Lies, Damn Lies, and White Ink: The Convenient Fiction of Adjudication on the Merits in Murdoch v. Castro

IntroductionUnder the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), state court adjudications of federal claims are entitled to a heightened level of deference whenever state court petitioners file habeas corpus petitions in federal court.1 This Comment examines whether AEDPA deference is appropriate when the last state court opinion "clearly overlooked" the federal claim.2 Congress intended AEDPA to end the flood of habeas petitions filed in federal court by decreasing the incentive for state prisoners to file federally.3 Treating state court decisions with more deference would also enhance "comity, finality, and federalism" by allowing state criminal convictions to become final more quickly.4 In the nearly fifteen years since its passage, AEDPA has been harshly criticized by scholars for being poorly drafted and has also proven difficult for federal courts to apply uniformly.5 The federal circuits are particularly divided on how to approach state court decisions that do not address properly raised federal claims.6In 2010, in Murdoch v. Castro, the U.S. Court of Appeals for the Ninth Circuit demonstrated how a federal court reviewing a habeas corpus petition can cheapen both respect for state law and prisoners' federal rights by holding that a state court adjudicated a claim on the merits when that claim was clearly overlooked.7 Like most federal circuits, the Ninth Circuit generally assumes that all issues properly before a state appellate court have been adjudicated on the merits wherever there is a final disposition on non-procedural grounds.8 In Murdoch, however, a properly raised federal claim, supported by binding state and federal Supreme Court precedent, went completely unmentioned by the state appellate court opinion.9 As Chief Judge Kozinski persuasively argued in dissent, it disdains state law to find that a claim that was never mentioned was in fact adjudicated on the merits because "[c]ourts just don't do that kind of work in white ink."10 This Comment sides with Chief Judge Kozinski and concludes that federal courts applying AEDPA must review the state court record diligently to determine if the federal claim has actually been adjudicated on the merits and not overlooked in error.11Part I provides background on AEDPA and the circuit split over how it requires federal courts to treat state court opinions silent on federal claims.12 Part II examines the Ninth Circuit's decision to deny habeas relief in Murdoch and explains how this decision exemplifies the major issues of AEDPA jurisprudence.13 Part III studies Chief Judge Kozinski's dissent in Murdoch and shows that it presents a novel approach to determining whether federal claims have been overlooked by state courts.14 Finally, Part IV concludes that Chief Judge Kozinski's approach is the best way to respect both prisoners' rights and state law.15I. The Controversy Over AEDPA Review and Silent State Court OpinionsA. AEDPA's Application and Silent State Court OpinionsAEDPA, passed in response to the Oklahoma City bombing of 1995, was designed to create new tools to apprehend and prosecute terrorists by making all criminal convictions final more quickly.16 Congress enacted § 2254(d) to "streamline Federal appeals for convicted criminals sentenced to the death penalty." 17 Beyond this goal of reducing delays in achieving final decisions in criminal cases, the AEDPA's legislative history provides very little insight into the way Congress intended the provision to function in practice.18 Section 2254(d) reads:(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-(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. …