Visciotti v Martel, 2016 U.S. App. LEXIS 18579 (9th Cir. Oct. 17, 2016) (Berzon (who wrote the unanimous panel opinion) and Pregerson, concurring):

Not surprisingly, I join the principal opinion in full. I write separately to emphasize one point: This case illustrates that Supreme Court summary reversals cannot, and do not, reflect the same complete understanding of a case as decisions after plenary review. Relying on broad language in such decisions ... is an obligation of intermediate courts of appeals. But fulfilling that obligation does not require that we blinker reality by pretending that the summary reversal entailed full consideration of the issues covered by the language of the Supreme Court opinion issued.

At the certiorari stage, the parties' submissions are -- quite properly -- not designed comprehensively to inform the Court about the merits of a case. The Supreme Court's Rules explain that petitions [*55]  for certiorari "will be granted only for compelling reasons," including when (1) the decision below conflicts with the decisions of federal courts of appeals or state courts of last resort on an "important matter" or "an important federal question"; (2) the decision conflicts with a Supreme Court decision on an "important question of federal law"; and (3) when the lower court "decide[s] an important question of federal law that has not been, but should be, settled by th[e] Court." S. Ct. R. 10.

Both scholarly articles and Supreme Court practice guides suggest that petitioners will encounter greater success at the petition for certiorari stage when they emphasize "certworthy" aspects of the decision below, such as the presence of a circuit conflict or the national importance of an issue, rather than their legal and factual arguments on the merits. See Stephen M. Shapiro et al., Supreme Court Practice, ch. 4.17, at 278 (10th ed. 2013). Whether the decision below conflicts with decisions of other courts appears to be the paramount factor at the certiorari stage. Scholars have estimated that "seventy percent of Court's plenary docket is devoted to addressing legal issues on which lower courts have differed, [*56]  and law clerks and Justices alike have acknowledged that ensuring uniformity is a driving force in case selection." Amanda Frost, Overvaluing Uniformity, 94 Va. L. Rev. 1567, 1569 (2008); David R. Stras, The Supreme Court's Gatekeepers: The Role of Law Clerks in the Certiorari Process, 85 Tex. L. Rev. 947, 982 (2007) (collecting data from 2003 to 2005 terms).¹ "Most of the rest are cases that involve no conflict among lower courts but present contentious legal issues of great national significance." Robert M. Yablon, Justice Sotomayor and the Supreme Court's Certiorari Process, 123 Yale L.J. Forum 551, 561 (2014).

1   See also Supreme Court Practice, ch. 4.3, at 241 (providing data about the 1993 term); Kevin H. Smith, Certiorari and the Supreme Court Agenda: An Empirical Analysis, 54 Okla. L. Rev. 727, 747 (2001) ("[S]tatistical analysis suggests that the Supreme Court is more likely to grant certiorari if the petition for a writ of certiorari contains an allegation of a conflict with Supreme Court precedent or contains an allegation of a conflict between two or more federal circuit courts of appeals than if such a claim of conflict is absent.") (footnotes omitted); Robert M. Lawless & Dylan Lager Murray, An Empirical Analysis of Bankruptcy Certiorari, 62 Mo. L. Rev. 101, 133 (1997) (concluding that "the existence and depth [*57]  of a circuit conflict is important when the Court decides whether to grant [certiorari] in a bankruptcy case"); Kevin Russell, Commentary: Writing a Convincing Cert. Petition When There is No Direct Circuit Split, SCOTUSblog (May 17, 2007), available at http://www.scotusblog.com/2007/05/commentary-writing-a-convincing-cert-petition-when-there-is-no-direct-circuit-split/ .

Practice guides and other secondary sources recommend that petitioners specifically avoid describing the merits of a case in too great detail, so as not to dissuade the Court from perceiving the certiorari petition merely as a request for "error correction." Quoting Justice Vinson, the authoritative guide to Supreme Court practice explains: "Lawyers might be well-advised, in preparing [certiorari petitions] to spend a little less time discussing the merits of their cases and a little more time demonstrating why it is important that the Court should hear them." Supreme Court Practice, ch. 6.31(a), at 479.² Similarly, as successful briefs in opposition to certiorari are in many respects "the mirror image of an effective [certiorari] petition," demonstrating that "the decision below was right . . . is definitely a secondary argument" at best. Stewart A. Baker, A Practical Guide to Certiorari, 33 Cath. U. L. Rev. 611, 627, 629 (1984); see also Supreme Court Practice, ch. 512(c), [*58]  at 355 ("The merits of the decision below are not among the ceritorari considerations of Rule 10 . . . [n]either the petition nor the brief in opposition is designed to be a brief on the merits."). As Justice Stevens explained:

   The most helpful and persuasive petitions for certiorari to this Court usually present only one or two issues, and spend a considerable amount of time explaining why those questions of law have sweeping importance and have divided or confused other courts. Given the page limitations that we impose, a litigant cannot write such a petition if he decides, or is required, to raise every claim that might possibly warrant reversal in his particular case.

