argument next in case sixteen sixty eight fifty five wilson against sellers strong mr chief justice and may it please the court when a court in twenty two fifty four proceedings review the state court summary denial of appeal from the lower courts reasoned post conviction opinion the federal court should look through the appellate siloed order to that last reasoned decision as this court does as all the circuits have a necessary ruling and a narrow ruling the question posed in rector was what to do quote where a state court's decision is unaccompanied by an explanation close quote discords choice was he th court in this case had issued an order saying we affirm the decision below our decision should not be taken as necessarily agreeing or disagreeing with the reasoning in the lower court's opinion  would look through being appropriate in that situation your honor it depends the presumption is rebuttable has justice scalia explained in the one nine hundred ninety one opinion so we would switch we would presume that the state supreme court had adopted the reasoning of the lower court even though the supreme court said specifically that it did i think that it goes a long way but whether it ultimately would rebut could depend on other facts and circumstances in the case for example there could be a reason for that decision because the state briefs things that weren't  presented as a basis for the decision below it could be that the court has justice scalia said the ninety one asked for further briefing on some items and got that further briefing on some items and i agree that a court saying that  it is a significant circumstance to consider and the georgia supreme court is quite capable of saying that if you notice it in every case suppose you win here and then a good to supreme court adopting the reasoning of the lower court that's the meaning of our summary affirm and says that is the meaning the established meaning of thousands and thousands of summary affirm and says by federal district court by federal courts of appeals actually know that i'm just sorry and what's what's correct with you repeated what i said was it's true that on summary affirm and says where there's been full argument by both sides right that you don't know the basis for a lower court's decision that is that the uniform print the same thing a uniform practice in granting or denying a cold i don't know the answer that question but we do know in this case because we have a former chief judge of georgia and a bunch of others corrupt judges from georgia telling us that that's not the standard in georgia correct correct once a very debatable and i think a dubious reading of both of those decisions there's nothing in any of those decisions that says then determining like in foster was that was was there a batson violation we didn't say we're going to consider only the things that we're sad by the lower city court we're not going to consider anything else and we said that that's what the court focused its attention on the would say that they did you didn't know sir you didn't say that expressly because exactly what you look to you didn't say over the state supreme court had a better reason or a different reason that we ought to defer to what you want if you have it and i think it foster it was pertinent in the analysis of the the lower state court determination was certainly evidence of what the issues were and were not decided but i've read the footnote carefully and i don't see anything in there that suggested that that was a an absolute rule of law that they're the state and its brief to the georgia supreme court in support of the denial of c p c argued strictly the bases that were in the order that was entered in the lower court which they wrote those suppose that there is a decision by a state intermediate court of appeals and the majority rejects a claim for certain reasons and there's a concurrence in is not interpreted in this country as an adoption of the reasoning of the lower court according to you it's where there's been one reason a state judgement judgment rejecting a federal claim federal habeas courts should presume later if you can't tell because it's silent you would normally not assume the court went onto the merits when the lower court said there was a procedural bar but when it simply merits decisions in both cases the argument anyway is that that's a different situation  circuits haven't ruled that way and i know you're wanting to resolve the issue for all of us now this court has looked through own merits rulings as well without citing you unreasonable what congress the right to do is apply the noble review and so the individuals who will be injured by this rule respondants rule of the lower co are the people whose very judgments ought to be it ought to be getting greater read if we're talking about consequences of the ruling here it seems to me it's possible that by adopting a look through we would encourage state supreme courts to say more wraps a very little more maybe as little as read or agreeing with the result but not necessarily the reasoning but equally possible would be to encourage state intermediate courts to say less and perhaps take advantage of parrington so that no state court says anything and achieves maximum deference from federal courts like california has for example should we be concerned that a ruling in favor of looks through might actually yield if states are rational and look for the least cost in the most deference adverse consequences to your to your your clients you know there was a assertion of that in richter and the response was there no there is no merit to the assertion that our decision will encourage state courts to withhold explanations opinion writing practices are influenced by considerations decision making but you couldn't you see other state legislators making other decisions say like california has because of the cost of analyzing these cases we know just as a as an aside that's changed now in california on the proposition sixty six all capital cases start in the lower court and it will go through the process as it went as eventually implemented but no i don't think the legislatures or the courts after ed part losing ground when it comes