While most of the legal community has focused on the substance of the recent U.S. Supreme Court decision in Foster v. Chatman, 578 U.S. ___ (May 23, 2016) (No. 14-8349) (something to do with cluttering up attorney files with notes on jury selection), the Cockle Blog is all over the Court’s procedural focus in that case.
A couple of weeks before the decision, we had anticipated Foster with some head scratching about why the Court had spent half of the argument time grilling attorneys about which state court should receive the writ of certiorari, should one issue.
We zoomed in on that side issue because every petition we print for attorneys and pro se petitioners is required to name the appropriate lower state or federal court on the cover.
We pointed out that petitions burbling up in the federal system are easy in this respect, as federal courts of appeals have to address the merits of the case.
But we cautioned prospective petitioners that naming the right state court might require research into state appellate rules to get the court designation right.
That is because the Court treats a state’s highest court’s denial of discretionary review as no more than a trigger for the 90 days allowed to file a certiorari petitions — not as the decision the Court is being asked to review. The writ must go to the highest state court that actually made the decision on the merits that is under scrutiny, so the cover must name that court rather than a higher one which simply waved the case away without considering the merits.
The Foster decision explained in footnote 2 why it issued the writ to the Georgia Supreme Court, which had denied (without explanation) an application for a certificate of probable cause to appeal, rather than to the county superior court that had issued an opinion fully examining the merits of the habeas petition. The discussions in oral argument brought out the statutory basis for the Georgia Supreme Court’s discretionary review authority in a habeas case. But footnote 2 of the decision focused on the state appellate rule saying such a certificate “will be issued where there is arguable merit.”
In the context of that state court rule, the U.S. Supreme Court reasoned that deciding there is “no arguable merit” is itself a decision on the merits, in the absence of some “positive assurance” that the denial actually was a matter of discretion. And so the Court construed the petition as “seeking review of the Georgia Supreme Court’s order denying” a certificate of probable cause.
In oral argument, the late Justice Scalia asked whether reversing the Georgia Supreme Court would merely tell it “you’re wrong; there is an arguable basis for your accepting review. So we ought to remand to that court, requiring them to accept review, it would seem to me.”
The Court did remand to the state supreme court, but not to tell it merely to address the merits. The high court went ahead and decided the merits, thoroughly picking through the evidence to find discriminatory intent where the state habeas court had not. While the remand does not tell the state’s top court what to do, it does require further proceedings consistent with the Supreme Court’s opinion.
What does this mean for future petitioners picking which court to name on the cover? The message remains that it is necessary to take into account the state’s appellate statutes and rules to select the highest state court that addressed the merits (if only to find a lack of merits), while a totally discretionary denial of review does not qualify a court as a target for a certiorari petition.