v. Janecka, 312 F. 3d 597, 606 (CA3 2002); Norde v. Keane, 294 F. 3d 401, 410 (CA2 2002); Duckett v. Mullin, 306 F. 3d 982, 990 (CA10 2002); Fortini v. Murphy, 257 F. 3d 39, 47 (CA1 2001).

SUPREME COURT OF THE UNITED STATES

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No. 11–465

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DEBORAH K. JOHNSON, ACTING WARDEN, PETITIONER v. TARA SHENEVA WILLIAMS

on writ of certiorari to the united states court of appeals for the ninth circuit

[February 20, 2013]

Justice Scalia, concurring in the judgment.

I agree with the Court’s rejection of the proposition that a judgment denying a federal claim is irrebuttably presumed to have been “adjudicated on the merits” within the meaning of 28 U. S. C. §2254(d). I disagree, however, that one of the grounds on which the rebuttal may rely is that the federal claim was “inadvertently overlooked.” Ante, at 13. In my view the rebuttal must consist of a showing, based on the explicit text of the court’s order, or upon standard practice and understanding in the jurisdiction with regard to the meaning of an ambiguous text, that the judgment did not purport to decide the federal question. “Decided after due consideration” is not, and has never been, the meaning of the legal term of art “decided on the merits,” and giving it that meaning burdens our lower courts with an unusual subjective inquiry that demeans state courts and will be a fertile source of litigation and delay.

In the Court’s view, a habeas petitioner receives de novo review if he can prove that the state court, although addressing his state claim, overlooked his federal claim. A nonexhaustive list of factors, we are told, may bear on the analysis: state-court opinion-writing practices, ante, at 8, 9; state-law precedents and whether and how they incorporate federal law, ante, at 8; substantiality of the federal claim, ante, at 9; citations to federal cases in state-court opinions (or citations to state cases that contain citations to federal cases), ante, at 13–14; the degree of similarity between the federal and state claim, ante, at 15; a petitioner’s “litigation strategy,” ante, at 15–16; and other clues that may possibly illuminate the inner thought processes of a state-court judge. Only after conducting its own detective work does the Court conclude that the federal claim was not overlooked in this case.

This complex exercise is unnecessary. A judgment that denies relief necessarily denies—and thus adjudicates—all the claims a petitioner has raised. See 1 H. Black, Law of Judgments §1, p. 2 (2d ed. 1902) (“[T]he judgment necessarily affirms, or else denies, that [an alleged] duty or . . . liability rests upon the person against whom the aid of the law is invoked”); id., §24, at 37. The judgment itself gives conclusive expression that the claims have been considered and rejected—whatever the individual judge might have been pondering (or not pondering). At common law the formal language traditionally preceding the announcement of a court’s judgment was “consideratum est per curiam” (“It is considered by the court”). See Black’s Law Dictionary 349–350 (9th ed. 2009); 1 Bouvier’s Law Dictionary 619 (8th ed. 1914).

The Court maintains that “[i]f a federal claim is rejected as a result of sheer inadvertence, it has not been evaluated based on the intrinsic right and wrong of the matter,” ante, at 12. Perhaps not, but it nonetheless may have been rejected “on the merits.” That phrase does not suggest a line between a considered rejection of a claim and an unconsidered, inadequately considered, or inadvertent rejection. Rather, it refers to a “determination that there exist or do not exist grounds entitling a petitioner” to relief under his claim, as contrasted with a “denial for such reasons as failure to exhaust, procedural default, or statute-of-limitations bar.” Gonzalez v. Crosby, 545 U. S. 524 , n. 4 (2005). An “adjudication on the merits” is “best understood by stating what it is not: it is not a resolution of a claim on procedural grounds.” Muth v. Frank, 412 F. 3d 808, 815 (CA7 2005). And, as we have affirmed and reaffirmed recently, where a claim has been denied, but it is unclear from the record whether the denial was on the merits or on another basis, we presume the former. Harrington v. Richter, 562 U. S. ___, ___ (2011) (slip op., at 9–10) (citing Harris v. Reed, 489 U. S. 255, 265 (1989) ); see also Coleman v. Thompson, 501 U. S. 722 –733 (1991).

We apply a presumption of merits determination in that sense not just with respect to §2254(d) but for other purposes as well. We have long applied it, for example, in determining whether a claim is barred by res judicata:

“Ordinarily, such a question is answered by a mere inspection of the decree—the presumption being that a dismissal in equity, without qualifying words, is a final decision on the merits. That presumption of finality . . . disappears whenever the record shows that the court did not pass upon the merits but dismissed the bill because of a want of jurisdiction, for want of parties, because the suit was brought prematurely, because the plaintiff had a right to file a subsequent bill on the same subject-matter, or on any other ground not going to the merits.” Swift v. McPherson, 232 U. S. 51 –56 (1914) (emphasis added); see also Hubbell v. United States, 171 U. S. 203, 207 (1898) ; Durant v. Essex Co., 7 Wall. 107, 109 (1868).

We also apply a presumption of merits determination in the sense I have described for purposes of 28 U. S. C. §1257, which imposes a federal-question requirement as a condition of this Court’s appellate jurisdiction. Michigan v. Long, 463 U. S. 1032 –1041 (1983). Indeed, the application of the presumption in direct-review cases was the genesis of the presumption in federal habeas cases. The condition for federal habeas—that the federal question must have been addressed on the merits by the state courts—did not originate with the enactment of the Antiterrorism and Effective Death Penalty Act in 1996, but was established as early as 1977 in Wainwright v. Sykes, 433 U. S. 72 –87. We described the assessment of whether that requirement was met as presenting “the same problem of ambiguity that this Court resolved in Michigan v. Long.” Harris, 489 U. S., at 262. And indeed, we described the habeas requirement as an application of the “adequate and independent state ground doctrine,” which inquires whether a “finding of procedural default will bar federal habeas review.” Ibid. It is of course unthinkable that a state-court resolution of a federal question will escape our review under §1257 if it is inadvertent rather than intentional.

Given this background, there is no reason to believe that AEDPA established a new and peculiar regime in which the federal habeas court must make one assessment of whether the federal question has been decided “on the merits” for purposes of determining its authority to review the question (a Long assessment which counts, as §1257 cases count, inadvertent resolution of a federal question); and then must proceed to a different assessment of “on the merits” (one that does not count inadvertent resolution) for purposes of determining whether deference to the state-court judgment is required.

