FREDERICK R. WHATLEY v. WARDEN, GEORGIA DIAGNOSTIC AND CLASSIFICATION CENTER
No. 13-12034
United States Court of Appeals, Eleventh Circuit
April 10, 2020
D.C. Docket No. 3:09-cv-00074-WSD
Before ED CARNES, Chief Judge, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, and LAGOA, Circuit Judges.
BY THE COURT:
A petition for rehearing having been filed and a member of this Court in active service having requested a poll on whether this case should be reheard by the Court sitting en banc, and a majority of the judges in active service on this Court having voted against granting a rehearing en banc, it is ORDERED that this case will not be reheard en banc.
MARTIN, Circuit Judge, dissenting from the denial of rehearing en banc:
Frederick R. Whatley is a prisoner on death row in Georgia. A panel of the court denied his federal habeas petition. Whatley v. Warden, 927 F.3d 1150 (11th Cir. 2019). I asked the full court to rehear Mr. Whatley‘s case en banc, because I believe the panel opinion applied the wrong legal standard in deciding whether, under
Whatley begins by correctly articulating the
When a district court reviews a state court‘s decision under AEDPA, it must first consider the claim as it was presented to the state court. Next, it considers the state court‘s decision. If the state court applied the correct Supreme Court precedent ... the district court decides whether the state court applied the Supreme Court precedent unreasonably. The district court also considers whether the state court‘s decision was based on an unreasonable determination of the facts.
Whatley, 927 F.3d at 1181 (citations omitted). However, at three points in its analysis, the Whatley opinion suggests that the actual reasons a state court gives for denying habeas relief play a minimal role in the federal habeas court‘s decision to defer to the state court‘s ruling. First, Whatley says “under
These statements conflict with precedent that binds federal judges in deciding the extent to which we defer to a state court‘s decision during our review of those decisions on federal habeas review. See
Section 2254(d) bars federal courts from issuing a writ of habeas corpus to a state prisoner on any claim adjudicated on the merits in state court unless the state court‘s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”
The deference analysis set forth in Whatley cannot be squared with the Supreme Court‘s rule stated in Wilson. Indeed, Whatley makes no effort to square them. Yet, Wilson made clear that it is not proper for federal judges to try and come up with any rationale that could have supported the state court‘s decision. Instead, we must defer to the specific reasons given by the state court, so we must, in turn, focus on the particular reasons the state court gave.
I recognize that Wilson was decided in a different procedural posture than that presented by Mr. Whatley‘s case.2 But that does not change Wilson‘s mandate that our court‘s decision about whether to give AEDPA deference to a state court ruling must be based on the reasons the state court gave, as opposed to whatever reason a federal court can come up with.
The Whatley opinion also ignores this Court‘s precedent that reinforces the Wilson analysis. Since Wilson, this court has consistently looked to the specific reasons the last reasoned state-court decision gave and examined whether those reasons merit AEDPA deference. See, e.g., Meders, 911 F.3d at 1349 (“Deciding whether a state court‘s decision involved an unreasonable application of federal law requires the 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, and to give appropriate deference to that decision.” (citation omitted and alteration adopted)); see also Hawthorne v. Sec‘y, Dep‘t of Corr., 786 F. App‘x 896, 899 (11th Cir. 2019) (per curiam) (unpublished) (”Wilson informs our analysis.“); Junes v. Fla. Dep‘t of Corr., 778 F. App‘x 639, 641 (11th Cir. 2019) (per curiam) (unpublished) (“The district court must consider the particular factual and legal reasons that the state court rejected the prisoner‘s federal claims.“); Johnson v. Sec‘y, Dep‘t of Corr., 737 F. App‘x 438, 441 (11th Cir. 2018) (per curiam) (unpublished) (explaining standard set forth in Wilson v. Sellers). Our prior precedent rule required the Whatley panel to follow Meders. See United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (“[A] prior panel‘s holding is binding on all subsequent panels unless and until it is overruled or undermined to the point of abrogation by the Supreme Court or by this court sitting en banc.“). But it did not.
I agree with the Whatley opinion when it says the Georgia Supreme Court did not have to walk through every step of a “hypothetical retrial” of Mr. Whatley‘s penalty phase. Whatley, 927 F.3d at 1182. It is not my purpose to suggest the Georgia court must take this walk. I know that Wilson does not mean that federal judges must (or even may) “flyspeck” the state court decision. Meders, 911 F.3d at 1349. But it does mean that “we are to focus not
The Whatley majority looks mainly to Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770 (2011), and Gill v. Mecusker, 633 F.3d 1272 (11th Cir. 2011). See 927 F.3d at 1182. But Richter never advocates that federal judges look only to the state court‘s resolution of the case, as opposed to its reasoning. In Richter, the Supreme Court held that AEDPA deference applies even when the state court gives no reasons for its decision. 562 U.S. at 98, 131 S. Ct. at 784 (“Where a state court‘s decision is unaccompanied by an explanation, the habeas petitioner‘s burden still must be met by showing there was no reasonable basis for the state court to deny relief.“). Nevertheless, Richter does not tell us to look beyond the reasons the state court actually gave. Nor does it license federal judges to invent any reason that could support the state court‘s resolution of the case. Rather, it established a presumption that a state court adjudicated a claim on the merits when it gives no other reason for its decision. Id. at 98-99, 131 S. Ct. at 784-85. Richter recognized that this “presumption may be overcome when there is reason to think some other explanation for the state court‘s decision is more likely.” Id. at 99-100, 131 S. Ct. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S. Ct. 2590, 2594 (1991)). In Wilson, the Court reiterated that this presumption is overcome where an earlier state court decision sets forth reasons. 138 S. Ct. at 1195-96. Wilson told us we must presume the unexplained state court decision relied on the same rationale as the last reasoned opinion, absent some reason to think otherwise. Id. And it told us to look to the reasons the state court gave, not those we think up ourselves. Id. Finally, if it is true that Gill reads Richter as requiring us to focus on the state court‘s conclusion to the exclusion of its rationale, see Gill, 633 F.3d at 1290-91, then Gill has been “undermined to the point of abrogation by the Supreme Court,” because of the Wilson decision. See Archer, 531 F.3d at 1352.
I dissent from the denial of rehearing en banc because as written, Whatley contains an incorrect statement of law. I believe the Whatley opinion requires our en banc court to make clear that this court‘s evaluation of the reasonableness of the Georgia Supreme Court‘s rationale in denying Mr. Whatley relief must be limited to the specific reasons that court gave, and that it is improper for our court to supply its own. I dissent from the court‘s vote declining to rehear Mr. Whatley‘s case.