William H. Rehnquist: We'll hear argument next in No. 90-68, Eddie S. Ylst v. Owen Duane Nunnemaker. Mr. Thompson, you may proceed whenever you are ready.
Clifford K. Thompson, Jr.: Mr. Chief Justice, and may it please the Court: The United States court of appeals for the Ninth Circuit held in this case that footnote dictum--
William H. Rehnquist: Would you speak up a little, Mr. Thompson?
Clifford K. Thompson, Jr.: --I'm sorry. That footnote dictum in Harris against Reed compels a Federal court to presume that by summarily denying a successive State habeas corpus petition the California Supreme Court intentionally waived a procedural default that the State court of appeal had expressly claimed 10 years earlier. In 1976 respondent Nunnemaker was convicted of first degree murder. On appeal he challenged prosecution evidence on Miranda grounds. The California court of appeal refused to consider that claim on its merits because, contrary to the State's statutory contemporaneous objection rule, no objection was made to that evidence at trial on any constitutional ground. Seven years later the respondent began collaterally attacking his conviction. The State trial court, the State court of appeals, and the California Supreme Court successively denied his petitions, all without discussing the merits of his Federal claim.
William H. Rehnquist: These were petitions for habeas corpus?
Clifford K. Thompson, Jr.: Yes, Your Honor. At that point, Mr. Nunnemaker then turned to the Federal district court, which ultimately denied his Federal habeas corpus petition on the grounds that he had in fact waived... procedurally defaulted his Miranda claim. He then appealed to the Ninth Circuit. While that appeal was pending this Court announced its decision in Harris v. Reed, which became the basis for the decision below, reached without the benefit of argument or... either briefing or oral argument on this Court's intervening decision. It was in the context of divining the unspoken intent underlying a 7-page State court opinion that in Harris against Reed the Court held that a procedural default would not bar consideration of a Federal claim either on direct or Federal habeas review unless the last State court rendering judgment clearly and expressly stated that its decision rested on a State procedural bar. So the holding of Harris appeared to apply only when it was unclear whether in fact the last State court to write an opinion had invoked a State procedural rule. And in Harris the last State court wrote an opinion, an opinion expressly deciding the Federal question, but no State court in Harris clearly claimed a procedural default. By contrast, in Nunnemaker a State court did claim clearly, in fact exclusively as a basis for its decision, a State procedural bar. No State court addressed the Federal question, and the last State court did not write an opinion. Nevertheless--
William H. Rehnquist: Mr. Thompson, as I understand the ruling of the court of appeal, it was based on the proposition that the Supreme Court of California, which denied a writ of habeas corpus without opinion in this case, does on occasion grant review of otherwise defaulted claims where there's an original petition for habeas corpus. And so you can't say flatly that a denial of the writ is based on procedural grounds.
Clifford K. Thompson, Jr.: --Well, Your Honor, the Ninth Circuit's opinion quotes your opinion and says that the Supreme Court in Harris discussed the issue now before us. And it then holds that the judgment, that the California Supreme Court summary denial is a judgment under Harris, without reference to State law. It declined to look beyond the four corners of the California Supreme Court's order denying the petition. And it, like Harris, did not distinguish between the exercise of a State's court's mandatory and discretionary jurisdiction. Now, on its face the Ninth Circuit seems to say that Harris disposes of this case. And I think that that view is reinforced by the fact that the Ninth Circuit unnecessarily raised the question as to whether or not a petition for review, not... that is addressed to the State supreme court's discretionary appellate jurisdiction in a habeas corpus case, if it were summarily denied might not be a judgment within the Harris rule also. So it would seem the Ninth Circuit takes a fairly literal reading of Harris. I may be, however--
Sandra Day O'Connor: You take the position that the Ninth Circuit probably relied on that footnote in Harris--
Clifford K. Thompson, Jr.: --I do, Your Honor. I recognize--
Sandra Day O'Connor: --and that footnote, I suppose, in Harris may be dicta, in any event.
Clifford K. Thompson, Jr.: --Oh, it's unquestionably dicta, Your Honor. I mean, those were not the facts as described, I think, in footnote 1 of the dissent and in the text of the opinion. The facts before Harris were that it involved an opinion. What Harris involved, the application of the plain statement in... rule in Harris was really an application of the plain English rule. The State interest at stake was in writing ambiguous opinions. Here California is asking that its State supreme court have the right to decide when to write its opinions, not how to write them. And the complementary Federal interest in Harris was in relieving Federal courts of the somewhat impossible task of deciphering all those ambiguous opinions. In this case, however, California simply asked that the Federal court correctly interpret California law, and that once that is done that that interpretation will inform all Federal subsequent litigation. Now, it may be that the Ninth Circuit's reading of Harris was reinforced by its longstanding misapprehension of California law, namely that the California Supreme Court's habeas jurisdiction, because it is original, must be mandatory. Well, that is not true.
Byron R. White: Must be what?
Clifford K. Thompson, Jr.: Mandatory, Your Honor.
Byron R. White: I didn't read the Ninth Circuit opinion that way. I thought they said that the California Supreme Court on the original habeas petition can and does on occasion take a case regardless of previous procedural defaults and decide the merits, but that most of the time it doesn't. And that's why it applied Harris against Reed.
Clifford K. Thompson, Jr.: I don't understand the opinion that way, Your Honor. I believe it's an extension of what we in California call the Ninth Circuit's postcard rule. Back in 1974 they were faced with the problem of what to do with summary denials from the California Supreme Court when the issue was exhaustion. And this is 3 years before Wainwright was even decided.
William H. Rehnquist: These are summary denials of habeas?