But, it will be argued, how can a court “defer” to a state-court determination that was in fact never made? Must not one first be sure it exists before one can accord it respect? The answer is no; according respect only to determinations that have for-sure been made is demonstrably not the scheme that AEDPA envisions. Federal habeas courts defer to state determinations that may in fact never have been made whenever they find a summary, unexplained rejection of a federal claim to be sustainable (e.g., not contrary to clearly established federal law as determined by this Court). The validating basis that the federal habeas court posits need not have been the one that the state court actually relied upon; the state court may well have applied a theory that was flat-out wrong, and may not have made the subsidiary determinations (including factual assessments) necessary to support the correct theory. That does not matter. For what is accorded deference is not the state court’s reasoning but the state court’s judgment, which is presumed to be supported by whatever valid support was available. See Harrington, supra, at ___ (slip op., at 12) (“Under §2254(d) a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court’s decision”). Indeed, the deference with regard to the basis of decision is much more “blind” than the deference I assert is necessary in the present case. I demand a state-court statement (contained in the unqualified terms of its judgment) that it has rejected the federal claim; I simply refuse to question the veracity of that statement. By contrast, no statement is ever even required that the state court relied upon the theory of federal law that the habeas court finds validating.

I doubt that the Court is prepared to abide by its novel interpretation of “on the merits” for purposes of §2254(d). Imagine that the state court formulated its judgment as follows: “All claims raised by the defendant have been considered and denied.” I cannot believe that the Court would require federal courts to test the veracity of that statement. Yet, as we have described, that is precisely what an (unadorned) judgment denying relief already conveys. Although the Court acknowledges that “ ‘[w]e have no power to tell state courts how they must write their opinions,’ ” ante, at 9, its analysis would turn solely on how the order of judgment is styled.

Resolution of this case is direct: Respondent’s claim was “adjudicated on the merits,” because the state court rendered a judgment rejecting all her claims, and the judgment gave no indication (such as a statement that it was “without prejudice”) that it was based on a procedural or other nonmerits ground.

The Court’s novel resolution of the “on the merits” question produces a clear enough answer in this case. The weight of the evidence demonstrated that it was “exceedingly unlikely” that the state court overlooked the federal claim. Ante, at 16. But such ready resolution will not be commonplace. Consider another case, where the federal and state claims are not related, where there is no relevant state precedent referring to federal law, where state law might be interpreted as less defendant-friendly than the federal standard, or where a confluence of such factors exists. The answer to whether the federal claim has been “evaluated based on the intrinsic right and wrong of the matter” is anybody’s guess. One thing, however, is certain: The Court’s case-by-case approach will guarantee protracted litigation over whether a state-court judge was aware of a claim on the day he rejected it.

The Court tells us not to worry about a flood of litigation, because the Courts of Appeals have previously allowed arguments from petitioners that the state courts overlooked their federal claims. Ante, at 13, and n. 4 (citing cases). But many of those cases applied a much simpler (and even less justifiable) test than the one adopted today: if the federal claim was not addressed in the opinion, then it was not adjudicated on the merits. See, e.g., Lyell v. Renico, 470 F. 3d 1177, 1181–1182 (CA6 2006); Fortini v. Murphy, 257 F. 3d 39, 47 (CA1 2001). And even those courts that attempted to “divin[e] the thought processes of” the judge limited their inquiry to “what a state court has said.” Brown v. Luebbers, 371 F. 3d 458, 461 (CA8 2004) (emphasis added); see also, e.g., Chadwick v. Janecka, 312 F. 3d 597, 606 (CA3 2002). By contrast, the Court today asks whether a judge thought about the merits of an unaddressed claim, and leaves on the table any evidence relevant to that inquiry.

This newly-sponsored enterprise of probing the judicial mind is inappropriately intrusive upon state-court processes. Are federal habeas courts now to consider evidence relevant to the internal deliberations of the state judiciary? Can a petitioner introduce testimony showing that state-court judges—because of time constraints, heavy caseloads, or other reasons—fail to read the briefs but leave that to their assistants, whose recommendations they rarely reject? Or testimony showing that, typically, only one judge on the state-court appellate panel reads the briefs and considers all the claims, and the others simply join the drafted order? Has there been an “adjudication on the merits” then? Future litigation will supply the answers.

For these reasons, I do not join the opinion of the Court

and concur only in the judgment.

Print this transcript Transcript: 

ORAL ARGUMENT OF STEPHANIE BRENAN ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We'll hear argument first this morning in Case 11-465, Johnson v. Williams.

Ms. Brenan.

Stephanie Brenan: Mr. Chief Justice, and may it please the Court:

A fairly presented claim has been adjudicated on the merits when a state court issues a decision denying relief unless it has made a plain statement to the contrary.

And this is especially true where the state court has grappled with the substance of the alleged error.

And this rule is correct for three reasons:

First, state courts discharge their duties.

They are sworn to uphold the Constitution.

Therefore, they must adjudicate claims that -- that allege constitutional violations.

So when a state court issues a decision denying relief, it must necessarily have considered and rejected all of the claims.

Justice Sonia Sotomayor: What happens when there is a challenge to the admission of evidence on a state law ground on a Confrontation Clause ground, and all the state court does is grapple with the evidentiary rule, but it's self evident that the Confrontation Clause is based on a different theory?

Are we to assume, in the light of that kind of decision, that the court actually grappled with the Confrontation Clause?

Stephanie Brenan: Your Honor, we would assume that there the state court, through its denial of relief, did adjudicate the presented Confrontation Clause claim.

And that would be because -- for a number of reasons.

First, the presumption of regularity that judicial officers do do their job, and it can only be rebutted by clear evidence.

Justice Sonia Sotomayor: Am I to make that assumption when, before our line of cases in this area, state courts generally had held that if hearsay was admissible under their evidentiary rules, that that was the end of their Confrontation Clause challenge?

Is a Federal court supposed to continue with that presumption in light of an undisputed state's statement that their rules are consonant with the Confrontation Clause.

Stephanie Brenan: In that situation, if the state court rule was consonant with the Confrontation Clause, we would have certainly an adjudication of the Confrontation Clause.

Justice Sonia Sotomayor: Well, let's assume it's not after our -- we render our decision.

Stephanie Brenan: And if it were -- if it were different, we would still hold that in that situation, as this Court -- in relying on Richter, in that situation it would be more of a summary denial on the confrontation analysis.

Justice Sonia Sotomayor: If one--

Justice Anthony Kennedy: Well, we can continue and probably should talk about this broad theory that you want us to adopt.

Really, in this case, the court of appeals in -- in the state system cited Nesler, and Nesler in turn cited, at page 104 of the petition appendix, a Supreme Court case you don't even -- you say citation, you don't even give -- but it -- it's -- it's the Supreme Court case, United States v. Wood, written by Chief Justice Charles Evans Hughes.

