Cite as: 576 U. S. ____ (2015)
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` GINSBURG, J., concurring
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`SUPREME COURT OF THE UNITED STATES
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` TRAVIS CLINTON HITTSON v. BRUCE
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` CHATMAN, WARDEN
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`ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
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`STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
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`No. 14–8589. Decided June 15, 2015
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`The petition for a writ of certiorari is denied.
`JUSTICE GINSBURG, with whom JUSTICE KAGAN joins,
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`concurring in the denial of certiorari.
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`The Antiterrorism and Effective Death Penalty Act of
`1996 directs a federal habeas court to train its attention
`on the particular reasons—both legal and factual—why
`state courts rejected a state prisoner’s federal claims.
`Only if the state court’s decision “was contrary to, or in-
`volved an unreasonable application of, clearly established
`Federal law” or “was based on an unreasonable determi-
`nation of the facts in light of the evidence presented,” may
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`a federal court grant habeas relief premised on a federal
`claim previously adjudicated on the merits in state court.
`28 U. S. C. §2254(d).
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`This task is straightforward when the last state court to
`decide a claim has issued an opinion explaining its deci-
`sion.
`In that situation, a federal habeas court simply
`evaluates deferentially the specific reasons set out by the
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`state court. E.g., Porter v. McCollum, 558 U. S. 30, 39–44
`(2009) (per curiam); Rompilla v. Beard, 545 U. S. 374,
`388–392 (2005); Wiggins v. Smith, 539 U. S. 510, 523–538
`(2003).
`In Ylst v. Nunnemaker, 501 U. S. 797 (1991), this Court
`stated how federal courts should handle a more challeng-
`ing circumstance: when the last state court to reject a
`prisoner’s claim issues only an unexplained order. “Where
`there has been one reasoned state judgment rejecting a
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` HITTSON v. CHATMAN
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` GINSBURG, J., concurring
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` federal claim,” the Court held, federal habeas courts
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`should presume that “later unexplained orders upholding
`that judgment or rejecting the same claim rest upon the
`same ground.” Id., at 803. “[U]nexplained orders,” the
`Court recognized, typically reflect “agree[ment] . . . with
`the reasons given below.” Id., at 804. Accordingly, “a
`presumption . . . which simply ‘looks through’ [unex-
`plained orders] to the last reasoned decision . . . most
`nearly reflects the role [such orders] are ordinarily intended
`to play.” Ibid.
`In this case, the Eleventh Circuit decided that it would
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`no longer apply the Ylst “look through” presumption—at
`least when assessing the Georgia Supreme Court’s unex-
`plained denial of a certificate of probable cause to appeal.
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`Although it had long “‘look[ed] through’ summary deci-
`sions by state appellate courts,” the Eleventh Circuit
`believed that a recent decision of this Court—Harrington
`v. Richter, 562 U. S. 86 (2011)—had superseded Ylst.
`Hittson v. GDCP Warden, 759 F. 3d 1210, 1232, n. 25
`(2014). Accordingly, instead of “review[ing] the reasoning
`given in the [last reasoned state court] decision,” the
`Eleventh Circuit held it would consider hypothetical theo-
`ries that could have supported the Georgia Supreme
`Court’s unexplained order. Ibid.
`
`The Eleventh Circuit plainly erred in discarding Ylst.
`In Richter, the only state court to reject the prisoner’s
`federal claim had done so in an unexplained order. See
`562 U. S., at 96–97. With no reasoned opinion to look
`through to, the Court had no occasion to cast doubt on
`Ylst. To the contrary, the Court cited Ylst approvingly in
`Richter, id., at 99–100, and did so again two years later in
`Johnson v. Williams, 568 U. S. __, __, n. 1 (2013) (slip op.,
`at 6, n. 1).
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`The Eleventh Circuit believed that the following lan-
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`guage from Richter superseded Ylst and required the
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`appeals court to hypothesize reasons that might have
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` Cite as: 576 U. S. ____ (2015)
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` GINSBURG, J., concurring
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`supported the state court’s unexplained order: “Under
`§2254(d), a habeas court must determine what arguments
` or theories supported, or, as here, could have supported,
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` the state court’s decision.” 562 U. S., at 102 (emphasis
` added). See 759 F. 3d, at 1232. Richter’s hypothetical
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`inquiry was necessary, however, because no state court
`“opinion explain[ed] the reasons relief ha[d] been denied.”
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`562 U. S., at 98. In that circumstance, a federal habeas
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`court can assess whether the state court’s decision “in-
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`volved an unreasonable application of . . . clearly estab-
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` lished Federal law,” §2254(d)(1) (emphasis added), only by
`hypothesizing reasons that might have supported it. But
`Richter makes clear that where the state court’s real
`reasons can be ascertained, the §2254(d) analysis can and
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` should be based on the actual “arguments or theories
`[that] supported . . . the state court’s decision.” Id., at 102.
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`The Eleventh Circuit also appears to have thought it
`relevant that the Georgia Supreme Court exercises man-
`datory, not discretionary, review when deciding whether
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`to grant or deny a certificate of probable cause to appeal.
`See 759 F. 3d, at 1231–1232. Ylst itself, however, looked
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`through a nondiscretionary adjudication. See 501 U. S.,
`at 800–801. And Richter confirms that it matters not
`whether the state court exercised mandatory or discretion-
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`ary review. Although Richter required a federal habeas
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`court to presume that an unexplained summary affirmance
`adjudicated the merits of any federal claim presented to
`the state court, Richter cited Ylst as an example of how
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`this “presumption may be overcome.” 562 U. S., at 99. If
`looking through the summary affirmance reveals that the
`last reasoned state court decision found a claim procedur-
`ally defaulted, then it is “more likely,” id., at 100, that the
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`summary affirmance of that claim “rest[ed] upon the same
`ground,” Ylst, 501 U. S., at 803. In short, Richter instructs
`that federal habeas courts should continue to “look
`through” even nondiscretionary adjudications to deter-
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` HITTSON v. CHATMAN
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` GINSBURG, J., concurring
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`mine whether a claim was procedurally defaulted. There
`is no reason not to “look through” such adjudications, as
`well, to determine the particular reasons why the state
`court rejected the claim on the merits.
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`Although the Eleventh Circuit clearly erred in declining
`to apply Ylst, I concur in the denial of certiorari. The
`District Court did “look through” to the last reasoned
`state-court opinion, and for the reasons given by that
`court, I am convinced that the Eleventh Circuit would
`have reached the same conclusion had it properly applied
`Ylst. See Hittson v. Humphrey, 2012 WL 5497808, *17–
`*25 (MD Ga., Nov. 13, 2012). Moreover, an en banc re-
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`hearing petition raising the Ylst issue is currently pending
`before the Eleventh Circuit. See Wilson v. Warden, No.
`14–10681. That petition affords the Eleventh Circuit an
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`opportunity to correct its error without the need for this
`Court to intervene.