Clifford K. Thompson, Jr.: Summary denial. By that, Your Honor, I mean a denial that says the petition for habeas corpus is denied. There is no explanation and no citation of authority. In order to prevent a situation in which the prisoner became a ping pong ball going back and forth between Federal and State courts, the Ninth Circuit created a presumption, and that was that a summary denial exhausted State remedies. We don't object to that presumption. We don't think that the State has any legitimate interest in exhausting the petitioner as opposed to his remedies. What happened was subsequently, in 1989 in Lewis against Borg, the Ninth Circuit extended that rule in the context of procedural default. We don't accept that rule. I mean, the State interests are altogether different in the two situations. The Ninth Circuit's reference in Nunnemaker to the California Supreme Court's original jurisdiction refers to its holding in Harris against Superior Court. They do not cite that, but they do cite McQuown v. McCartney distinguishing Harris. I think that that's fairly clear. The problem lies in the Ninth Circuit's insistence that the California Supreme Court's habeas jurisdiction is mandatory. I mean, if it were discretionary--
William H. Rehnquist: What do you mean by saying that jurisdiction in mandatory?
Clifford K. Thompson, Jr.: --What I mean, Your Honor, is that the California Supreme Court's denial represents its view of the merits of a habeas petition. And it is our position that they do not treat in a petition for habeas corpus invoking their original jurisdiction any differently from a petition for a review either from direct appeal or from a court of appeals decision in a habeas case. The Ninth Circuit disputes that. However, and I understand that it's awkward for the State to come here and say that the local Federal court has misinterpreted Ninth Circuit law or is in exception to that.
Byron R. White: Misinterpreted California law.
Clifford K. Thompson, Jr.: I'm sorry, yes. California law. There is an exception to that rule, however, and that's sort of a plain error doctrine. When it's clear that there has been an error, this Court will correct it.
Byron R. White: I take it you don't... you certainly agree that the... that the... on an original habeas petition the California Supreme Court can decide the merits if it wants to?
Clifford K. Thompson, Jr.: If it wants to, Your Honor, but--
Byron R. White: But you say if they, if they just automatically just say petition denied--
Clifford K. Thompson, Jr.: --That's a decision not to decide the case.
Byron R. White: --They won't... if they decide the merits you think there will be an opinion?
Clifford K. Thompson, Jr.: Under California procedure if they are going to decide the merits they will first issue an order to show cause. Under our law the case doesn't become a cause for decision without an order to show cause, and they will issue one and hear argument and decide the case.
William H. Rehnquist: So you say-- --Where do we look when a petition denied order from the California Supreme Court in an original habeas case cannot possibly mean that they considered the merits, found them wanting, and therefore denied it for that reason?
Clifford K. Thompson, Jr.: No more, Your Honor, than an order from this Court saying that certiorari is denied.
Byron R. White: Your answer is yes to the question?
Clifford K. Thompson, Jr.: Yeah, I mean, they look at everything, but the criteria go far beyond the merits.
William H. Rehnquist: But what's the answer to my question?
Clifford K. Thompson, Jr.: I think that the answer is, Your Honor, it is not a decision on the merits. It is a decision that for whatever reason they do not wish to entertain the case. For example--
William H. Rehnquist: Including possible lack of merit? In this case possible lack of merit to the Miranda claim?
Clifford K. Thompson, Jr.: --I think, Your Honor, no, because in that case they would, what they would say is they would deny the writ and then cite to In re Swain saying... which is a State case, saying that you don't state a prima facie case. But--
David H. Souter: Where do we look first for a concise statement of California law on this? It's true there are some cases in which they do exactly what you have described, and then there's a whole string of cases in which they simply give a one-sentence order. Has the Supreme Court of California ever come down with a definitive statement itself about the significance of the one-sentence orders, or do we have to just infer it from practice?
Clifford K. Thompson, Jr.: --Well, I think, Your Honor, as the Ninth Circuit has recognized, it turns on the nature of the State jurisdiction. If it's discretionary, if a petition invokes discretionary jurisdiction, then the Ninth Circuit would not look behind it. They have done that in Idaho. Just--
David H. Souter: As I understand it, the jurisdiction is not discretionary in the sense that they must in effect entertain the case at length and come down with a discursive opinion. But it seems to be an open question so far as what we have had presented to us as to whether it is discretionary in the sense that a denial does not imply a view of the merits. You... the parties here disagree, and I want to know where we can look for a definitive statement of California law on that.
Clifford K. Thompson, Jr.: --Well, I think, Your Honor, where I find it is in the California Supreme Court's manual of practices and procedures, where at page 13 the court describes its own--
Sandra Day O'Connor: Where do we find that in the papers here?
Clifford K. Thompson, Jr.: --Your Honor, it's not in the record in this case. Copies have been provided to the clerk of the Court. It's cited in our brief and the respondent's brief and in one amicus brief, and is the... according to the chief justice of California, some 10,000 copies have been printed and distributed. What the California court said there is that, as follows. Appeals in all death penalty cases are automatically taken to the California Supreme Court. Other cases normally come before the court either in the form of petitions for review of decisions by the court of appeal or as petitions for extraordinary writs of mandate, prohibition, certiorari, or habeas corpus. In these cases the court must decide whether to accept the matter for decision. Like the United States Supreme Court, the California Supreme Court has discretionary jurisdiction over many of the matters presented to it. Thus, with the exception of a relatively small number of appeals that come to the court directly, it has discretion to decide whether or not it will accept any particular case for review and decision on the merits. In other words, that the order saying that petition for writ of habeas corpus is denied means we do not entertain the petition, we will not hear the case. It is not a decision on the merits. It is not intended to be a waiver of any procedural default.
William H. Rehnquist: It's substantially like a denial of hearing on a petition for hearing from the court of appeals?
Clifford K. Thompson, Jr.: It is exactly--
William H. Rehnquist: Exactly?
Clifford K. Thompson, Jr.: --like that in our view, Your Honor, yes. And in fact--
John Paul Stevens: May I ask this question on it? Supposing you had a case, and I am sure there must be many of these, in which there was never an argument of procedural default, but there's just an argument about the merits of the constitutional claim. And the court of appeal wrote a long opinion denying the claim on the merits. And the petitioner thereafter went to the California Supreme Court and filed an original petition for habeas corpus. Would the entry of that order be a judgment that would be reviewable in this Court, or would it then have to review the judgment of the court of appeals?