And it seems to me it very clearly ties its state analysis to the Federal Constitution and a Sixth Amendment discussion in Wood.

So it seems to me that you're -- you have a very strong argument that they did adjudicate the Federal claim anyway.

I know you want us to maybe reach the bigger issue, but -- and your brief almost downplays it -- but it seems to me pretty clear that you have the argument, that you don't strongly make, although you don't, by any means, abandon it, that -- that here the state law was tied to the Federal standard, and the Federal standard was the basis for the entire jurisprudence.

Stephanie Brenan: Yes, Your Honor, we agree that in our situation it just so happened to be that the state standard also encompassed this Court's Sixth Amendment jurisprudence because it was citing U.S. v. Wood, and it was citing Smith v. Phillips among the -- the Sixth Amendment cases.

In our case, it just so happens that it does.

But we posit also that our case shows why this is illustrative as to why this Court should adopt the broader rule that, in situations where a state court has denied relief or a claim has been fairly presented, that this Court and all Federal courts should assume that the state courts did their job by adjudicating claims--

Justice Sonia Sotomayor: --Irrebuttably?

Stephanie Brenan: --Your Honor, in -- we have suggested that -- that it can be rebutted by a plain statement, if the state court says that it is not reaching it or, more particularly, if a state court imposes a procedural bar.

Justice Sonia Sotomayor: I see exceptions to that already.

There are cases where the state court reaches one prong of the Strickland standard, has no need to go to the second.

Stephanie Brenan: Yes--

Justice Sonia Sotomayor: So you really can't say in that situation that you can assume they reached the second, can you?

Stephanie Brenan: --Well, Your Honor, I posit that those Strickland cases are different.

And they are different because in all of those cases of Wiggins v. Smith and Rompilla, that there the courts -- what the State court did was follow exactly what this Court has said of how a Strickland claim may be answered entirely by only addressing the one prong of Strickland.

And so there they're doing exactly adjudicating everything through the analysis of one.

Additionally, in those cases, by doing so, the courts are not in any way suggesting that the State courts failed to do something.

Justice Anthony Kennedy: Well, suppose that the--

Justice Ruth Bader Ginsburg: Ms. Brenan, we are straying pretty far from this case.

And correct me if I'm wrong, but, as I understand it, the argument was made under State law, and then Williams said there was an abuse of discretion under State law and therefore the Sixth Amendment was violated.

So there really isn't any independent -- Williams hasn't stated any independent Sixth Amendment right.

It's State law was violated and therefore the Constitution was violated.

So it seems to me if we just look at the position that Williams was taking, that these two, the State and the Federal claim, are tied -- tied together.

And we don't -- to go beyond this case and imagine some other case that might come before us some day would not be wise.

Stephanie Brenan: Yes, Your Honor, I completely agree with the view that here Williams did present a completely dependent Federal claim; and, therefore, the State's analysis -- the State court's analysis would have fully adjudicated that.

However, we suggest that this case does illustrate why that broader rule is important.

And it's important because, otherwise, other Federal courts may not view it as this Court did, seeing it as a dependent claim--

Chief Justice John G. Roberts: The court of appeals, whose decision we're reviewing, understood the Respondent to present a separate State claim and a separate Federal claim, correct?

Stephanie Brenan: --Exactly, Your Honor.

Chief Justice John G. Roberts: That's the predicate to the whole question we have before us, right?

Stephanie Brenan: Exactly, Your Honor.

So--

Justice Samuel Alito: Let me give you this hypothetical.

The brief filed with an intermediate State court of appeals contains 25 pages of argument on a Federal constitutional claim.

Let's say it's a Brady claim.

And then it also has two other claims, two other arguments.

They are State law claims, and each one is dealt with in two pages.

And then the State court, intermediate court of appeals, issues an opinion that addresses only the two State law claims and says nothing about the Federal constitutional claim.

You would say there that -- that it's conclusively presumed that they adjudicated the Federal constitutional claim?

Stephanie Brenan: --Yes, Your Honor, in that situation we would.

One, because of the presumption of regularity; two, because of what this Court has said in Richter, where we could view it as a summary denial; and, third, what underlies that is that if it's not written in the opinion, that it has been ignored.

But that's not what this Court said in Castillo, where it said, if a court chooses to ignore in its opinion, which should be read as in its opinion writing, means that that claim has been impliedly rejected.

So, therefore, just because a State court chooses not to write about it in its opinion does not mean that it didn't consider and reject that claim.

Justice Samuel Alito: Why is it necessary to go so far as to require a plain statement?

Why wouldn't you protect the same interests if you had a rule that said that there is a presumption that they have adjudicated the claim on the merits, but that it can be rebutted if there is a strong inference that they overlooked it or a very strong inference that they overlooked it.

Then you wouldn't have situations like the one that Justice Sotomayor posed in her hypothetical or the one that I just mentioned.

Stephanie Brenan: Sure, Your Honor, but the reason why there should be a plain statement is because it's long been held that in order to rebut that presumption of regularity, you need clear evidence.

And, really, the only clear evidence that one could have would be a plain statement.

And this Court reinforced that when it said in Richter, it talked about an indication or other State procedural bars, and it cited Harris v. Reed.

And Harris v. Reed is a case that talked about plain statements.

Justice Antonin Scalia: Well, I assume that in -- in many cases, especially capital cases, one could argue for years over whether -- whether, in fact, there was enough indication that the court did not consider it or not, right?

And every year is a reduction of sentence, so to speak.

Stephanie Brenan: Exactly, Your Honor.

And that's -- that's why having a broader rule with this presumption--

Justice Anthony Kennedy: --Well, I suppose -- I suppose the broader rule, if you took $28.52 out of the State's judicial budget and bought them all a stamp which just says, we have considered and rejected all constitutional claims, then there would be no problem?

Stephanie Brenan: --Your Honor, they really do that when they say “ affirmed ” at the end of the decision.

It really adds nothing.

If it were a stamp, it would be merely reflexive, and therefore would in the end give you no indication whether an argument had been considered or not.

Chief Justice John G. Roberts: Any idea based on your experience how many separate claims are typically raised in a capital case of this sort?

Stephanie Brenan: If -- this was not a capital case--

Chief Justice John G. Roberts: I'm sorry.

Stephanie Brenan: --but an LWOP case.

However, in a capital case there can be hundreds.

And we -- or hundreds of pages of documents -- or hundreds of pages in an appellant's opening brief, and, therefore, if one were to slip in, in a phrase an apparent claim, and that the State court happens to--

Justice Antonin Scalia: There would be a lot of good debate over whether it was presented clearly enough, is presenting it in two sentences enough to require the court to answer it.

