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Subject: 90-68 -- OPINION, YLST v. NUNNEMAKER





NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.

SUPREME COURT OF THE UNITED STATES


No. 90-68



EDDIE S. YLST, WARDEN, PETITIONER v. OWEN DUANE NUNNEMAKER

on writ of certiorari to the united states court of appeals for the ninth
circuit

[June 24, 1991]



    Justice Scalia delivered the opinion of the Court.
    In this case we decide whether the unexplained denial of a petition for
habeas corpus by a state court lifts a state procedural bar imposed on
direct appeal, so that a state prisoner may then have his claim heard on
the merits in a federal habeas proceeding.

I


    In 1975, respondent Nunnemaker was tried in California state court for
murder.  He raised a defense of diminished capacity and introduced
psychiatric testimony in support.  In response, the State introduced --
without objection from respondent -- the testimony of a psychiatrist based
upon a custodial interview.  The jury found respondent guilty.  He
appealed, claiming for the first time that the State's psychiatric
testimony was inadmissible because the interview had not been preceded by a
Miranda warning, see Miranda v. Arizona, 384 U. S. 436 (1966).  In
addition, he alleged that his attorney's failure to object to the
psychiatric testimony amounted to ineffective assistance of counsel, and
raised other claims not relevant here.
    The California Court of Appeal affirmed the conviction.  The sole basis
for its rejection of the Miranda claim was the state procedural rule that
"an objection based upon a Miranda violation cannot be raised for the first
time on appeal."  App. 15.  See People v. Bennett, 60 Cal. App. 3d 112,
116, 131 Cal. Rptr. 305, 306-307 (1976); In re Dennis M., 70 Cal. 2d 444,
461-462, 450 P. 2d 296, 306-307 (1969). The California Supreme Court denied
discretionary review on September 27, 1978.
    In 1985, respondent filed a petition for collateral relief in
California Superior Court.  The petition was denied without opinion.
Respondent then filed a similar petition for relief in the California Court
of Appeal, invoking that court's original jurisdiction.  That petition was
also denied without opinion. Finally, respondent filed a petition for
habeas corpus in the California Supreme Court, invoking the original
jurisdiction of that tribunal.  That petition was denied on December 3,
1986, with citation of In re Swain, 34 Cal. 2d 300, 304, 209 P. 2d 793, 796
(1949), and In re Waltreus, 62 Cal. 2d 218, 225, 397 P. 2d 1001, 1005
(1965).  App. 82.  No opinion or other explanation accompanied these
citations.
    Respondent next filed a petition for writ of habeas corpus in the
United States District Court for the Northern District of California.  The
court dismissed the petition without prejudice, ruling that it was not
clear whether respondent had exhausted his state remedies with respect to
all his claims. {1}  See Rose v. Lundy, 455 U. S. 509 (1982).  Respondent
then filed a second petition for habeas relief in the California Supreme
Court, again invoking that court's original jurisdiction.  That petition
was denied, without opinion or case citation, on April 7, 1988.
    Respondent then filed a second petition for habeas relief in the
Northern District of California, raising the Miranda claim and the
ineffectiveness claim.  The court rejected the ineffectiveness claim on the
merits.  As to the Miranda claim, the court found that respondent's state
procedural default barred federal review.  Respondent appealed.  The Court
of Appeals for the Ninth Circuit reversed in part.  The court agreed that
the ineffective assistance claim was meritless.  However, relying upon our
intervening opinion in Harris v. Reed, 489 U. S. 255 (1989), the court held
that the California Supreme Court's "silent denial" of respondent's second
state habeas petition to that court lifted the procedural bar arising from
the decision on direct review.  Specifically, the Ninth Circuit held that
because the California Supreme Court did not "clearly and expressly state
its reliance on Nunnemaker's procedural default," the federal court could
not say that the Supreme Court's order "was based on a procedural default
rather than on the underlying merits of Nunnemaker's claims."  904 F. 2d
473, 476 (1990).  We granted certiorari, 498 U. S. --- (1990).