Clifford K. Thompson, Jr.: --Well, Your Honor, you would have jurisdiction to take it, but under--
John Paul Stevens: Under the theory that it is the final judgment?
Clifford K. Thompson, Jr.: --Yes. But under the practice of looking through a discretionary denial order, and that would be one.
John Paul Stevens: What... just a minute. Let me just be sure I understand you. First, if it had been a petition for review as distinguished from a habeas corpus, then our review would be of the court of appeals' judgment, would it not?
Clifford K. Thompson, Jr.: Yes, it would, Your Honor. In which case the State court would, having reached the first--
John Paul Stevens: Right, I understand.
Clifford K. Thompson, Jr.: --could not claim a procedural default.
John Paul Stevens: But now my other hypothetical, the case like this one, where it's an original petition for habeas, then would not our review be of the California Supreme Court's action?
Clifford K. Thompson, Jr.: I think not, Your Honor. You would re... you would have jurisdiction to review their order, but the only decision they would make is the exercise of discretion.
John Paul Stevens: Well, we only have jurisdiction if it's a final judgment.
Clifford K. Thompson, Jr.: I understand, Your Honor.
John Paul Stevens: That's why we couldn't review the discretionary one.
Clifford K. Thompson, Jr.: I understand.
John Paul Stevens: But you think we would have jurisdiction over the original habeas?
Clifford K. Thompson, Jr.: No, I think what you would have jurisdiction to review is their exercise of discretion, which could be challenged--
John Paul Stevens: Well, we review judgments, not opinions and so forth, and it's a particular order that would give us jurisdiction. And in one case it's the earlier order and the other case it's the later order.
Clifford K. Thompson, Jr.: --Well, I think what would happen is you would have to conclude that you should deny cert. because there was no judgment on the merits. Now, the Court could choose, I suppose, by analogy to its practice on direct review, to look through the State supreme court's habeas denial until you got a decision. Now you should get one even on habeas, because the rule 260(e) of the California Rules of Court requires a trial court when it denies a habeas petition to state brief reasons for its denial. In this case you could look through to the court of appeals opinion and reach the merits. I am not sure that the Court would wish to do that, because what it would do in practice is to result in allowing the petitioner to renew his petition for cert. annually or even more frequently because he could always file a petition for habeas in California criticizing or challenging on Federal grounds a decision rendered by a court of appeal or even the supreme court years earlier, and then if the subsequent habeas were reviewable then you would get to review that cert. petition at least once or twice a year. Now you might wish not to do that and say instead to the petitioner, you have quite an adequate remedy on Federal habeas corpus. That decision, however, would be the court's and is not determined by the outcome in this case. All we're asking is that Harris v. Reed plain statement rule be applied only to judgments, that judgment be defined by State law consistent with Sykes' goal of--
Byron R. White: You're just saying that in this case we should just treat this case as never having been in the California Supreme Court, as it never really was.
Clifford K. Thompson, Jr.: --I am saying, Your Honor, I--
Byron R. White: And that therefore the last court to have addressed the question is the intermediate appellate court--
Clifford K. Thompson, Jr.: --The last State court.
Byron R. White: --and it relies on procedural default.
Clifford K. Thompson, Jr.: That's correct, Your Honor.
Byron R. White: Expressly.
Clifford K. Thompson, Jr.: Yes. Exclusively, in fact. Did not discuss the Federal claim. Yes, we're saying--
Byron R. White: You're really saying the petition for habeas corpus in the California Supreme Court was really... the case was never entertained there. It was just dismissed.
Clifford K. Thompson, Jr.: --That's correct, Your Honor. And therefore a summary denial of a habeas petition by the California Supreme Court, whether it invokes their original or appellate jurisdiction, is, for procedural default purposes, a neutral procedural event. It means nothing.
Sandra Day O'Connor: Well, now, to make... to make that decision the Federal court has to look to California law to determine that in California that's the effect of the order, right?
Clifford K. Thompson, Jr.: Yes, Your Honor.
Sandra Day O'Connor: And that, of course, is not what the footnote in Harris against Reed suggests. So you would have us back off from that footnote.
Clifford K. Thompson, Jr.: Your Honor, I would have the Court honor the principle that the State court is the ultimate arbiter of its own law. And I believe that the California Supreme Court has spoken very clearly in the passage I read, a passage which certainly would satisfy any plain statement rule, even if only because it is written for lay people, as the respondent will say. But there's more. There are examples, and we furnish them. In In re Joiner, In re Jackson, those are two California habeas cases in which the State court quite clearly said that our criteria for accepting an original habeas petition include the public importance of the question presented and the possibility of conflict below. Those are precisely the criteria that the California Supreme Court uses under rule 29 in exercising its discretionary appellate jurisdiction. In addition--
Byron R. White: Do you think that... do you think that we have to... if we agree with you we have to say that the court of appeals misunderstood California law? I thought they just relied on Harris against Reed, without any... without any... did you argue, make this kind of an argument before the court of appeals?
Clifford K. Thompson, Jr.: --We didn't... Your Honor--
Byron R. White: This very argument that you're making, that you should treat this habeas corpus petition when it's dismissed with just a blind order as never having really been in the court... in the supreme court? Did you make that argument?
Clifford K. Thompson, Jr.: --No, Your Honor. There was no oral argument in this case. It was... the Ninth Circuit submitted it without oral argument.
Byron R. White: All right. Was it briefed?
Clifford K. Thompson, Jr.: Briefing was completed in this case, Your Honor, before you decided Harris v. Reed.
Byron R. White: Well--
Clifford K. Thompson, Jr.: We were at a bit of a disadvantage. We think--
Byron R. White: --Well, it looks to me like the court of appeals just relied on Harris against Reed without any real close analysis of the State law such as you are now presented to us.