I can see a whole -- you know, a whole train of litigation on this wonderful subject, a whole new area of law.

Has the -- has the State supreme court overlooked something that was clearly enough presented, and is there enough indication that the State court has overlooked it?

I mean -- that's the problem.

Justice Sonia Sotomayor: All of the circuit courts basically have a rule close to the one announced by Justice Alito, don't they?

Stephanie Brenan: --Your Honor, if they happen not to mention one particular claim?

Justice Sonia Sotomayor: All of them have essentially a presumption that's rebutted by some form of evidence, except for perhaps the Eleventh and this circuit that have a clear, almost irrebuttable presumption.

I'm sorry.

Not the Ninth, but the Eleventh.

Stephanie Brenan: The Eleventh Circuit and, I believe, the Sixth Circuit as well.

Justice Sonia Sotomayor: But it's not as absolute as the Eleventh.

Stephanie Brenan: True that the Eleventh Circuit has a broader rule.

And we believe--

Justice Sonia Sotomayor: I have a -- you know, I mean, for every rule you're going to find an exception that abuses it.

It's the nature of human nature.

Do you know what the total number of habeas petitions there are and what the percentage that are actually granted?

Stephanie Brenan: --I don't have that figure off the top of my head, Your Honor.

Justice Sonia Sotomayor: Would you be willing to accept that it's -- in relationship to the total granted, it's very, very small?

Stephanie Brenan: Yes, I believe that is true, that there is a small number of granting of petitions, yes.

Justice Sonia Sotomayor: So whatever the abuse of the system is, it hasn't halted justice.

Stephanie Brenan: Well, Your Honor, the thing is that -- and I think that Justice Scalia has adverted to this -- is that if we were to require only an indication, it would create a situation where there would be all this litigation.

And that's why this Court, when it does -- has accepted conclusive presumptions in other cases, for example in Coleman v. Thompson, talked about we will accept these conclusive presumptions because they work in almost all of the cases, and we will accept the small number of errors in exchange for the reduction in workload.

So--

Justice Stephen G. Breyer: Well, why can't they just do what we used to do?

Many district judges do this and -- because there are sometimes thousands of petitions of different kinds.

A lot go to the staff attorneys that look them over and flag the arguments, and you put at the end, just to be on the safe side: Any other arguments that are made are rejected.

All right.

Now, that serves one purpose.

A human being has a hard time writing that unless he's thinking: I've looked this over pretty carefully.

And if it's a staff attorney preparing a draft, the staff attorney doesn't want to -- doesn't want to write those words unless he or she has really looked with some care.

And so it serves a purpose.

It means they don't do it just as a form.

They could turn it into a form, but they shouldn't.

And so -- let them write that, and therefore if we get nothing then you put into play these presumptions, et cetera.

Stephanie Brenan: --Justice Breyer, I would disagree with -- with that proposal because it is in the end just -- could become reflexive--

Justice Stephen G. Breyer: Well, anything.

Judges can not do their job.

But -- but when you write something like the word “ denied ”, which is all most district judges write in respect to many motions, they read the motion, they think about it, that's their job.

So -- so, similarly, a staff attorney or a judge who is going to have to write certain words will want to do his job or her job, and they will do it.

So I'm just suggesting that it won't -- that isn't a big deal.

Now, this case, they didn't write that for some reason.

Many do.

Justice Antonin Scalia: Doesn't the -- doesn't the word denied at the end of the order say the same thing?

We've considered--

Stephanie Brenan: --No.

Justice Antonin Scalia: --all of the points made, and we have denied them.

And wouldn't it be the case that if you require such a statement, but you have a situation where a Federal question occupies 90 percent of the brief, and the court only addresses explicitly the state things, the state claims, and then at the very end says, we have considered all the other claims, presumably including the 90 percent Federal claims that are not addressed, would we be out of the woods, or would you be here again arguing the same problem?

Stephanie Brenan: I think we could be arguing the same problem.

I think, as Your Honor's noted, that the inclusion of the word denied, or, if you're affirming a conviction in a direct appeal, the word affirmed covers that.

It says exactly, we have considered all those other claims.

Justice Elena Kagan: Ms. Brenan, can I ask you what you mean by a plain statement?

Because you've said a couple of times a plain statement to the contrary.

Justice Sotomayor and Justice Alito have given you hypotheticals, very different from this case, but hypotheticals, where there is, I think, a strong inference that there was no adjudication of the particular Federal claim alleged.

You said that's not a plain statement, even though it seems as though there is a strong inference.

So what would be a plain statement?

Stephanie Brenan: A plain statement would be a procedural bar, or if there were -- a court were to say, we're not, for some reason, going the reach the constitutional claim, that they really need to say it out loud.

I don't know why they would say that, but that's what would be required.

Justice Elena Kagan: Yes, I don't know why they would say that either.

Well, by the way, we're not adjudicating this, you know.

So if that's your test, your test is an irrebuttable presumption.

Stephanie Brenan: No, Your Honor, I would disagree, because there is the possibility of having -- having the procedural bar.

Justice Samuel Alito: Well, what if -- what if the brief raises five arguments, and the opinion says the appellant has raised four arguments, is that a plain statement that the fifth -- the fifth argument was overlooked?

Stephanie Brenan: I would say that it possibly could be if it were in that situation.

However, I would -- I would still go back to, really, the Richter presumption of saying that that word at the end, denied, denied is denied is denied, and it covers every fairly presented claim.

Justice Samuel Alito: That's not a plain statement?

What if there is one Federal claim -- one Federal argument and five state arguments, and the opinion says, this appeal raises only issues of state law, is that a plain statement?

Stephanie Brenan: Possibly it could be, Your Honor, but here we don't -- we don't have that situation.

Justice Ruth Bader Ginsburg: May I ask you about the underlying claim here?

It is quite troublesome.

I think this is a state that doesn't allow an Allen charge; is that right?

Stephanie Brenan: Correct.

Correct, Your Honor.

Justice Ruth Bader Ginsburg: And the possibility of getting rid of the juror, the hold-out juror, in this way is -- is really troublesome.

The judge can't give an Allen charge to urge the jury to deliberate further, but can say -- now, the judge knows who the hold-out is, and to just dismiss that juror, it is -- it is very troublesome.

Stephanie Brenan: Well, Your Honor, the thing is that here we have a trial court who is looking at this juror and makes the determination that the juror is biased.

And, therefore, if there was to be anything of any sort of constitutional violation, it would be the keeping that juror, a biased juror, on the jury.

That would be a violation of the Sixth Amendment.

