Whether a habeas petitioner’s claim has been “adjudicated on the merits” for purposes of 28 U.S.C. § 2254(d) where the state court denied relief in an explained decision but did not expressly acknowledge a federal-law basis for the claim.
The Court expressly limited the grant to the procedural issue recited above, even though the 9th granted habeas relief relating to dismissal of a juror mid-deliberations. As to the grant, note that the 7th seems to follow a rule similar to the one derived here by the 9th. Canaan v. McBride, 395 F.3d 376, 382-83 (7th Cir. 2005) (“When a state court is silent with respect to a habeas corpus petitioner’s claim, that claim has not been ‘adjudicated on the merits’ for purposes of § 2254(d).”) Why does this matter? Because, as the 7th explained more recently in Kerr v. Thurmer, deferential review under 28 U.S.C. § 2254(d) applies only when the state court has adjudicated the claim on the merits, 639 F.3d 315 (7th Cir. 2011) (“As Kerr’s plea bargain claim reaches us … the one thing that is clear is that no state court has squarely addressed the merits. In these circumstances, we review Kerr’s plea bargain claim under the pre-AEDPA standard of review set out in 28 U.S.C. § 2243. … Under that standard, … we review the petitioner’s constitutional claim with deference to the state court, but ultimately de novo.”). Given that the Court limits consideration to this purely procedural problem, it stands to reason that the Court will either affirm on the merits after agreeing with the 9th (and the 7th) on the point; or, if disagreeing, will vacate and remand for reconsideration of the underlying 6th amendment jury claim.
(Update: editing error in post corrected: “the 7th seems to follow a rule similar,” not contrary to, etc.)