Clifford K. Thompson, Jr.: --That's unclear, Your Honor. I think... what is clear to me is what, if we go back, what will happen--
Byron R. White: I would hesitate to say that California... that the court of appeals miss... made a mistake about State law--
Clifford K. Thompson, Jr.: --Well, they have.
Byron R. White: --unless it's clear that they did.
Clifford K. Thompson, Jr.: Well, I think it is clear, Your Honor.
Byron R. White: Well they didn't say, they didn't talk about State law like you're talking about it.
Clifford K. Thompson, Jr.: Well, that depends on the meaning one attributes to their reference in the opinion below to the fact that this is a petition invoking the California Supreme Court's original jurisdiction. Because that's the phrase that they seized upon in Harris against Superior Court in 1974, I believe, in characterizing, or mischaracterizing our State supreme court's habeas practice.
Sandra Day O'Connor: Well, Mr. Thompson, now, the order of the California Supreme Court, the last order denying the original State habeas, was decided... handed down before our decision in Harris against Reed? Is that right?
Clifford K. Thompson, Jr.: That's true, Your Honor.
Sandra Day O'Connor: And the Ninth Circuit opinion came down after we had decided Harris against Reed?
Clifford K. Thompson, Jr.: Yes. Yes, Your Honor. In all candor, however, I find it difficult to assign a great deal of importance to that. And the reason is that the California Supreme Court has not perceptibly altered its practice since Harris against Reed. In noncapital cases... capital cases are different because the State Supreme court has mandatory appellate jurisdiction, and under its rules consolidates habeas corpus proceedings. And so in those cases they will claim procedural default. They will use the words "procedural default". They have not done so in any noncapital case, and in 1989 denied 550... gave 550 summary denials and about 648 in 1990. They are not going to change their practice. And I think the reason for it is that it would put an enormous burden on them. I mean, it's one thing to cite State cases, as they do... Swain, Linley, Dexter... because those cases show defects apparent from the face of the petition. Defects not in the procedure below but in the petition itself, such as not stating a prima facie case or raising a question of Fourth Amendment law, for example. Our State courts anticipated Stone v. Powell in that regard. Those are principles that are fairly non-controversial. They don't require a lot of time to apply, not much judge time involved. Those orders do not even relate to individual claims, and many of the petitions present up to 16 or more claims. So there is not much time involved... de minimus drafting time. Those are easy orders to write. On the other hand, for the State supreme court to claim a procedural default is pretty onerous. The Ninth Circuit itself in Bachelor against Cup pointed out that most times it's more difficult to decide the procedural default question than the underlying merits. Now, what the Ninth Circuit is asking is that the California Supreme Court look at this petition and then determine whether there has been exhaustion, whether there has been a claim of a procedural default, whether the State rules vindicates legitimate interest, whether it has been even-handedly applied, whether it is truly independent of Federal law, and whether there has been a waiver of that default, or whether it is cause and prejudice. I mean, this is an enormous burden on a court whose docket approaches this Court's. They simply can't do it, which is why they haven't done what the Ninth Circuit wants. As a matter of fact, the Ninth Circuit has given the Supreme Court of California an ultimatum. It says you have three choices. Either continue your summary denial process and we'll view it as a ruling on the merits, and then you will undermine the integrity of your State procedural rules and the finality of your judgments, or do all this work that I have just been describing, adding at least 650 cases a year to your caseload. And that doesn't include the never-ending stream of petitions as predicted by the Harris dissent that will result by guys who will... prisoners who will keep petitioning until they get a suitably ambiguous--
John Paul Stevens: No. I just interrupt a minute? I'm trying to think out through the workload problem for the judge. And you're telling me that there are cases where it's not clear on the face of the court... I assume they read the court of appeals' opinion that they're asked to review before they act on these petitions. And you're telling me there are a lot of cases where they can't tell whether the court of appeals has acted on a procedural default ground or some other ground. And how do we know, then, that it's going to be any easier for the Federal district court, who has the same problem, when the petitioner files that complaint? It seems to me if it is clear they could very simply say this is... as you say it is in this case, just entered a one-line order.
Clifford K. Thompson, Jr.: --Because, Your Honor, when the Federal district court looks through these summary denials and hits that State court opinion, it'll apply the Harris v. Reed plain statement rule. And if the State court of appeal, for example, in this case--
John Paul Stevens: Well, but if it's plain. I mean, if it is plain on the face of the court of appeals' opinion, what is the burden on the justice of the California Supreme Court?
Clifford K. Thompson, Jr.: --Well, the question then is that they're going to have to decide whether there was cause or prejudice. Because if there... if there was, then the procedural default is forgiven. Or they could decide on a given case, gee, maybe we should forgive it.
John Paul Stevens: Well--
Clifford K. Thompson, Jr.: It's enormous. And they have to do this not just once, but as to each separate Federal claim that's presented.
John Paul Stevens: --Well, why is there... if their basis is there was a procedural default and they're going to rely on that ground in the same kind of order they use now, why can't they just add the words for grounds of procedural default?
Clifford K. Thompson, Jr.: Because then, Your Honor, to do that they would have to review both the record to determine whether in fact it was, the trial record, and they don't do that in a habeas case. They look at the habeas petition and they look at the opinion. That's the... those are the documents on which these are generally disposed of. I mean, after all, we had, in 1989, 898 denials. There were only 20 cases that weren't denied. Now it cannot be--
John Paul Stevens: They would look at the same documents that the district judge will look at later on, don't they?
Clifford K. Thompson, Jr.: --Well, I guess they have them available, Your Honor. I don't think they... that they... they obviously are not making the same inquiry. I mean, after all, there's another factor here, too, and that is that normally--
John Paul Stevens: Let me just ask you to be sure I... are you telling us that they do or do not read the court of appeals' opinion before them?
Clifford K. Thompson, Jr.: --I believe that they do, Your Honor.
John Paul Stevens: Okay.