Justice Anthony Kennedy: Well, I have to -- I mean, this takes us into the merits, which is really interesting, but I -- we probably shouldn't go there, but, as long as we're there for a minute, I agree with Justice Ginsburg.

I've never seen a procedure like this.

And I looked -- I looked at this -- the Federal cases, Brown and Thomas, that the Cleveland court cited.

Those -- and Wood was voir dire, was not mid-jury.

I just hope this doesn't happen with much regularity.

And the fact that the trial judge is upset, that's the reason that you should leave the jury alone, it seems to me.

I think it's very troublesome.

Stephanie Brenan: Well, Justice Kennedy, it's a situation where, through the voir dire, what comes out is not that we're trying to get -- that the trial judge is feeling to get rid of this juror because he's the hold-out juror, but it's because through the voir dire he determines that this juror is biased, and that is the bias, and that's what makes it different.

Justice Sonia Sotomayor: That the person is not guilty is a bias?

Stephanie Brenan: No, Your Honor, that's certainly not it.

The bias comes from what he was saying of his disagreement or -- that he just really did not believe with the felony murder rule.

Therefore, it's that -- that under any evidence, whatever evidence was presented, that he would not be able to convict because he disagreed with the very basis of the law.

Justice Sonia Sotomayor: That -- that's -- that may be your strongest point, but most of what he said was basically this is a murder case, and the evidence has to be beyond a reasonable doubt, and I think it has to be clear enough for me to be convinced.

Is that a biased juror?

Stephanie Brenan: That is not a biased juror, but that's what he said to the court.

But what comes out through the voir dire of the other jurors is not that he was using a reasonable doubt standard, but that he was using a no doubt standard, an absolute doubt standard.

And that's where he's not following the law, and that's where he's biased.

And that's where he becomes a biased juror who has no right to be on that jury.

Justice Sonia Sotomayor: I must say that, like Justice Kennedy, I'm deeply troubled when trial judges intrude in the deliberative processes of juries.

Most of the time when we're assessing bias, we're assessing it on the grounds of extraneous evidence, a juror who has said one thing in voir dire and is now either a convicted felon or introduced extraneous circumstance.

But the degree of being convinced is the very essence of jury deliberations.

This case is troublesome.

Stephanie Brenan: Well, Your Honor, I believe in this situation it's one where the judge was presented with possible misconduct, and therefore had to do something.

Had the judge done nothing, we could have possibly been in the same situation.

And under -- under California law, it's where this -- this examination cannot be so intrusive.

So we maintain that it was not.

It was only to the degree in which we are finding that there was a biased juror.

At that point in time, the Sixth Amendment required that that juror be removed.

Justice Elena Kagan: Could I go back, Ms. Brenan, to your basic theory, because I guess I'm not sure I understand what you're arguing now.

In your brief, you talked about focusing on the error.

So if evidence was admitted, you would say it doesn't matter that there were three different theories for why the admission of evidence was wrong; you should just look at the fact that we're talking about the admission of evidence.

Now, is that what you're arguing, or are you also saying what the states say in their amicus brief, that even if, you know, one claim is about the admission of evidence, and one claim is about ineffective assistance of counsel, you would still apply the same rule?

Stephanie Brenan: What we're saying is that, at the very least, in our type of situation where -- where the court discusses the alleged error, there is an adjudication on the merits, but that plays into the larger and broader rule.

Justice Elena Kagan: Well, why does your theory make any sense?

I mean, we're supposed to be interpreting a statute here that says whether the claim was adjudicated on the merits.

Usually when we speak of claims, we speak of legal grounds for relief.

We don't look at a claim and say, we'll just check, you know, what -- we don't use an operative facts test, and you seem to be suggesting that that's the kind of test we should use.

Stephanie Brenan: Yes, in -- especially if you're going to look at the state courts, which are -- must decide both the Federal and state questions.

So their interpretation of what a claim is does not necessarily mean what it eventually becomes when it's in Federal habeas.

And the Federal habeas courts are limited by their jurisdiction to only be Federal law theories, and a Federal petitioner can only bring such claims.

So, for that reason, it's -- it's not the good fit for the state courts to limit them in that way.

And that's why we're saying, at least in a situation where a state court has grappled with the substance of the error, that it has adjudicated the claim, which it could have viewed, as was here, sort of a single claim independent, or it could have state law theories and Federal law theories that it puts together.

And I would like to reserve the remainder of my time.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Hermansen.

ORAL ARGUMENT OF KURT D. HERMANSEN ON BEHALF OF THE RESPONDENT

Kurt D Hermansen: Mr. Chief Justice, and may it please the Court:

The rule this Court should adopt is the same rule that the consensus -- the consensus rule of the courts of appeals.

When they look at an opinion, a reasoned opinion, they look at what the opinion says, the text of the opinion.

And if the opinion grapples with the bulk of the claims that are in the prisoner's appellate brief but omits to address one of the claims, then there is an inference that the claim has not been adjudicated on the merits.

Chief Justice John G. Roberts: Well, just the way you phrased it, if it addresses the bulk of the claims, under your theory it has to address every claim, correct?

Kurt D Hermansen: If -- under my theory, if there is a Federal claim that's overlooked or omitted, then the inference--

Chief Justice John G. Roberts: No, no.

Not overlooked or omitted.

Not discussed.

Kurt D Hermansen: --Correct.

Chief Justice John G. Roberts: Not analyzed in the opinion.

Kurt D Hermansen: Correct.

Here it's Sixth Amendment, so the Sixth Amendment was not mentioned.

The Sixth Amendment was not -- there is no indication from the opinion itself that the Sixth Amendment claim was adjudicated.

Chief Justice John G. Roberts: You agree that if -- this was raised when your friend was at the lectern -- if the court at the end said, not only denied, but said, I considered all other arguments not addressed, denied, then you have no case, correct?

Kurt D Hermansen: Correct.

And that's the recommendation of the NACDL brief.

And we do see that a lot.

There is -- where there are opinions that say: We've reviewed and considered all claims raised and reject them.

Justice Ruth Bader Ginsburg: That would mean that if you prevail it would just become routine.

Justice Kennedy mentioned the stamp that says: We considered all of the questions raised, those not discussed on the merits--

Kurt D Hermansen: Well, Justice Ginsburg, as Justice Breyer was saying, we, and as my friend was arguing, you know, there is regularity and we do -- it's fair to assume that a judge who is looking at an appellate court brief is going to do their job and look at the briefs.

Chief Justice John G. Roberts: Well, you're not willing to assume that when the judge says “ denied ”.

You're willing to assume that when the judge says: I've looked at everything, denied.