to federal a b s and they have reasons for structuring their their processes in whatever way they please and in georgia it's a serious opinion writing endeavor by a trial court that then is looked through or has been for that this simple one word statement of the state supreme court means that the decision that's keeping the person in prison is in fact the decision of the intermediate a court then if it's a presumption the state could refute it and i guess is this right the state would be free to say well look here your honor the federal judge is look this decision of the intermediate court is so obviously wrong in any way they so obviously a procedural ground an adequate state ground and look at what they argued to the state supreme court and bring out the br and send to these circumstances you shouldn't presume that that lower court decision is what the supreme court decided on indeed nobody even claimed in the supreme court that they ought to just decide on that ground i mean would you be free to do such would they be free to do that kind of thing i think they would but the state has never in georgia disagreed that it's most improbable that the georgia supreme court's decision well but when i've just said and what you said it would be free is that basically the situation that most of the states use is that's what's going on right now in the country but the circumstances under which the presumption can be militant which it really there's an argument that it wasn't one that i can make and also that the neuropsychological testing omissions could not be considered prejudicial but didn't really give reasons other than the evidence of guilt in the evidence and i agree of asian well it said didn't it mean that said a lot i think it devoted about thirty pages to this and i suspect you think that some of the things that it's wrong but is it fair to say that in general it's sad in fact said over and over one of the reasons why we find no why or why judge found no prejudice is that taking into account all the evidence that is suggest mitigating and all of the aggravating evidence and there was a lot of that here the addition of this mitigating evidence wouldn't change the outcome in the court saying that the court did say that but it wasn't it didn't consider all of the mitigating evidence there was a swath of mitigating evidence that had to do with this nineteen year old who had not been to the defense of the case killed anyone with respect to this crime and whose lawyer said it wasn't mentioned by does that mean it wasn't considered i mean it does well in like what is your answer to the argument that what you're asking the federal habeas court to do really is to grade the quality of the opinion that was written well the evidence that was offered was of institutional failure and also things like he was creative and intelligent was struggling to break away from his past and redeemabilit opinion that was written twenty two fifty four works this way the court says federal habeas judges must train their attention when what was actually involved in this is a quote in the provided by the state in aggravation and taking into account all of the all the mitigation and all the aggravation we conclude that there is no reasonable probability that a jury would have returned anything other than  and would that be read with would that be a reasonable because there isn't a detailed explanation and in this case we think it would be unreasonable again that the state wrote this  there's nothing wrong with that when there's orders from both sides and the judge takes it in amends it and in whatever way they think necessary and it was a very minimal way in this case and the order that was written and the order that was fine reduced to irrelevancy it went through don't buy item various things but when it got to the institutional failure and to the positive characteristics and traits of this nineteen year old you can't find it so you can't reduce irrelevancy under porter important mitigating evidence and that is what's the sound like less what that order to modify what i might my hypothetical where there's no explanation there's just a citation is just a listing of mitigation aggravation there's a little bit of explanation there three sentences of explanation where there's a half a page of of explanation at what point does it become would you say ok well that's enough it's reasonable well that's the level of abstraction there is difficult for me to give an answer to but yet this court has given an answer and williams and wiggins and run people in puerto where the court painstakingly went through the evidence and aggravation and mitigation especially on a prejudice problem so you know grading is a bad a label for it but the eighty d p a says take a look at what they said and analyze it and see if it's reasonable  the second prong twenty fifty four d which i didn't mention before into court has to grade and that you look at what the state fact findings were based upon so you do have to look at the opinion you have to analyze the opinion  that's called grading it doesn't take much to get a high enough grade to pass twenty two fifty four muster for the courts and going back to the limited holding in richard this court's language  shows its feel to really between two fifty four the court says quote hundred twenty fifty four d he views court must determine what arguments were theories supported and so if there's a written opinion you can see what argue  deported or has here could have supported the state court's decision and so if you know the reasons and with look through our human is you do know the reasons if you know the reasons for the decision  supported the state court's decision in this case it's it is clear and has been clear for years that the arguments that support to support the georgia supreme court's denial of c p c are those arguments that are in the state post conviction reason to order and if the court wishes to to go beyond that it's quite capable of doing it it can issue three or four pages in denying c p c and it does you can issue a paragraph in denying c p c explaining reasons beyond the report and it does the court if a court wants to do it it can do it it knows how to do it