Clifford K. Thompson, Jr.: But it's not easy to tell everything that they do, because these are basically ex parte proceedings. Outside of a capital case, we are rarely asked to respond to a habeas corpus petition. And so there is nobody there on behalf of the State to urge procedural default. They may have to find it on their own. Not only that, but the prototypical cause for excusing default is competency of counsel. So now they're going to have to decide... the State court will have to decide the merits of the competency claim in order to decide whether to waive the procedural default. And there's an enormous burden being asked here. Now, they have to... they either have to do that, accept the Ninth Circuit's rule, or renounce their original habeas corpus jurisdiction. If they do that, they can escape the Ninth Circuit's rule, because essentially that's what happened in Idaho. And we don't think that comity should force the court to amend... the State to amend its own constitution. However, the court may get a little assistance from the electorate in that respect because on the 28th of January of this year assembly constitutional amendment 10 was introduced in the State assembly. It proposes to curtail the California Supreme Court's habeas... original habeas corpus jurisdiction. And we hope that that doesn't... that doesn't happen. I don't think that would, that would serve anyone's interest. If I may, Your Honor, I'd like to reserve my time for rebuttal.
William H. Rehnquist: Very well, Mr. Thompson. Ms. Drous, we'll hear now from you.
Juliana Drous: Thank you, Mr. Chief Justice, and may it please the Court: This Court developed a bright-line rule in Harris v. Reed instructing Federal courts as to how to quickly determine if in fact a procedural default was relied upon in the denial of a habeas or in the State court.
William H. Rehnquist: The part about habeas was dicta, was it not? Or the part where... in the part where it said if the last opinion on the merits, and that... because what we were dealing with there was an opinion from the Illinois appellate court which treated both the merits and procedural default.
Juliana Drous: I have two responses to that. First, the question presented in Harris v. Reed was when you have an ambiguous order, what do you do. And I would submit that a silent order is an ambiguous order. Second--
William H. Rehnquist: Are you answering the question whether that was dicta or not?
Juliana Drous: --Yes. Second, I would answer that if it is dicta, it's very well reasoned. In reviewing the Harris v. Reed oral argument transcript, I noted that justices specifically asked questions regarding a silent denial. And I am assuming that that footnote came from the responses to those questions.
William H. Rehnquist: So you say it may be dicta, but if it was dicta it was... it was good dicta and it ought to be adhered to?
Juliana Drous: Absolutely. Absolutely, Your Honor. It puzzles me as to where the burden, the additional burden will come to the State courts to provide two words on a denial, to tell the Federal courts when a procedural default was relied on.
William H. Rehnquist: Ms. Drous, I think it's easy to underestimate that burden. I wonder how we would do in our processing of 4,500 petitions for certiorari every year if we had to give an explanation as to why we... when we were denying for an issue that wasn't properly preserved below. Lots of times you just don't get into quite that amount of specificity when you're exercising discretionary jurisdiction.
Juliana Drous: Well, first of all... the question here should be what kind of discretion is exercised by the California Supreme Court. I would note, first of all, that this Court is in a very different position than the California Supreme Court. You are, after all, the Court of last resort, and after you rule, that's it. The California Supreme Court knows that when it denies a Federal... excuse me, a State habease petition, that more than likely that petitioner will move on to Federal court, and what the supreme court does is relevant as to what is going to happen next. Second of all, as to the burden, the State seems to argue here that its position would not apply on death penalty cases, so we are not talking about the cases that are the most troublesome to the California Supreme Court. And so no burden would be lessened there. In fact, when you look at the statutes in California, I would first state that this pamphlet relied upon is simply a pamphlet that is given to the public in the most basic terms to explain what the California Supreme Court does, and it is not signed... the introduction in fact is signed by Justice Lucas, but it is not signed by any other justice and we do not know if in fact the other justices agree with this. I would also point out to this Court that there is no way that either the State--
William H. Rehnquist: Do you think it's likely that the chief justice would put out a book about procedures that the other members of the court didn't agree with?
Juliana Drous: --Well, let me... the passage relied on here as to the different cases that the California Supreme Court deals with, it's true that in death penalty cases and in a few other situations the court must render a written opinion, and it's true that there is discretion to be exercised regarding a petition for writ of habeas corpus and a petition for review. But it's also true that the two procedures are treated totally differently in California. First of all, the California Supreme Court has a separate section of lawyers, researchers, to deal only with petitions for habeas corpus. Griggs v. Superior Court very clearly states that when a petition for habeas corpus is filed in the California Supreme Court the merits have to be looked at. The language... there are different sections of the constitution dealing with habeas and with petitions for review.
David H. Souter: Does Griggs... does Griggs hold that a decision following that review is necessarily a decision on the merits?
Juliana Drous: It does not, but there's a reason for that. There is no case out of the California Supreme Court which says whether or not a decision denying habeas relief is a decision on the merits.
David H. Souter: It sounds then as though this pamphlet, whatever its status may be, probably is the closest thing we're going to get to a definitive statement of California law.
Juliana Drous: Well, let me get back to that. The discretion that they're talking about in habeas is different than the discretion that is exercised in a petition for review. First of all, when a petition for review comes before the California Supreme Court it comes up with two numbers. It comes up with the California Supreme Court number, and the number from the case below, indicating that it is one case. And what the court is doing there is simply reviewing the opinion from the court of appeal to determine if a hearing, if review is proper. The... article VI, section 12 of the California constitution very specifically states that the supreme court may... clearly granting discretion... review the decision of a court of appeal in any case. When you look to the language regarding--
William H. Rehnquist: Well, isn't that dealing with the petition for hearing in the normal course of direct review?
Juliana Drous: --No, Your Honor. They are different proceedings. When the habeas... when the original habeas corpus petition is filed, what the supreme court does... that is not a review of the opinion below. First of all, you must note that one of the main reasons--
William H. Rehnquist: That was really my point. That when you're talking about the Supreme Court of California reviewing an... a decision below, that's the process of a petition for hearing, isn't it, after the--
Juliana Drous: --Correct. Except now it's called the petition for review.
William H. Rehnquist: --Petition for review?
