As we have pointed out on numerous occasions it is extremely difficult to obtain a writ of habeas corpus in the Federal courts after a conviction in state court. The Anti-Terrorism and Effective Death Penalty Act (AEDPA) sets severe limits on when a Federal Court can grant a writ following a conviction in state court.
One of the limitations set by the AEDPA is that a Federal court may not consider an issue raised in the state courts if the state court adjudicated the issue on its merits unless either it:
(1) involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or [it]
(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.
The Supreme Court, last week, in Johnson v. Williams held that the failure of the state court to discuss the Federal issue in its decision does not indicate that the state court failed to adjudicate the issue on its merits. Rather, to the contrary, the failure of a state court to discuss the Federal issue in its decision merely creates a rebuttable presumption that the state court considered the issue without mentioning it in its decision.
The Supreme Court pointed out several situations where a state court may consider a Federal issue without discussing it in its decision. In some cases the law under the state constitution is coextensive with the Federal right. In such situations if the state right is discussed there is no need to discuss the Federal right. If the reference in the defendant’s state brief to the Federal right is de minimus the state court may decide that it has not been raised as a separate issue. Finally, and in a related issue the state court may consider the Federal issue to be too insubstantial to be worthy of discussion.
In Johnson the issue was whether the Sixth Amendment was violated when the judge replaced a juror who the judge felt was biased. Although there was only limited discussion in the defendant’s briefs in the California state courts of the Sixth Amendment issue, the Supreme Court found that the state courts implicitly considered the Sixth Amendment issue without directly discussing it in the opinions.
Finding that the issue was adjudicated on its merits in the state courts, the Supreme Court reversed the Ninth Circuit decision to the contrary and remanded the case.