otherwise the presumption in yields should be respected had there been any commentary or in the bar offers any there any commentary on how richter has worked and i'm not aware of any commentary on how it's worked out it no longer really is applicable in california with respect to death penalty cases in the truth is non capital cases there are almost all indigent and they almost all start in the trial court and work up and they have the presumption of the workability of richter and its application in other jurisdictions i'm not seeing common commentary on but it is again cabined to the unique situation which otherwise to court might have had to order a noble review with respect to the unique situation of there being no reasons given by a court now richter does require i hate the escort federal court to imagine all of the conceivable arguments that could have supported a state court decision correct it's me and so it by definition considerations that might lead to a constitutional violation determine whether there was a constitutional violation and then determine whether it would be unreasonable to find there wasn't a constitutional violation so it's an interesting process to caused any problems it's eminently workable it makes common sense everyone knows how to do it it's much simpler part and it's much simpler much simpler and well known because you're not really  can necessarily in the release of the defendants because once it goes back down the state court can then decide which among many possibilities there are still for the conviction that's correct and you know all th happens when you do an analysis of a reasoned decision if you find it to be unreasonable you get the noble review you don't get relieved you get the noble review and you may lose under the noble review and what do you need e p a has accomplished is removing from federal judges the power to unilaterally by exercise and noble review and not paying any attention necessarily to what the state court really was violate is a state seeking credit for it's reasonable decision to just ignore and in creech to create sort of two polar opposites before the e p a the federal courts could pay attention to what a state court did and grant relief and the stay rule now is federal courts should pay no attention to what state courts did and the no i really and i think the a p d p a strikes the ri bone is between those two i respect what the state court has done if it's reasonable then there's no to noble review if it's unreasonable there is to noble review and whether you went under that review or one way or the other is a separate question there's no circuit have any trouble with this for the record this court doesn't have any trouble with it when it looks through decisions and looks at the facts in the record nothing to rule of all the circuits other than the eleventh ought to be the rule for everyone if i could reserve my time thank you coun is worn mr chief justice and may it please the court a federal habeas court must apply twenty eight u s c twenty two fifty four d standard to the last state court merits decision whether that is in a summary and whether or not that decision is preceded by a lower state court's opinion put another way federal habeas courts conducting a twenty two fifty forty and kori are not required to look through a later summary state court merits decision to review only the specific reasoning of a lower state court opinion ms warren can i just ask a question about the breath of your position is a little bit confusing to me from the briefs you spent a lot of time talking about the word decision and how he b s review is only available for decisions  not for opinions so does your argument that even when the a state court the higher state court has issued a reasoned decision that even they are that he be a score is not limited to that decision but can and should decide whether there are other grounds justice kagan our position is that twenty to thirty four d always applies to the decision but when that last a quarter to to cation on the merits is reasoned there is a textual basis in twenty to fifty four d for the federal habeas court to look at those reasons to help assess whether the decision itself is contrary to or involved in henri's about location of this court's precedents i'm not sure interest in the question but suppose you said that the reasons decision is is not is just completely wrong could you substitute and so i think the way i've understood that that goes that's completely wrong so now we don't  we don't give deference to it right it's taken itself out of because it's completely wrong are you saying no there's a second step where you have to say well if i were the judge i could have written a better decision that would  friends not justice kagan i don't think that's what our position is here so we would say that looking to their reasoning as part of the analysis the decision is part and parcel of ascertaining whether that last a court decision on the merits was contrary to our involved in that of course is a very different situation that we have here where the last eight court decision is summary and there is no evidence of what that last state court actually reasoned there is only the decision so ardently attributing to learn it with a matter of practice in denial has issued but i don't think it is fair to characterize it or to presume that those are the only instances in which the georgia supreme court would disagree with reason and i'm sorry you're disavowing the statements of a former supreme court justice of george record and all the judges that signed on to everybody quotes in his brief is wrong he says the supreme court rule thirty six says when somebody falls an application for a cause for a certificate of probable cause the application quote he's quoting from the  will be issued where there is arguable merit and here we have the night and therefore there is no arguable merit now it seems like euclid or whoever wrote it was it aristotle or so but you see that's their point so how can you get up and say we don't know what they do we do know they thought there was no arguable merit so i guess what you're asking us to do is to think of ways nobody has yet occurred to anybody