Juliana Drous: But that's correct. Correct, Your Honor. And when you look at the language dealing with the California Supreme Court's original jurisdiction in habeas, there is no word "may". The words are "required", as in Gonzales, as in People-Gonzales, which was recently decided and which was a death penalty case. I believe it's 51 Cal. 3d. v. Lawler. "Must"... I'm sorry, it's In re Lawler. "Must", as in In re Hochberg. There is no "may".
Byron R. White: The court of appeals said it was limiting its decision to original petitions for... for habeas.
Juliana Drous: That's correct.
Byron R. White: And I suppose if there's... if there's an original petition for habeas corpus in the California Supreme Court and that court just enters that blind order, dismissed or denied... what was it? Dismissed or denied?
Juliana Drous: In California it's never dismissed. It's always denied.
Byron R. White: All right, denied. I would think the, that the fellow who has filed the original petition there and loses on such an order can come right here on a petition for certiorari, and we would not dismiss it on the grounds that we didn't have any jurisdiction.
Juliana Drous: That's correct, Your Honor. And in fact, petitioner--
Byron R. White: And although we usually say that we don't... we only take cases from a State court that has decided an issue that has been presented to us.
Juliana Drous: --That's correct, Your Honor. And in fact--
Byron R. White: So we could, we could theoretically and actually we could reverse--
Juliana Drous: --Absolutely.
Byron R. White: --the California Supreme Court.
Juliana Drous: Absolutely. In fact there have been petitions for certiorari from such a denial, as I noted in my brief, and this Court did deny certiorari. However, two justices felt that certiorari should be granted, and if certiorari was granted it would run to the supreme court. Well, if it's a petition for review and this Court grants certiorari, the certiorari runs not to the Supreme Court of California. It runs to the court of appeal.
Byron R. White: When they have just denied review?
Juliana Drous: That's correct, Your Honor. That's correct.
Antonin Scalia: Certainly you acknowledge, don't you, a matter of California law?
Juliana Drous: Yes. And the--
Antonin Scalia: And so what we have to do is take our best shot at figuring out whether California, the California Supreme Court itself regards its habeas petitions as mandatory or discretionary. Is that right? Is that a fair refrain of the question?
Juliana Drous: --That's correct, but you have... there's another... what discretion is exercised. There is discretion to be exercised in a petition for habeas. For example if a procedural default is found, there is discretion to forgive that procedural default. Interestingly enough, in the past the California Supreme Court, and I can cite to you... these are in the brief... at least five cases right now where the California Supreme Court and one of the California court of appeals found a procedural default, forgave the default, and then denied on the merits or granted on the merits.
Antonin Scalia: No, the discretion we're talking about here, to make it clearer, is discretion not to consider the case.
Juliana Drous: The California--
Antonin Scalia: To look at the case and say it doesn't seem to us important enough, or the probability of error below does not seem to us enough, without really looking into it. It just, you know, it's not a useful expenditure of our time. That's the kind of discretion we're talking about.
Juliana Drous: --The California Supreme Court does not have that absolute discretion to ignore a petition for habeas corpus filed in its office.
Antonin Scalia: Um-hum.
Juliana Drous: The--
David H. Souter: And your authority for saying that are the cases, as I understand it, from which you were quoting the verbs a few moments ago?
Juliana Drous: --Correct. Lawler, Hochberg. Also, it's... what the supreme... the supreme court has noted this in its actions. Behavior speaks louder than words. In approximately 40 percent of the cases where an original petition for habeas review is filed, the California Supreme Court in fact, when it denies, denies with citations either for exhaustion or failure... or procedural default. That does not happen... I know of no case where the California Supreme Court did that in a denial of review of a court of appeal opinion. Which also--
Antonin Scalia: And it doesn't have two different formulations, denied or declined? Whether it's on the merits or not, the judgment of the California Supreme Court is always the same? It's denied.
Juliana Drous: --It uses the same word. That's correct, Your Honor.
Anthony M. Kennedy: I suppose this would differ from State to State?
Juliana Drous: That's correct. And I would like to point out that the Ninth Circuit itself has noted that. I have under... I heard that the... California wants California law to be treated the way Idaho law is, and I believe it's Oregon law in the other case. However, in Ninth Circuit opinions the Ninth Circuit has noted that in those States original jurisdiction in habeas corpus is rarely used, which is very different than in California.
Anthony M. Kennedy: So Harris v. Reed requires us to look in a very searching way at the procedural law of all of these different States in order to understand the consequences of these orders?
Juliana Drous: I don't think in a very searching way. I think that that determination would--
Anthony M. Kennedy: You don't think we've given a searching examination into California law here this morning?
Juliana Drous: --I believe that you have, and I know the Ninth Circuit has.
Anthony M. Kennedy: I thought the whole point of Harris v. Reed was to avoid having to do that.
Juliana Drous: And it will, and it does.
Anthony M. Kennedy: After we do 50 States?
Juliana Drous: Well, the... the courts--
Antonin Scalia: 50 times isn't so many, I suppose, compared to the alternative.
Juliana Drous: --Well, I don't think that the... that it--
Anthony M. Kennedy: Do you think this is easier than our having to just look to see whether or not there was a procedural default on the merits, something we're familiar with?
Juliana Drous: --No, because that's only the first step. That would only be the first step. In--
Byron R. White: I thought you agreed that Harris... that there just ought to be the simple rule, either the last court that deals with the case says procedural default or that's the end of it.
Juliana Drous: --I believe that.
Byron R. White: And you don't... and you say... so that saves you from examining all sorts of--
Juliana Drous: That's correct. I believe what you have here is someone, someone has to decide whether a procedural... a State procedural default will bar Federal review. That is State law, State procedure. The entity that is best suited to decide that is the State court, and the State court does decide that. And all that Harris v. Reed requires is the State court to state so.
Antonin Scalia: --I suppose there would be no problem if the California constitution were amended not to eliminate the original habeas jurisdiction of the California Supreme Court, but simply to make it clear that that jurisdiction is discretionary. I suppose it could be amended that way.
