The Post-Harrington Muddle: “Deference” to Analyses That State Courts Did Not Actually Make
One of the oddities of federal habeas litigation after last term’s decision in Harrington v. Richter is the notion that district courts should not simply defer to what state courts actually said but should try to determine, as the court put it in Harrington,
what arguments or theories supported or, as here, could have supported, the state court’s decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.
This analysis is nominally conducted under the theory that federal courts should “defer” to the reasoning of state courts, but of course it’s difficult to defer to an analysis that never occurred. And the result of framing the inquiry this way, when you think about it, is that the federal court, far from being deferential to the state court, is given a green light to generate a de novo legal analysis rather than confine itself to what the state court actually did. Apparently the idea is that the federal court should think up a new rationale for upholding the conviction and then deny relief, under the AEDPA, because if the state court had actually come up with this rationale, it would not have been “contrary to, or an unreasonable application of” established federal law.
Such an approach might make sense in some types of cases, but not in every case.
Harrington, of course, was about a “postcard denial” — i.e., a state court denial of a habeas petition unaccompanied by any explanation of the basis for the denial. But that is not stopping state attorneys from citing the passage quoted above for the proposition that even an obviously flawed state court analysis should be upheld if there is any conceivable argument that the state court could have made that might have justified an affirmance. More worrisome, this language about what “could have supported the state court’s decision” can now be found in 27 post-Harrington cases in the circuit courts, often with no suggestion that the inquiry into what analysis a state court “could have” performed is limited to the situation of postcard denial.
A few decisions push back against this broad use of the Harrington language. In Montgomery v. Bobby, 654 F.3d 668, 700 (6th Cir. 2011), the Sixth Circuit noted:
If the state court articulated its reasons [for denying a claim], the habeas court must identify and evaluate those reasons under § 2254(d); only if the state court did not articulate its reasons must the habeas court hypothesize as to the state court’s reasoning, and evaluate those hypothetical reasons. [Citation.] In evaluating the state court decision in this case pursuant to AEDPA, we need not hypothesize as to the state court’s reasoning. Instead, we base our decision on the reasoning articulated by the state supreme court.