but there was no arguable merit not necessarily because it's a good opinion below but because we've thought of one of your assistance a bright young graduate has walked into your office with a case from georgia law of eighteen twelve and judging from the dust nobody's ever seen it before but it was written by oglethorpe's second cousin twice removed and there we are and it's brilliant be correct then i asked a separate question that the problem looking at it practically is that you're asking us to take on a burden that only person who have a greater burden is you because you in your job when faced with the decision of intermediate appellate court and a denial of c p c we'll have to sit there making up reasons that are not present in anybody's opinion and i use oglethorpe as a comic example of that but it's that kind of thing that you'll have to do so my question is obviously why should we take a system works fairly well and throw this practical monkey wrench which means a lot more work for you into the gears a few answers to your question your honor the first is we agree with the way that you stated there are you will merit standard and i do think that is that the correct way to view rule thirty six from the georgia supreme court as to the second point i few different answers as to the process that process exactly is exactly what the california courts do with richter already so it is not a novel process but on the practical side of things and as the eleventh circuit explained below i think in practice the federal habeas court when assessing the georgia supreme court summary denial on the merits will first look to the lower court to see if the lower court's recent opinion offers any reasonable basis and so many cases the process would be very similar the problem here and i think the problem that the thread that runs through the petitioners argument that is problematic is presuming that the lower state courts reasons are the reasons of the georgia supreme so more and i take th seems to me that that's the question right what should we presume about what the georgia supreme court is doing here and in exactly the way you said so let me give you a hypothetical but say we have a bats and click case and there was a that what's the reasonable assumption about what the state court is still in i think there are two reasonable assumptions the first is that they have presuming that that claim was properly preserved for merits or view at the certificate for probable cause stage we can presume that they have denied that claim on the merits but then i think the the other presumption we must make according to this court's precedents and admonitions we should presume that the georgia supreme court knew and followed the law you see this is seems a very odd thing to say the georgia supreme court looked at an opinion and said that is such a bad opinion it has such a clear error of federal constitutional law but we are not going to explain that to anybody instead we're just going to  affirm now that's one option the other option is that the georgia supreme court had a bad day and it's too made an error and the question is and i suppose you know illust answered this question but it seems to me to answer it in a pretty reasonable way it's like we just don't expect state supreme courts to say that's a clear error of federal constitutional law and we are not going to tell anybody about it well the another basis and it but you have to believe that what that the state court is saying even though this this lower state court made an error of federal constitutional law because we can dream up something better we'll just affirm it we won't tell anybody what we're think what we think is an alternative basis we won't do anything we'll just let it be out there that judge will think that he's done a fine job everybody else will think that he's done a fine job we'll just leave it out there because what because we can't be bothered to write two sentences so you know we are affirming on the ground where you know yes and of course he's entitled to make a batson claim but he had a bad bets and claim but justice kagan that the situation you describe is exactly the situation where the approach we're describing is most important for reasons of federalism and comedy because we must start with the proposition that this reiterated time and time again that the georgia supreme court did know and all the law and to resist the readiness to attribute error that this court described and what reverses the scottie but in those situation it seems to me that that just makes a bizarre assumption about state courts that they are so interested errors of federal constitutional law that they're just going to say well as long as we have something in our heads that suggests that the ultimate judgment was right we're not going to tell anybody about them we're going to leave them out there as this is something that the judge and the parties and and future judges and future parties will think was right when we know what's wrong that that may be so justice kagan but of course when you see fifty four do you does not require by its tax reasoning it does not require statement o pinions and this court has already found based on that very text to interpretation the reasons are not required and that is exactly what i'm sorry that's the problem which is it does require because when you read twenty two fifty four  it talks about resulted in a decision that was based on an unreasonable germination of the facts in light of the evidence presented in the state court proceedings so it requires us to book at the reasoning soto's say when it talks to us about involved an unreasonable application of coolly established federal law so you're right there's nothing that says you have to write an opinion particular way but we do have to look at what they say you even admit that justice on my i think we have to look at what they say when they say something and a do you one inquiry looking at the involved an unreasonable application i think that language points to the situation i described it was just a fake and earlier where there is a let's say and let me just deviate to that question let's assume that there's an argument below the state court hippies