II
    The last state court to render a judgment on the Miranda claim as of
1978, the California Court of Appeal, expressly found a procedural default.
When a state-law default prevents the state court from reaching the merits
of a federal claim, that claim can ordinarily not be reviewed in federal
court.  Wainwright v. Sykes, 433 U. S. 72, 87-88 (1977); Murray v. Carrier,
477 U. S. 478, 485-492 (1986).  Thus, had respondent proceeded to federal
habeas on the basis of the Miranda claim upon completing his direct review
in 1978, federal review would have been barred by the state-law procedural
default.
    State procedural bars are not immortal, however; they may expire
because of later actions by state courts.  If the last state court to be
presented with a particular federal claim reaches the merits, it removes
any bar to federal court review that might otherwise have been available.
See Harris, 489 U. S., at 262.  We consider, therefore, whether the
California Supreme Court's unexplained order denying his second habeas
petition to that court, which according to the Ninth Circuit sought relief
on the basis of his Miranda claim, constituted a "decision on the merits"
of that claim sufficient to lift the procedural bar imposed on direct
appeal.
    The Ninth Circuit concluded that it did constitute a decision on the
merits by applying a presumption that when a federal claim is denied
without explicit reliance on state grounds, the merits of the federal claim
are the basis for the judgment.  Petitioner argues that that was error, {2}
and we agree.  The Ninth Circuit thought itself to be following our
decision in Harris v. Reed, 489 U. S., at 263.  As we have since made
clear, however, see Coleman v. Thompson, --- U. S. --- (1991), the Harris
presumption is to be applied only after it has been determined that "the
relevant state court decision . . . fairly appear[s] to rest primarily on
federal law or [is] interwoven with federal law."  Id., at --- (slip op.,
at 14).
    The consequent question presented by the present case, therefore, is
how federal courts in habeas proceedings are to determine whether an
unexplained order (by which we mean an order whose text or accompanying
opinion does not disclose the reason for the judgment) rests primarily on
federal law.  The question is not an easy one.  In Coleman itself, although
the order was unexplained, the nature of the disposition ("dismissed"
rather than "denied") and surrounding circumstances (in particular the fact
that the state had rested its argument entirely upon a procedural bar),
indicated that the basis was procedural default.  But such clues will not
always, or even ordinarily, be available.  Indeed, sometimes the members of
the court issuing an unexplained order will not themselves have agreed upon
its rationale, so that the basis of the decision is not merely
undiscoverable but nonexistent.
    The problem we face arises, of course, because many formulary orders
are not meant to convey anything as to the reason for the decision.
Attributing a reason is therefore both difficult and artificial.  We think
that the attribution necessary for federal habeas purposes can be
facilitated, and sound results more often assured, by applying the
following presumption: where there has been one reasoned state judgment
rejecting a federal claim, later unexplained orders upholding that judgment
or rejecting the same claim rest upon the same ground.  If an earlier
opinion "fairly appear[s] to rest primarly upon federal law," Coleman, U.
S., at --- (slip op., at 14), we will presume that no procedural default
has been invoked by a subsequent unexplained order that leaves the judgment
or its consequences in place.  Similarly where, as here, the last reasoned
opinion on the claim explicitly imposes a procedural default, we will
presume that a later decision rejecting the claim did not silently
disregard that bar and consider the merits.  This approach accords with the
view of every Court of Appeals to consider the matter, save the court
below.  See Prihoda v. McCaughtry, 910 F. 2d, 1379, 1383 (CA7 1990)
(dicta); Harmon v. Barton, 894 F. 2d 1268, 1272 (CA11 1990); Evans v.
Thompson, 881 F. 2d 117, 123, n. 2 (CA4 1989); Ellis v. Lynaugh, 873 F. 2d
830, 838 (CA5 1989).
    This presumption assists, as we have said, not only administrability
but accuracy as well -- unlike the application of Harris to unexplained
orders, which achieves the former at the expense of the latter.  As applied
to an unexplained order leaving in effect a decision (or, in the case of
habeas, the consequences of a decision) that expressly relies upon
procedural bar, the Harris presumption would interpret the order as
rejecting that bar and deciding the federal question on the merits.  That
is simply a most improbable assessment of what actually occurred.  The
maxim is that silence implies consent, not the opposite -- and courts
generally behave accordingly, affirming without further discussion when
they agree, not when they disagree, with the reasons given below.  The
essence of unexplained orders is that they say nothing.  We think that a
presumption which gives them no effect -- which simply "looks through" them
to the last reasoned decision -- most nearly reflects the role they are
ordinarily intended to play. {3}
    Respondent poses various hypotheticals in which this presumption would
not produce a correct assessment of the state-court disposition.  We need
not consider them, because we do not suggest that the presumption is
irrebuttable; strong evidence can refute it.  It might be shown, for
example, that even though the last reasoned state-court opinion had relied
upon a procedural default, a retroactive change in law had eliminated that
ground as a basis of decision, and the court which issued the later
unexplained order had directed extensive briefing limited to the merits of
the federal claim.  Or it might be shown that, even though the last
reasoned state-court opinion had relied upon a federal ground, the later
appeal to the court that issued the unexplained order was plainly out of
time, and that the latter court did not ordinarily waive such a procedural
default without saying so.  While we acknowledge that making the
presumption rebuttable will make it less efficient than the categorical
approach taken by the Courts of Appeals that have adopted the "lookthrough"
methodology, see Prihoda, supra, 910 F. 2d, at 1383; Harmon, supra, 894 F.
2d, at 1272; Evans, supra, 881 F. 2d, at 123, n. 2; Ellis, supra, 873 F.
2d, at 838, we think it will still simplify the vast majority of cases.
The details of state law need not be inquired into unless, if they should
be as the habeas petitioner asserts, they would constitute strong evidence
that the presumption, as applied, is wrong.
    To decide the present case, therefore, we begin by asking which is the
last explained state-court judgment on the Miranda claim.  Obviously it is
not the second denial of habeas by the California Supreme Court; although
that was the last judgment, it said absolutely nothing about the reasons
for the denial.  The first denial of habeas by that court, on December 3,
1986, did cite (without any elaboration) two state cases, Swain and
Waltreus.  The former holds that facts relied upon in a habeas petition
must be alleged with particularity, and the latter that claims presented on
direct review ordinarily may not be relitigated on state habeas.  Even if
we knew that the court intended to apply both of these cases to the Miranda
claim (as opposed to the other claims raised by the same petition), that
would be irrelevant to the point before us here.  Respondent had exhausted
his Miranda claim by presenting it on direct appeal, and was not required
to go to state habeas at all, see Castille v. Peoples, 489 U. S. 346,
349-350 (1989); state rules against that superfluous recourse have no
bearing upon his ability to raise the Miranda claim in federal court.
Thus, although the California Supreme Court's denial of respondent's first
habeas petition to it was not utterly silent, neither was it informative
with respect to the question before us.
    The prior denials of respondent's state habeas petitions by the two
lower California courts were silent; and, as discussed above, the
discretionary denial of review on direct appeal by the California Supreme
Court is not even a "judgment."  Thus, the last state opinion on the
Miranda claim is that of the Court of Appeal on direct review, and that
opinion unequivocally rested upon a state procedural default.  We look
through the subsequent unexplained denials to that opinion, unless
respondent has carried his burden of adducing strong evidence that one of
the subsequent courts reached the merits of the federal claim.  He has not
done so.  He claims to be able to show that California habeas courts could
have allowed him to relitigate his Miranda claim, in spite of the ordinary
state rule barring relitigation of claims raised on direct appeal.  See, e.
g., Waltreus, 62 Cal. 2d, at 225, 397 P. 2d, at 1005.  But even if he
established that, to prove that they could do so is not to prove that they
did do so -- much less to prove that, having done so, they decided the
relitigated point on the merits rather than on the basis of the procedural
default relied upon in 1978.  Respondent has adduced nothing to show that
any California court actually reached the merits of his federal claim.  The
presumption that the California Supreme Court's last unexplained order did
not reach the merits, and that the bar of procedural default subsists, has
not been overcome.  Federal-court review of the claim is therefore barred
unless respondent can establish "cause and prejudice" for the default, see
Murray v. Carrier, 477 U. S., at 493, 495-496.  The District Court
specifically found no cause and prejudice, but since the Court of Appeals
had no occasion to review that holding we remand for that purpose.
    The judgment of the Court of Appeals is reversed, and the case is
remanded for further proceedings consistent with this opinion.
So ordered.