O'Sullivan v. Boerckel, 526 U.S. 838, 858 (1999) (Stevens, J., dissenting).

2   Accord Timothy S. Bishop, Jeffrey W. Sarles & Stephen J. Kane, Tips on Petitioning for and Opposing Certiorari in the U.S. Supreme Court, Litigation, Winter 2008 ("It is crucial to temper the natural instinct to focus on defending or attacking the lower court's decision on the merits."); Scott L. Nelson, Getting Your Foot in the Door: The Petition for Certiorari, Public Citizen Litigation Group, available at https://www.citizen.org/documents/GettingYourFootintheDoor.pdf ("[Y]ou don't want your merits argument to suggest that your principal goal is error correction as opposed [*59]  to the presentation of an important issue requiring the Court's review.").

It comes as no surprise, then, that parties do not -- indeed, should not -- fully develop their merits arguments in certiorari-stage briefing. See Supreme Court Practice, ch. 6.31(c), at 484 ("The attempt to show error below . . . should not be a long, full-dress argument such as would be proper in the brief on the merits."). Normally, of course, this omission raises no concerns; if the Court grants certiorari, the parties will be afforded substantial opportunity to explain their positions in their merits-stage briefing and at oral argument. But when the Court issues a summary reversal, without the benefit of merits-stage briefing or oral argument, it necessarily decides the case based on the limited presentation and arguments raised in the certiorari-stage briefing.

Such was the case here. As the principal opinion explains, in their certiorari-stage briefing in Visciotti IV, neither the State nor Visciotti raised the particular IAC claims now at issue in this appeal, nor did either explain that further issues could be litigated on remand. Instead, the State's petition for certiorari contested, and Visciotti's brief [*60]  in opposition defended, our previous conclusion that the California Supreme Court's Strickland prejudice determination was contrary to or an unreasonable application of established federal law for particular reasons, in violation of 28 U.S.C. § 2254(d)(1). Thus, the Supreme Court never had before it the questions whether (1) the California Supreme Court's assumption that Cusack's testimony would have been before the jury regardless of any ineffective assistance of counsel constitutes an "unreasonable determination of the facts" under 28 U.S.C. § 2254(d)(2); and (2) the cumulative effect of Agajanian's IAC during both the guilt and penalty phases of trial prejudiced Visciotti at the penalty phase.

That Visciotti did not raise these claims was not an oversight or poor lawyering. His "opposition to the [State's] petition for certiorari understandably focuse[d] on arguments for denying certiorari." United States v. Hollywood Motor Car Co., 458 U.S. 263, 271 (1982) (Blackmun, J., dissenting).

Nevertheless, at the end of its summary reversal, the Court held broadly that "[h]abeas relief is . . . not permissible under § 2254(d)." Visciotti IV, 537 U.S. at 27. Today, we conclude that this language precludes our review of Visciotti's present IAC claims. In so concluding, our opinion simply reflects, as in Williams v. Johnson, 720 F.3d 1212 (9th Cir. 2013), judgment vacated, 134 S. Ct. 2659 (2014), what the Court actually encompassed [*61]  in its broad language. And, as appears to have been the case in Williams, that breadth may have been inadvertent.

My concern is that "[t]he Court's decisionmaking process at the certiorari stage is fundamentally different from traditional judicial decisionmaking." Margaret Meriwether Cordray & Richard Cordray, Strategy in Supreme Court Case Selection: The Relationship Between Certiorari and the Merits, 69 Ohio St. L.J. 1, 3 (2008). Summary reversals, which are the product of such a decisionmaking process, are also fundamentally different from traditional judicial opinions, as they issue without the benefit of fully developed, adversarial legal argument. As a result, what these decisions say about the broader merits of a case may not reflect the interwoven legal issues and arguments omitted from the parties' certiorari-stage briefing. And so, Justice Blackmun observed, by deciding unraised claims and questions "without briefing or argument, . . . the Court's summary disposition [can] deprive[] respondents of their 'day in court.'" Hollywood Motor, 458 U.S. at 271-72 (Blackmun, J., dissenting).

As the principal opinion recognizes, the Court's summary per curiam reversals are no less binding upon us than the authored opinions issued after full briefing [*62]  and argument. Visciotti IV therefore requires that we deny habeas relief on Visciotti's present IAC claims, even though the substance of such claims were never presented to the Court and were almost surely not actually considered.

In Williams, the Supreme Court corrected the apparently inadvertent overreach of its original opinion by reversing our second opinion without comment. Williams v. Johnson, 134 S. Ct. 2659 (2014). Notably, Williams was neither a capital case nor one in which the Supreme Court's first decision was a summary reversal. Here, a person's life is at stake, and the Court proceeded without following its plenary processes. If a second certiorari petition is filed, as I expect it will be, I fully anticipate that, as in Williams, the Court will look closely at whether it meant to reject the quite colorable issues raised before us on remand, never alluded to in our prior opinion or in the papers filed in the Supreme Court, with regard to whether certiorari should be granted.