petitions so narrowly can the state now come into court and present an argument that was made below and argue that that imagining that we have the state doing in every corner now not only do we have to imagine the lawyers have to come in and set forth every potential constitutional violation and set forth every interpretation of the facts that are potentially available decide which ones would be another reasonable application of federal law or for a reasonable finding to  the same thing to do neither could the state come in with a totally new argument that wasn't made to the state court at all and say you should  and i think i can assume that the state will deny every habe use i think in an important point to show where there is not much daylight between the petitioner's argument and ours is that we are not  that that state habeas court lowered opinion is outlawed from consideration or that it has no role in the process whatsoever in many cases the very first place and in many cases perhaps the very last place the federal habeas corpus look is to that reason decision below but not because it presumes those lower court reasons are the reasons of the last court this adjudicated the claim on the merits but simply to see whether reasonable basis exists to sustain the did i ultimately think that there's more respect for state court  let them make their own decisions because what we're doing is imaginary what they would have said instead of just asking your honor to the extent there's any discomfort with the imagining of the hypothetical is that line has already been drawn by this and there is no principal basis for deviating from that textual analysis when it is applied to the summary denial on the merits by the georgia supreme court as to your point about respect for state courts georgia has a two tiered system there are two courts that will always pass on claim that is properly exhausted first in the lower state court where reason opinion will ensue and then the georgia supreme court which will analyze the application for c p c and so to suggest that the georgia supreme court should be written out altogether i think is also an affront to federalism an comedy and to to require a presumption that the georgia supreme court has adopted those lower state court reasonings similarly it is an affront to federalism and there is the question of a georgia law that is implicated here and would be one thing if it were generally understood in georgia that a summary for moments by the state supreme court does not necessarily adopt the reasoning of the court and would be another thing if it was the rule in georgia are generally understood in is there any well known practice in georgia well justice alito there is none that we are aware of there's no for example court rule that explains that or did you get it from the kitchen to say it is the georgia supreme court practice when it i believe that's based on petitioners practice i would characterize that as anecdotal the fact that five or six of these reasoned denials have issued over the hundreds or thousands of c b c applications the georgia supreme court has reviewed i do not think stands for the proposition that every time the georgia supreme court disagrees with the lower court's reasoning it takes the time to issue a reasoned dissent who didn't tell us what we should generally draw from silence it just says  opposite courts generally behave accordingly not always but generally affirming when when without further discussion when they agree not when they disagree with the reasons given below and that was you know there was a different context as you say it was procedural versus merits but that basic reasoning was not limited to the context it was it was a more general understanding of what silence means or generally should be taken to mean with respect to state supreme courts why wasn't it right what justice kagan a few reasons first that this was a pretty at the determination it's a judge made potential doctrine that is restricted to help federal courts ascertain whether it can hear federal claims not case here what do you do when you're presenting an argument in these cases do you just receive the state respond primarily or only to the state court decision or do you say we've got four more good arguments  this opinion is clearly wrong but we're going to we're good lawyers and we're going to think of another opinion that could have been written it wasn't but it could have been and we're going to affirm on the ground of course we're not going to say this we're just going to say affirm but but the thing that i'm thinking is this hey b s petition or has never been presented with this alternative argument so it might be that the petitioner would have a really good  response to this alternative argument but he doesn't even know that it's in the case it seems quite unfair to the hideous petitioner to say your position is denied not to which that court could have bases to dial it really go that far in this case this is not a case anybody's arguing that the decision of the georgia supreme court is a reasonable one based on some ground that was never raised by anybody below the contours of the dispute here are very well known deficient performance which is largely dropped out and the question of prejudice so it's all about whether there was prejudice under str do we have to go so far as to make a rule we have to go have to do we have to decide in this case what would be the situation where the issue where the ground for a firm and so was never ways that all below where the ground for a that is attributed to the state supreme court is different from the basic ground for affirm and that was addressed by the district court by the by the lower state court well i think that all this court has to do is apply what it is already on in harrington versus rector and then that has laid out the process for how the federal habeas court would treat the georgia supreme court's summary adjudication on the merits their counsel you know of course in this court we say our summary  we are going to now confront fifty states or x number of states with rule or something in their precedents or a footnote say we do not necessarily endorse all of the lower court reason