Kurt D Hermansen: Right--

Chief Justice John G. Roberts: It seems to me if you give them the presumption of regularity in the one case you ought to give it to them in the other.

Kurt D Hermansen: --And I don't think the presumption of regularity should apply here, just as this Court in Smith v. Digmon looked at the opinion and looked at what was argued and said: All the courts below made a mistake; it was fairly exhausted.

And I would like to address Justice Scalia's concern about the whole area of litigation that might occur.

That won't happen for one reason: In the habeas context the claim must be fairly presented, period.

If the Federal constitutional claim is not fairly presented, you're not in Federal court.

And so there is already a whole body of law talking about what a claim is.

And my friend tries to avoid the word “ claim ” because it's inconvenient.

Justice Ruth Bader Ginsburg: --Was it fairly presented here?

Kurt D Hermansen: It was fairly--

Justice Ruth Bader Ginsburg: Given that the argument was abuse of discretion?

Kurt D Hermansen: --Yes, Justice Ginsburg, it was fairly presented.

And in the red brief at page 39 I talk about that, and also at page 43 of the red brief I indicate that the attorney general conceded that the claim was exhausted.

Justice Anthony Kennedy: Of course, again this is fact-specific to the case.

It doesn't address the rule that we want to address and was the reason for us taking the case, but 104a, the State court, State appellate court, cites the United States v. Wood, and -- and it also cites Cleveland, and Cleveland had three circuit court cases, all of which involved the Sixth Amendment.

It seems to me that the Federal constitutional claim was intertwined with and controlling of the procedural matters that the court discussed.

I just don't see the case is here even on your theory.

Kurt D Hermansen: Justice Kennedy, I'm glad you brought that up because I do want to address your concern on that, and it's Dye -- this Court's opinion in Dye takes care of the intertwined argument.

In Dye this Court said that as long as the claim, the Federal nature of the claim is presented, even if it's presented under the same heading, it's fairly presented on a habeas claim.

Justice Samuel Alito: Yes, but that's the state court.

Here didn't -- would you disagree that the California Supreme Court in Cleveland correctly or incorrectly adopted a rule that it believed was consistent with the Federal Constitution?

Kurt D Hermansen: If that were the case, then we would have a different case.

But in Cleveland the California Supreme Court explicitly rejected or declined to adopt the Brown, Symington, Thomas--

Justice Samuel Alito: And were they under any obligation to agree with Federal courts of appeal as to the interpretation of the Sixth Amendment?

Kurt D Hermansen: --They were not.

Justice Anthony Kennedy: Well, they -- isn't the -- isn't the reasonable reading of Cleveland that we're adopting this rule, this is our State rule, it's based on a very broadly worded State statute, it is informed by our understanding of the Sixth Amendment, and we disagree.

We mention the Federal courts of appeals decisions on this issue and we respectfully disagree with their interpretation of the Sixth Amendment.

Kurt D Hermansen: Correct.

So if the -- if Cleveland were to come before this Court, then there would be a clear indication from the opinion that they had considered the Federal standard, but didn't adopt it.

Justice Samuel Alito: Didn't the -- I'm sorry.

Kurt D Hermansen: But this case isn't Cleveland.

In this case what happened was--

Justice Sonia Sotomayor: I'm not sure how you can say that.

I mean, I think the simplest statement of the State rule is that the State believes that if you remove a juror for actual bias, that that is okay under the Sixth Amendment.

They said it in Cleveland.

They were presented with the argument in this case by the briefing that the juror was not biased and hence the Sixth Amendment was violated.

And they ruled to say he was biased, and I see as a natural, clear inference that they were saying the Sixth Amendment wasn't violated because he was biased.

Kurt D Hermansen: --There -- the problem with that determination is that there's the Federal standard on what is -- what the Sixth Amendment standard is.

So under Thomas, Symington and Brown--

Justice Sonia Sotomayor: That's a different question.

That question is whether the California Supreme Court's Cleveland decision, its assumption that a biased juror violates -- doesn't violate -- the removal of a biased juror doesn't violate the Sixth Amendment, is that an unreasonable application of supreme court precedent, not circuit court precedent?

Kurt D Hermansen: --This gets to the -- my friend's argument about how their argument is upside down.

They are saying that we're trying to incorporate into 2254(d)(1) what is contrary to and what is the United States Supreme Court law, but we never get to (d)(1)'s United States Supreme Court law limitation because, looking at the text of 2254(d), you start with was the claim adjudicated on the merits.

That's the threshold question.

So if the claim was not adjudicated on the merits you don't get to the United States Supreme Court law limitation.

Instead--

Chief Justice John G. Roberts: Well -- I'm sorry.

Go ahead.

Kurt D Hermansen: --Instead you look at Brown, Thomas, and Symington, and they say that if the juror's views on the merits of the case have been expressed and the juror might be kicked off because of -- which is exactly what happened here -- kicked off because of his views on the case, then the Sixth Amendment has been violated.

Justice Sonia Sotomayor: What Supreme Court precedent commands that result?

Kurt D Hermansen: Supreme Court precedent doesn't command it, but because it's de novo review and because -- because it's a quid pro quo.

2254(d), Congress said States are going to get deference and they are going to get a limitation on the law that the Federal courts can look at, the United States Supreme Court law.

But for that quid pro quo to happen, for the States to get that deference and limitation on the law, they have to have adjudicated the claim.

Because that's--

Chief Justice John G. Roberts: No, the--

Kurt D Hermansen: --The main event is supposed to be in State court.

That is where the bite of the apple is supposed to be, in State court.

Chief Justice John G. Roberts: --The discussion you've been having with Justice Sotomayor and Justice Alito highlights another problem with your approach, is that the court is going to have to decide in every case whether or not State law is coterminous with Federal law.

And there was -- I don't know that the Ninth Circuit got that question right in this case or they got it wrong, but in every case, or many of the cases, the claim will be made on the part of the State, well, yes, they just said State law, but it's the same as Federal law.

And the Ninth Circuit recognized that as an exception to their rule.

Isn't that really going to cause all sorts of collateral litigation?

Kurt D Hermansen: And it's not because this is the rare case--

Chief Justice John G. Roberts: I'm sorry?

Kurt D Hermansen: --I'm sorry.

It's not, Your Honor.

Chief Justice John G. Roberts: Oh, it's not.

Kurt D Hermansen: Mr. Chief Justice, this case is a rare case where, looking at the opinion, we can't tell if they adjudicated the claim on the merits.

And it appears, every appearance and inference is that they overlooked it or didn't adjudicate it.

So that's a rare case.

Normally, just looking at the opinion you can tell if they adjudicated the Federal claim.