Juliana Drous: That's correct, Your Honor.
Antonin Scalia: And then we'd have no problem here. We'd simply look to the court of appeals.
Juliana Drous: That's correct. I would have another question, and that is if there is no difference in the procedure of petition for review and original... and a petition for habeas corpus in the State court, why do we have it.
William H. Rehnquist: Your... I would think your answer would be, in the case of the amendment that Justice Scalia talked to you about, that even though it were completely discretionary, so long as the California Supreme Court could possibly consider a default and claim on the merits, Harris against Reed wouldn't be satisfied.
Juliana Drous: That's correct, Your Honor. Harris v. Reed is an easy rule to follow.
John Paul Stevens: What... do you think Harris against Reed applies to the direct review procedure?
Juliana Drous: It does reply... apply to the direct review procedure. However, in the direct review procedure the denial has to be taken in conjunction with the opinion from the court of appeal.
John Paul Stevens: Well, then you're saying it really doesn't apply in the same way it applies in the... in the original habeas. In other words, if this had been a direct review petition to the California Supreme Court with just a denial without any explanation, would we look to the court of appeals or would we say there is no compliance with Harris and therefore we have... the Federal court has jurisdiction?
Juliana Drous: I would answer that by saying well, it would make no sense in looking at California law to go to any prior proceeding in determining what the State court meant in its denial of an original petition. It does make more sense--
John Paul Stevens: Well, I understand. I'm asking about the other.
Juliana Drous: --No, it makes more sense to do that--
John Paul Stevens: I know it makes more sense, but what's your position on that? Would you... I know the Ninth Circuit didn't decide it, but I think your opponent is probably as much concerned about that as this issue.
Juliana Drous: --I think the Ninth Circuit did clearly state... made a distinction between the petition for review procedure and the original petition procedure. And in the petition for review, because it has two case numbers, and the petition for review clearly relates back to the opinion, that looking to the opinion as the last judgment would be proper.
John Paul Stevens: Okay.
Juliana Drous: But when you have a denial of original habeas corpus--
John Paul Stevens: So you do draw a distinction between the two?
Juliana Drous: --Yes, I would. I would. Because in... when you have a denial of original habeas corpus you do not know that in fact whatever happened in the court of appeal was relied on in that denial. What this ignores is the fact... the use of the habeas is primarily to bring new facts before the court.
William H. Rehnquist: What about when the Supreme Court of California denies review but directs depublication, or whatever the phrase is in California?
Juliana Drous: That... denying... that doesn't make any difference in the petition for review procedure to that instant case. The only thing of... depublishing the opinion, that just means that other people can't rely on that opinion in arguing law. So as to the effect on that specific case, that really makes no difference.
Antonin Scalia: Can other people rely on it for determining what the basis of the decision was? I mean, if it's depublished and it states a procedural default basis, does the depublishing eliminate that as the basis or not?
Juliana Drous: Not in that individual case.
Antonin Scalia: Okay.
Juliana Drous: But in an unrelated case you cannot cite back to it because it is no longer law. California's procedure is unique. It makes no sense to argue... Harris v. Superior Court, cited by the Ninth Circuit some time ago, found that a denial without comment is in fact a decision on the merits. The... it has been treated like that in California since that decision and perhaps even somewhat before. The California Supreme Court knows that when people have a petition for habeas relief denied they are going to go to Federal court. They have been told... they have been told by the Ninth Circuit as to how the Ninth Circuit will view their opinion. There is no reason to go back on that at this point. It just doesn't make any sense. You must assume that the judges know the law. I would say that the California justices are very aware of Harris v. Superior Court, and if it wanted a procedural default honored in the Federal system all it needed to do was say so. The... the State here is asking in effect for a reverse presumption, as what this, as declared in Harris v. Reed where there is a silent denial. There's a danger in that, because in California if you presume that a procedural default was in fact applied, you might very well be wrong, and then the individual would be denied all habeas review.
Sandra Day O'Connor: Well, do you think, looking at the record of multiple proceedings in this case, that reasonable people would differ over the meaning of the denial here, absent Harris against Reed's presumption?
Juliana Drous: This is an interesting case. We do have successive petitions, but all... and we have two petitions in the California Supreme Court, only because Mr. Nunnemaker, who was in pro per at the time, was sent back to the California Supreme Court by the judge of the district court saying I have no idea what the California Supreme Court meant in this denial. He went back to the California Supreme Court, and the second time around they cited no cases in the denial.
John Paul Stevens: But the reason for that was the fact he had another claim, an ineffective assistance claim as well as the Miranda claim, isn't it? There was a concern as to whether that had been exhausted.
Juliana Drous: That might have had an effect. And it's also possible that the court decided to forgive the procedural default. That's the problem that we have here. No one... the only... the only entity that knows in fact the intent of the California Supreme Court is the California Supreme Court. It makes no sense whatsoever to have other people guessing at what that intent was, either the Federal courts or the petitioner. Now, if the burden is going to be on the petitioner, I would suggest that then that the files of the supreme court, of the California Supreme Court, would have to be made open, because there's no other way to in fact find out what that intent was. The intent should be stated by the court who makes the decision, and not others.
Antonin Scalia: Of course there may not be any single intent. I mean, you may have had four justices vote for... against... against your client each for a quite different reason. That is quite possible, too, so that the court couldn't even give a reason. If you asked the court to give a reason, it couldn't give any.
Juliana Drous: And if that's the case, Your Honor, there has been no reliance. The procedural default was not in fact used, did not... you cannot then say that the procedural default barred review.
Antonin Scalia: I guess that's an interesting question. What if, I mean, you needed four votes. What if only one of them relied on the procedural... it's a least a but for cause, isn't it?
Juliana Drous: That's correct.
William H. Rehnquist: What would be the hardship to your client of having a rule that would say in a case like this there the last court in the... California to pass on the merits of this claim said it was procedurally defaulted. Every other thing has been simply a blind denial without any opinion. In that case the last opinion on the merits controls.