just exactly as this court has done for itself then what i think if a state has a clear rule either by case law or rule by its court that gives further direction as to how to treat summary form and says that those would be honored where whereas here the georgia supreme court has no rule has has no clear binding practice that is consistently indicative of what it intends by summary from it says that the summary from its of the georgia supreme court should not be treated the exact opposite as the way this court and other federal court big difference of the first harrison is different because in harrison there was no decision of the state court that you could look too obviously the federal habeas court has to try to figure out some theory as to what they were holding that isn't the question here where there is a decision of the court and where the hey be as court later takes that decision as being the a decision from the state that led to this person's being deprived of liberty what does that say about whether the summary affirm and should be treated as precedent for state law it says nothing i think when you have us to saying ours should not be treated that way of course we don't want it is a precedent binding every court in the nation when a federal appeals court says our summary a firm and does not mean that we agree of course they don't want it to be binding throughout the circuit but this decision before us has nothing to do with that we can say the district that set that the appeals court in georgia has made the decision that is leading to his deprivation of liberty and ignore the summary of ferment not saying anything about whether the summary of vermont is precedent or not a matter not before us isn't that so justice breyer correct that i don't think this court has to make a judgment as to what the summary affirm it says mean in georgia at that point i would ask the court to go back to the text because the text requires application of twenty two fifty fo just have so much trouble it starts with what justice kagan said you with meant that if the if it's a reasoned decision in the supreme court we have to look at the reasoned decision correct yes i think right and is nothing in the language of twenty to fifty four d that says that it just says you have to look at the reasoning and determine whether they are it's contrary to federal law so  i'm not sure how that gets to you to where you're go and we're looking at a decision we're looking at the one court that the state system has designated as the court that is required to take the evidence and not said by law that those reasons are the reasons attributable to the georgia supreme court and looking to the taxes your honor was there and we're not saying that the either but that was all we're saying is that these reasons don't stand up to  lower state courts reasoning contains an affirmative because the lower state courts reasoning shows that the decision below was contrary to or an unreasonable application of this court's precedents it is not the most probable it is not the most pragmatic and it is not the correct presumption to presume that those lower state courts reasons are imputed on the georgia supreme court the last week or two due to kate the claim on the merits that it was ok for you when we say you do that to find the procedural bar because you like them well but if we're going to do it why don't we do it in every situation other than that you like one part of it and not the other but i would certainly resist that characterization but i would say that purpose as it was originally conceived is consistent with uncomplimentary to the inquiry that this court later set out inherent in versus rector and so using else for the purpose that else was originally intended which is to identify the state court bars and to preserve them which is a probable assumption where silence may very well equal consent that respects comedy and its own way by ensuring that state court procedural bars are not vitiated by later state court summary opinions here asking this court to make sure that the georgia supreme court or any highest court of the land does not have in firm reasoning imputed on it when they are faced with those reasonable and unreasonable argument the presumption that the lower state court reasons are the same as the last to court's decision cannot stand until about a year ago the state was well aware what the state process was in georgia the state process in georgia is the parties submit a proposed order from the state's order in this case is the talk of number eighteen that's one of the record and then and i guess i'm wondering if if it all turns on what the state court practice is and we're going to create a huge incentive for state court to simply adopt different orders that say we adopt more or less the reason of the appellate court but but not necessarily all of it and there may be other reasons what we accomplished in this presumably we're going to defer to those final decisions of the state courts and not look behind though i mean i haven't heard an argument that we'd look behind that kind of ruling so what exactly have we accomplished here i think what the state and rule creates is a maze trying to figure out what a summary of ferment means in a state what a discretionary to niall of an appeal means what america you know what do any of the mean when the when the old rule applies across the board the yost rule says silence means an agreement so even if a state supreme court says we affirm the judgment and uses language exactly like this court uses but not necessarily all of the reasonings and there may be additional reasons beyond those that the lower court provided we would look behind that is that is that the suggestion and how does that fit with federalism in comedy what he'll host hold his that we're trying to figure out what's most probable not necessarily what is absolutely right what is most ok and in the georgia supreme and that case and what have we accomplished is my question if you could answer that you mean by just having a rubber stamp that says not for the same reasons just going to be a slightly different rubber stamp well i think that created a simple thank you counsel the case is submitted