Chief Justice John G. Roberts: Except in a case like Harrington v. Richter.

Kurt D Hermansen: Harrington v. Richter created a very simple, straightforward, and appropriate presumption, because when you have a unexplained order it makes sense that, in that context, that they have adjudicated everything on the merits.

And to give the greatest respect to the State courts in comity and federalism is to look at what the order says, and if it's a reasoned opinion to take it at face value.

It says what it says; it doesn't say what it doesn't say.

Justice Elena Kagan: Well, I may be just repeating some of my colleagues here, but I think if you take this opinion at face value, it cuts against you.

I mean, it's a -- they're applying Cleveland.

Cleveland is a constitutional decision.

It's a Federal constitutional decision.

The concurrence makes that completely clear.

California has made it completely clear in other cases post Cleveland that it thinks it's applying the Sixth Amendment.

Whether it's applying a correct interpretation of the Sixth Amendment is unclear, but it's also completely irrelevant.

It thinks it's applying the Sixth Amendment, and it's reaching a Constitutional judgment, isn't it?

Kurt D Hermansen: No, Your Honor.

Cleveland -- a careful reading of Cleveland shows that the majority does not adopt the Federal standard.

So the consensus standard in the -- in the Federal circuit courts is that if the merits of--

Justice Elena Kagan: You're quite right, it does not adopt the consensus standard.

It specifically rejects the consensus standard, but it's entitled to do that.

As a state court, with no Supreme Court decision that it has to follow, it can say, we have a different view of the Sixth Amendment.

I'm just repeating what Justice Alito here said.

And that's what it's doing.

It's saying, we're applying the Sixth Amendment, we're applying it differently from the way these other courts have done so because we think they're wrong.

Kurt D Hermansen: --And so two points on that.

First, is the concurrent chides the majority for not being concerned about the Sixth Amendment.

The second is the -- my friend cites People v. Allen with an ellipse and doesn't give the full context of Allen.

So when they cite more recent law, 2006, that talks about how the demonstrable reality test, which is just a notch up above substantial evidence, is designed to protect constitutional rights of due process and Sixth Amendment, what they don't say is in People v. Allen, they only reached the statutory issue, they never reached the constitutional issue.

So, at most, it's dicta.

And the California Supreme Court has never held -- has never addressed the issue of when is the Sixth Amendment violated when a juror is kicked off in this fashion?

And instead, they -- their role is we allow free intrusion into the deliberative process.

We don't adopt Symington and Brown and Thomas when they say that -- when a juror's views on the merits of the case, questioning should stop.

Instead, we think that questioning should -- should be free to continue.

Justice Samuel Alito: The -- section 1089 is very broadly worded; isn't that right?

The section that was being interpreted in Cleveland?

Kurt D Hermansen: Section 1089 -- I don't--

Justice Samuel Alito: All right.

You think that the California Supreme Court said, we're announcing a rule of state law, and, you know, we've been told that this rule is inconsistent with the Sixth Amendment, but we don't care, and we're not even -- we're not going to worry about what the Sixth Amendment requires, we're just going to adopt this rule as state law; do you think that's what they did?

Kurt D Hermansen: --In People v. Collins, the California Supreme Court said that 1089 is a rule of efficiency so that courts can efficiently deal with possible juror bias.

And that -- that's still good law.

That hasn't changed.

So that's why Justice Werdegar, in her concurrence, was saying, we need to be worried about the Sixth Amendment.

And the only reason she joined in the opinion was it used to be, well, if there's just substantial evidence that the juror is not deliberating as a juror should, she wasn't satisfied that that was sufficient; but, because there had to be a demonstrable reality from the record that the juror wasn't deliberating, she signed on in Cleveland.

And in Cleveland, they reversed under 1089.

And this case should have been reversed under 1089.

Justice Stephen G. Breyer: --a minute, please, to Justice Kennedy's question about page 104(a).

I read the court of appeals' opinion.

Most of it, about six or eight pages, recites the facts.

Then they discuss the law.

The legal discussion is on page 104(a).

It's approximately 30 lines long.

More than half of it concerns Federal law.

I mean, they don't just cite that Federal case.

They say,

"In assessing whether a juror is impartial for Federal constitutional purposes -- Federal constitutional purposes -- the United States Supreme Court has said. "

da, da, da, then they quote it all.

Now, since your argument, the argument in the -- in this brief here is entirely Sixth Amendment, as far as I can tell, they say, look, look what happened here, they took this man off the jury.

That violates my rights to Sixth Amendment right.

It says it over and over and over.

I have no doubt you raised it.

And now they give an answer.

And the answer that they give consists of 30 lines, and 16 of the lines consist of Federal law.

So -- so what's the problem?

Kurt D Hermansen: The problem--

Justice Stephen G. Breyer: The remaining 14 lines do consist of state law too; but, I mean, how can we say they didn't consider the Federal issue?

Kurt D Hermansen: --Because Nesler doesn't talk one iota about kicking off the holdout juror.

Justice Stephen G. Breyer: No, they didn't quote -- Nesler doesn't.

What they did in Nesler is quote a Federal case.

And what they do here is not just say Nesler, they quote the Federal case.

Kurt D Hermansen: And that Federal case has nothing to do with kicking off a holdout juror.

Justice Stephen G. Breyer: Well, maybe it doesn't.

Maybe they didn't properly -- maybe they didn't properly state what Federal law is.

Everybody has some concerns about that one.

But what I don't see is how when they spend 14 out of 27 lines quoting a Federal case which they believe sets the standard for impartiality and partiality you can say that they didn't discuss the Federal issue.

Kurt D Hermansen: You hit the nail right on the head, Justice Breyer, because they are taking about impartiality.

That's all they're talking about.

They're looking at a Federal case to see what the definition of impartiality is.

Justice Stephen G. Breyer: For Constitutional purposes.

And this guy was kicked off the jury because they thought he was not impartial.

Kurt D Hermansen: The bottom line is they did not apply the Federal rule.

And the Federal rule is that if the juror's views on the merits of the case have been revealed, then the juror should not be kicked off.

Justice Stephen G. Breyer: Well, then your claim over in the Ninth Circuit is not that they didn't consider it, but that, rather, they considered it, but no reasonable juror could reach -- no reasonable jurist could reach the conclusion that they reached on the issue.

That argument is open to you.

The only thing I don't understand is how you're saying -- or everybody -- I must be wrong, because everybody seems to be saying it -- that they didn't reach the Federal issue when they spent 14 lines discussing it, rightly or wrongly.

Kurt D Hermansen: Respectfully, Justice Breyer, they don't -- they're just talking about a definition of one word, of what actual bias is.

