DeBerry v. Portuondo, Docket No. 03-2418 (2d Cir. April 4, 2005) (Walker, Oakes, and Pooler) (Opinion by Pooler) (Concurrence by Walker): In this case, the Second Circuit affirms the district court’s denial of a § 2254 petition filed by a state prisoner claiming that the prosecutor violated the rule of Batson v. Kentucky, 476 U.S. 79 (1986), in using his peremptory challenges to strike African-Americans from the jury at petitioner’s murder trial. Readers interested in the Batson issue should read the opinion for themselves. This Blog will focus on another issue touched upon by this case: What is the effect on a subsequent habeas petition when the claim advanced in the habeas was originally rejected by a state appellate court simply as “either” unpreserved for appellate review “or” without merit?
This is an issue that has been kicking around for awhile in the Circuit, and there is clearly a tension between cases issued by different panels. DeBerry unfortunately does not resolve the dispute, which is highlighted by Chief Judge Walker’s fascinating concurrence. A warning may be necessary at this point: This is seriously soporific stuff, likely of interest only to those concerned with habeas minutiae.
A very brief discussion of the facts is required. DeBerry and a co-defendant were convicted at trial of murder, and they appealed to the Appellate Division, raising among other things a Batson claim. The Appellate Division affirmed the convictions, stating with respect to the Batson claim only that it was “either unpreserved for appellate review (citing cases) or  without merit.” The New York Court of Appeals denied leave to appeal.
DeBerry subsequently filed a § 2254 petition in federal court, raising a Batson argument. After conducting a reconstruction hearing, the district court denied the petition.
Judge Pooler wrote for the Court and affirmed the lower court’s dismissal of the habeas. In so doing, she made two interesting procedural determinations, both of which flow from the Appellate Division’s terse “either / or” rejection of the Batson claim. First, Judge Pooler rejected the state’s argument that the Batson claim was procedurally defaulted, concluding that there was no clear statement by the Appellate Division that it was rejecting this claim on the basis of New York’s claim-preservation rule. Second, Judge Pooler concluded that AEDPA deference was not warranted on the Batson claim, because it was also not clear that the Appellate Division had adjudicated this claim “on the merits.” In his concurrence, Judge Walker finds no fault with the first determination, but argues that the second conclusion is logically inconsistent with the first. Although this argument has surface appeal (“If the state court did not dismiss the claim on procedural grounds, it must have done so on the merits!”), it is ultimately wrong.
The first consequence of the Appellate Division’s “either / or” adjudication for the habeas case creates little controversy: It means that the habeas court cannot conclude that the claim has been procedurally defaulted. As the Supreme Court has held, for a federal court to dispose of a habeas claim as procedurally defaulted, the state appellate court’s reliance on the independent state procedural bar must be “clear from the face of the opinion.” Coleman v. Thompson, 501 U.S. 722, 735 (1991). In other words, “federal habeas review of a state court’s rejection of federal claims is allowed where the state has not ‘clearly and expressly state[d] that its judgment rests on a state procedural bar.’” Fama v. Commissioner, 235 F.3d 804, 809 (2d Cir. 2000), quoting Harris v. Reed, 489 U.S. 255, 263 (1989). Indeed, Fama — cited by Judge Pooler on this very point — specifically addressed the effect of the Appellate Division’s terse “either / or” rulings: “[W]hen a state court uses language such as ‘[t]he defendant’s remaining contentions are either unpreserved for appellate review or without merit,’ the validity of the claim is preserved and is subject to federal review.” 235 F.3d at 809; see Reid v. Senkowski, 961 F.2d 374, 377 (2d Cir. 1992) (concluding that where the Appellate Division opined only that a claim was either unpreserved or meritless, “[t]he state court did not clearly and expressly state whether it had examined the merits of the missing witness claim or had relied on a procedural default . . . [and so the] claim is properly subject to federal habeas corpus review”).
It is the second consequence of the Appellate Division’s “either / or” ruling that generated the dispute between Judge Pooler and Judge Walker in this case — its effect on AEDPA’s deferential standard of review. Thus, after determining that a claim made in a habeas petition has not been procedurally defaulted, the habeas court must then determine whether AEDPA’s standard of review is applicable. As § 2254(d)(1) explicitly states, AEDPA’s deferential standard (permitting a grant of habeas only where, inter alia, the state court’s decision “involved an unreasonable application of clearly established federal law as determined by the Supreme Court) is triggered only when a claim had been “adjudicated on the merits in State court proceedings.” If the claim had not been “adjudicated on the merits” by the state court, then no AEDPA deference is warranted and the habeas court will simply review the claim de novo.