Juliana Drous: Excuse me, Your Honor?
William H. Rehnquist: Did you get any of it?
Juliana Drous: I got lost somewhere along the way. I'm sorry.
William H. Rehnquist: Okay. What would be the hardship to people in your client's position of having a rule as to exhaustion that said in a case like this, where the last opinion in the California court system was the opinion of the court of appeal saying there had been a procedural default and every subsequent proceeding has been simply a blind denial without opinion of relief, that it's that last opinion dealing with the merits that controls, and therefore there has been a procedural default?
Juliana Drous: If the... if the Federal courts decided that that was the rule to be imposed here, or if, if the State court decided?
William H. Rehnquist: Well, no--
Juliana Drous: There would be a difference.
William H. Rehnquist: --Presumably... what would be the hardship to your client in this Court adopting a rule such as that?
Juliana Drous: The hardship on my client would be that in fact perhaps the procedural default was excused and he should have been allowed to go into Federal court to litigate his Federal constitutional claim. He would be denied his day in court, in Federal court on the Federal constitutional claim.
William H. Rehnquist: Because one of the blind denials from the California appellate courts might have been on the merits?
Juliana Drous: The problem is is that, exactly that, that it might have been and you do not know that. In fact in California--
Anthony M. Kennedy: Do you say that there's a probability that that would have been the case?
Juliana Drous: --There's a--
Anthony M. Kennedy: Do you base your answer to the Chief Justice on the mathematical possibilities of this happening?
Juliana Drous: --I couldn't state what the mathematical possibilities are, but--
Anthony M. Kennedy: Not even a mathematical possibility?
Juliana Drous: --Well, there is a possibility.
Anthony M. Kennedy: How about a probability?
Juliana Drous: It's possible. It's possible, but the problem is--
Anthony M. Kennedy: It's possible, but not probable, is it?
Juliana Drous: --The problem is, is that you do not know. And you... if you presume that in fact that was what was done, you might be wrong.
William H. Rehnquist: Does... the California Supreme Court gets what, 700 petitions for habeas corpus a year?
Juliana Drous: I would... that would sound--
William H. Rehnquist: Some... oh... that order of... in how many of those does it grant relief typically in a year?
Juliana Drous: --Very few. But--
William H. Rehnquist: Can you give me some order of magnitude? 5? 10?
Juliana Drous: --Probably. Maybe a... probably. But in death penalty cases the rate is probably somewhat higher than in other cases. However, what is ignored here that is... that in 40 percent of the cases in California is documented by both the State statistics and our looking at the same minute orders, that in fact California does give reasons for denial in 40 percent of the cases. Which clearly indicates that California knows... the California Supreme Court knows that Federal review is going to be asked for, and that an explanation of what their intent was is needed.
Antonin Scalia: Oh, I don't know. We give reasons. We don't expect anybody to be reviewing us. You give reasons. It's always a good idea to give reasons where you can, I suppose.
Juliana Drous: That's exactly my point, Your Honor. It's always a good idea to give reasons. It makes everyone's job easier. It makes--
Antonin Scalia: But sometimes you can't. Sometimes you can't, where you have four justices voting not to take a case for a different reason.
Juliana Drous: --In that case I would say, as I said earlier, the procedural default was not relied upon.
John Paul Stevens: May I ask you... maybe this is off the wall, but supposing the district judge was persuaded there was... that they may well have acted on the merits in this case, adopted your position, but looked at the record in the trial court and thought well, by golly, this defendant certainly should have objected to this evidence and didn't do so. Could he as a matter... could the district judge as a matter of Federal law decide there was a waiver of the claim?
Juliana Drous: Yeah, the... this rule is not jurisdictional. It does not... if a procedural default is there, the court, the Federal court is not--
John Paul Stevens: It's really not jurisdictional either way. If there is cause and prejudice he can go ahead with it, but supposing there's neither the traditional cause nor prejudice argument, but he thinks the last State court waived the procedural default and addressed the merits. Could he say I don't think I even have to reach the merits because it's so clear to me that this argument was waived by the failure to make an objection in the trial court?
Juliana Drous: --In that case, no, Your Honor.
Sandra Day O'Connor: You don't think he could?
Juliana Drous: Because the issue of State procedural default is one for the State to decide and not the Federal court. Whether a State--
John Paul Stevens: I know that's what most of these opinions say, but I have never been sure that made all that much sense.
Juliana Drous: --I would end by just asking this Court to not go back on Harris v. Reed. It has only been the law a short time, and in fact in California the courts are now giving more detailed explanations for denial of habeas review. And it's working and it's going to make everybody's burden lighter. Thank you.
William H. Rehnquist: Thank you, Ms. Drous. Mr. Thompson, do you have rebuttal? You have I minute remaining.
Clifford K. Thompson, Jr.: Thank you, Your Honor. Your Honor, the district court did not send Mr. Nunnemaker back to the State courts because it could not figure out what they were up to. It couldn't understand what Mr. Nunnemaker was up to, because, as indicated at page 83 of the joint appendix, he came to the district court and said I have raised none of my claims on direct appeal in the State courts. That's why it was sent back for exhaustion. The respondent says what burden does footnote 12 impose on the State courts. I'd like to give an example. The Ninth Circuit's rule doesn't simply require an unequivocal claim of default by the last State court rendering judgment. It has to do it in the last order it enters. So the California Supreme Court granted a hearing, claimed a default, and then came upon the case again on collateral attack, on habeas review, and issued a summary denial. The Ninth Circuit would hold, under its interpretation of footnote 12, that they had waived the default they claimed in the first place. Why any court would do that is inexplicable to me, but I would like to point out that it... that that's quite contrary to the assurance given in Harris that a State court need do no more to preclude Federal review on habeas than it need do on direct review.
William H. Rehnquist: Thank you, Mr. Thompson. The case is submitted.
Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.