Justice Stephen G. Breyer: Which happens to be the issue in this case.

Kurt D Hermansen: The issue in this case is can you kick off a juror who has expressed 10 or 15 times -- and this came out right out of the bat -- the foreperson was called out, asked about some notes and said, Juror No. 6, 10 or 15 times has said, I don't think there's sufficient evidence.

So that's different from whether we look at Federal law to -- for the definition of actual bias.

My -- I think it's a reasonable position to say that you can't infer from this discussion of Nesler, only talking about what the definition of actual bias is, that the actual Sixth Amendment claim -- and even the trial attorney was arguing in Symington, Your Honor, please don't question these jurors.

The foreperson, right out of the box said that Juror No. 6, 10 or 15 times, has already said that he thinks there isn't sufficient evidence.

Justice Stephen G. Breyer: No.

Now, what the court says about that argument, what the court of appeals says, is that the argument of your client not only misstates the evidence -- that's their -- not you, but they're criticizing -- and then he says,

"It ignores the trial court's explanation that it was discharging Juror No. 6 because he had shown himself to be biased. "

So this court of appeals thinks the issue is whether he had shown sufficient bias.

You think the answer to that is clearly no.

The government thinks it's yes.

And I can understand the differences of opinion, but I'm back to my question.

It seems to me in 14 lines they do address the Federal constitutional question of bias.

And that's -- that's -- maybe it wasn't the right issue, et cetera, but -- or maybe they didn't decide it correctly.

But you see what's bothering me.

And so I've listened to the answer.

Do you want to add anything?

Kurt D Hermansen: I would respectfully request that, read -- that reading this whole thing in context, it's clear that the California Court of Appeals is dealing with 1089.

They are not dealing with the Federal standard that we're grappling with here, which is if a juror's views on the merits of a case have been expressed, can you then interrogate all the jurors--

Justice Sonia Sotomayor: Is this -- is this a holding that the Sixth Amendment requires you to keep a biased juror as long as the juror says, I have doubts about the sufficiency of the evidence?

Kurt D Hermansen: --No.

If there is good cause--

Justice Sonia Sotomayor: Now, answer my question.

Does the Sixth Amendment require you to keep a biased juror?

Kurt D Hermansen: --No.

Justice Sonia Sotomayor: All right.

So, if the Sixth Amendment doesn't require you to keep a biased juror, then why is it that the state court's finding that this juror was biased a Sixth Amendment holding, that it wasn't violated because the juror was biased?

The logic is almost inescapable to me.

Kurt D Hermansen: Yeah, right.

So for a minute we'll get into the issue that wasn't certified, but what happened in this case was the judge -- the Ninth Circuit found that the finding of bias wasn't good cause under the Federal standard because the--

Justice Sonia Sotomayor: Did the California court find the juror was biased?

Kurt D Hermansen: --Yes.

Because he was applying too high of a standard because he said very convinced beyond a reasonable doubt, and there was a quibble about what does the word very add to beyond a reasonable doubt.

And the jury very eloquently responded that very convinced beyond a reasonable doubt is the same as convinced beyond a reasonable doubt.

And so that doesn't show bias when someone--

Justice Stephen G. Breyer: That was one of the things.

Then they go through in those four pages about six other -- they called -- he gave one story to the judge, Juror No. 6.

Then the prosecution calls about eight other jurors, and they come up with quite a different story about what he was telling them in the jury room and -- that I'm not going to convict him.

Well, he didn't quite say that; he was talking about Vietnam and talking about the slaves, and you don't want to convict a person for -- make him return the slave.

I mean, they talked about a lot of things.

And he went through all that, and then concludes he was biased.

And your point was he wasn't biased.

He was going to decide it fairly.

Okay, I'm listening.

Kurt D Hermansen: --But the threshold issue is when the foreperson, at the very, very, very beginning, says, Juror No. 6, 10 or 15 times has said he doesn't think there is sufficient evidence, all questioning should have stopped at that point, because there was no indication of bias.

But -- and how do we know that there's a possibility that he's being kicked off because of his views on the merits of the case?

We know that because the prosecutor filed a motion saying, let's reopen questioning.

And that -- then the judge said, okay, yeah, let's reopen questioning.

But the foreman had already said, I think your response to the jury note has satisfied that; I think it will be fine.

Yet, the prosecutor filed a motion to reopen because the prosecutor knew that this juror had reasonable doubts.

And so that's why there's clear evidence in this case that the motion to dismiss the juror was based on the juror's views on the merits of the case.

And -- and, also, this is not a capital case, it's just a -- an LWOP case.

And if there are no further questions, thank you.

Chief Justice John G. Roberts: Thank you, counsel.

Ms. Brenan, you have four minutes remaining.

REBUTTAL ARGUMENT OF STEPHANIE BRENAN ON BEHALF OF THE PETITIONER

Stephanie Brenan: Thank you.

I would just like to make about four points.

First, my friend discussed the case of Smith v. Digmon.

And I think I would like to point this Court to the words that were used in Smith v. Digmon, which is where the state court chooses to ignore in its opinion.

And as this Court later said in Castille talking about that, that's an implicit rejection.

So, really, the way it should be interpreted is, if a state court fails to mention in its opinion writing, it's implicitly rejected, not that it's been ignored.

Secondly, I'd just like to agree that, yes, California believes that 1089 is Constitutional under the Sixth Amendment.

And, in fact, the Ninth Circuit in Miller v. Stagner said that it was facially constitutional.

Third, I would just like to agree with Justice Sotomayor that here, where the trial court made the finding of bias, that answered the Sixth Amendment question.

The entire argument below and throughout was a disagreement as to whether the juror was biased, or was he just having -- harboring doubts about the sufficiency of the evidence.

Those were the counterarguments.

The trial court, by making the determination that there was bias, necessarily answered that question.

Secondly, as to that point, I would just like to also point this Court to the language in People v. Cleveland that talks about agreeing with Thomas and Brown and Symington that you cannot dismiss a juror based on his views of the evidence.

And that's at 21 P. 3d at page -- 1236.

So it couldn't have -- in order to have good cause in California, you couldn't have gotten rid of him for his views of the evidence.

Finally, I'd just like to say that Mr. Chief Justice is correct that this would increase the litigation.

We would have courts, Federal habeas courts all the time trying to decide whether there was a sufficient indication or not by deciding whether state law is coterminous with Federal law.

As we've already seen in California, following the issuance of this decision that's exactly the type of arguments that we're getting all the time now.

And for that reason, this Court should adopt the rule that where a fairly presented claim has been rejected by a state court, it has denied that claim, adjudicated that claim on the merits.

If there is anything else?

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.