In several cases, the Second Circuit has held that where it is impossible to discern from either the language of the state court opinion or from the record itself whether the court rejected the claim on procedural or merits-based grounds, “a federal court should not give AEDPA deference to the state appellate court’s ruling.” Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003). Indeed, Miranda specfically analyzed a claim rejected by the Appellate Division using the same, terse “either / or” language used in this case, and concluded that “[w]here it is ‘impossible to discern the Appellate Division’s conclusion on the  issue,’ a federal court should not give AEDPA deference to the state appellate court’s ruling.” Id. at 178. Miranda left open the possibility that in some cases, even where the Appellate Division employed its cryptic “either / or” language to reject the claim raised in the habeas petition, “the record [will] make it clear  that a given claim had been properly preserved for appellate review.” Id. In such cases, the habeas court should “conclude that it fell into the ‘without merit’ part of the disjunct even if it was not expressly discussed by the Appellate Division,” id., and thus apply AEDPA deference in evaluating the habeas claim.
Relying on Miranda, Judge Pooler concluded that AEDPA deference was not warranted in this case because (1) the Appellate Division simply stated that the Batson claim was “either” procedurally defaulted “or” meritless, and (2) nothing in the record “makes it clear  that [the Batson] claim had been properly preserved.” Op. at 16-17. Unfortunately, Judge Pooler then went on to say that she did not need to resolve this issue, since the habeas petition was correctly dismissed using either the pre-AEDPA de novo standard or AEDPA’s deferential standard, since there was no Batson violation. Op. at 18.
Judge Walker’s concurrence focuses on Judge Pooler’s conclusion that AEDPA deference was not applicable, and claims that this is logically inconsistent with her determination that the Batson claim was not procedurally defaulted. Judge Walker uses truth-function deductive logic to illustrate his argument, an effort that warms the heart of this former philosophy graduate student.
Judge Walker argues thus. Concurrence at 24. First, the Batson claim raised in the habeas petition was either (A) rejected on procedural grounds or (B) rejected on the merits, by the Appellate Division. Second, Judge Pooler’s finding that the claim was not procedurally defaulted is tantamount to a finding of “not A”. Q.E.D., the conclusion must be “B” — i.e., the claim was rejected on the merits. And, therefore, AEDPA deference is warranted. [For those keeping score at home, this argument would be written as follows in standard truth function logic: Premise I: A v B; Premise II: ~A; Conclusion: B]. As Judge Walker puts it in plain English,
“The state court says its decision is based on either A (claim unpreserved) or B (fails on the merits). Fama creates a presumption that where the record provides no further indication of whether it was A or B, then the habeas court should presume it is not A (the claim is not unpreserved). Logic compels the conclusion that the state court must have decided the claim on the basis of B (the claim fails on the merits).”
Concurrence at 24. And, thus, AEDPA deference is warranted. Judge Walker cites to Ryan v. Miller, 303 F.3d 231 (2d Cir. 2003), for support. There, the Court broadly opined that if the claim was not procedurally defaulted, it must have been adjudicated on the merits for AEDPA purposes.
Clever as it is, the argument fails. The failure stems from a mis-statement of one of the premises. Specifically, while Judge Walker claims that Fama requires a habeas court confronted with an “either / or” ruling from the Appellate Division to “presume that . . . the claim is not unpreserved,” this is not an accurate characterization. Rather, Fama simply applies Coleman‘s clear statement rule concerning procedural default: A habeas court should conclude that a claim has been procedurally defaulted only where the state court has “clearly and expressly state[d] that its judgment rests on a state procedural bar.” Harris, 489 U.S. at 263. Thus, a conclusion that the Batson claim was not procedurally defaulted in the habeas proceeding is tantamount only to a determination that no clear statement demonstrates that the state court rejected this claim on procedural grounds. Such a conclusion is not equivalent to a finding that the state court in fact rejected the claim on the merits.
A similar “clear statement rule” governs whether AEDPA deference is triggered. As noted, the Second Circuit held in cases such as Miranda that where it is impossible to determine whether the state court adjucated the claim on the merits or on procedural grounds, AEDPA deference is not warranted. Thus, a conclusion that AEDPA deference is not warranted is not equivalent to a finding that the claim was in fact rejected on procedural grounds by the state court. Rather, it simply means that the state court did not clearly and expressly reject the claim on the merits.
That is the flaw in Judge Walker’s seemingly airtight argument. While it is true that a habeas claim must have been (in some metaphysical sense) either (A) rejected on procedural grounds or (B) rejected on the merits by the state court, a conclusion that the claim is not procedurally defaulted in a subsequent habeas proceeding is not equivalent to a conclusion that the claim was in fact not rejected by the state court on procedural grounds. Rather, it is merely a finding that no clear statement exists demonstrating that the state court rejected the claim on procedural grounds. Conversely, when a habeas court rules that AEDPA deference is not warranted, this conclusion means only that no clear statement exists demonstrating that the state court rejected the claim on the merits; it does not mean that the claim was rejected on procedural grounds.
Looked at in this light, Judge Pooler’s seemingly inconsistent conclusions are in fact perfectly consistent (and, dare we say, logical). Where no clear statement exists to demonstrate the basis of the state court’s rejection of the habeas claim, the claim is not procedurally defaulted and AEDPA deference is not warranted.