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1
    In fact he had.  The California Court of Appeal decision on direct
review shows that all claims, including the Miranda claim and the
ineffectiveness claim, were presented to and specifically addressed by that
court.  See App. 15, 17.  The District Court's mistake on this point was
apparently caused by respondent's own statement "that none of his claims
were [sic] raised by way of direct appeal."  App. 83.
2
    Petitioner also argues that in California original habeas corpus
jurisdiction is discretionary, so that denial of a petition is not a
"judgment," and the last state court "judgment" to which we should look is
that of the Court of Appeal on direct review.  Respondent concedes that a
discretionary denial of review cannot lift a pre-existing procedural bar,
and the federal courts are in accord.  See Goodwin v. Collins, 910 F. 2d
185, 187 (CA5 1990); Prihoda v. McCaughtry, 910 F. 2d 1379, 1382-1383 (CA7
1990).  Respondent denies, however, that California courts have any
discretion not to entertain habeas corpus petitions.  The state law on this
question is not clear, and we shall assume for purposes of this case that
respondent is right.  We also assume, since the point has not been argued,
that Miranda claims such as that raised by respondent are cognizable in
federal habeas corpus.  See Duckworth v. Eagan, 492 U. S. 195, 205-214
(1989) (O'Connor, J., concurring); cf. Stone v. Powell, 428 U. S. 465
(1976).
3
    The only common circumstance in which the presumption is unrealistic is
that in which the later state decision rests upon a prohibition against
further state review -- for example, an unexplained denial of state habeas
resting in fact upon a rule (such as petitioner contends exists in
California) preventing the relitigation on state habeas of claims raised on
direct appeal.  In that circumstance, even though the presumption does not
posit the real reason for the later denial, it does produce a result
("looking through" to the last reasoned decision) that is the correct one
for federal habeas courts.  Since a later state decision based upon
ineligibility for further state review neither rests upon procedural
default nor lifts a pre-existing procedural default, its effect upon the
availability of federal habeas is nil -- which is precisely the effect
accorded by the "look-through" presumption.