              Case: 13-12034     Date Filed: 04/10/2020    Page: 1 of 10



                IN THE UNITED STATES COURT OF APPEALS
                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                 No. 13-12034
                           ________________________

                       D.C. Docket No. 3:09-cv-00074-WSD


FREDERICK R. WHATLEY,
                                                            Petitioner-Appellee
                                                            Cross Appellant,
                                        versus

WARDEN, GEORGIA DIAGNOSTIC
AND CLASSIFICATION CENTER,
                                                            Respondent-Appellant
                                                            Cross Appellee.
                           ________________________

                      Appeals from the United States District
                     Court for the Northern District of Georgia
                           ________________________


Before ED CARNES, Chief Judge, WILSON, WILLIAM PRYOR, MARTIN,
JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT,
LUCK, and LAGOA, Circuit Judges.

BY THE COURT:

      A petition for rehearing having been filed and a member of this Court in

active service having requested a poll on whether this case should be reheard by

the Court sitting en banc, and a majority of the judges in active service on this
              Case: 13-12034    Date Filed: 04/10/2020   Page: 2 of 10



Court having voted against granting a rehearing en banc, it is ORDERED that this

case will not be reheard en banc.
                Case: 13-12034        Date Filed: 04/10/2020        Page: 3 of 10



MARTIN, Circuit Judge, dissenting from the denial of rehearing en banc:

       Frederick R. Whatley is a prisoner on death row in Georgia. A panel of the

court denied his federal habeas petition. Whatley v. Warden, 927 F.3d 1150 (11th

Cir. 2019). I asked the full court to rehear Mr. Whatley’s case en banc, because I

believe the panel opinion applied the wrong legal standard in deciding whether,

under 28 U.S.C. § 2254(d),1 to defer to the Georgia Supreme Court’s denial of Mr.

Whatley’s claim that his counsel was ineffective during the penalty phase of his

trial. This court is bound by the rule pronounced by the Supreme Court in Wilson

v. Sellers, 584 U.S. ___, 138 S. Ct. 1188 (2018), as well as our own precedent in

Meders v. Warden, 911 F.3d 1335 (11th Cir. 2019). This precedent requires our

court to review “the specific reasons given by the state court” for denying the

petitioner’s claim “and defer[] to those reasons if they are reasonable.” Wilson,

138 S. Ct. at 1192; see also Meders, 911 F.3d at 1349. The panel’s analysis in

Whatley conflicts with this precedent by suggesting that federal courts may look

beyond the reasons a state court gives for denying habeas relief. See 927 F.3d at

1182. I believe this court should hear this case en banc, in order to fix the panel’s

departure from established law, and make clear the standard for assessing the

reasonableness of a state court’s rationale, which limits us to the specific reasons



       1
           This statute is a part of the Antiterrorism and Effective Death Penalty Act of 1996. I
refer to it as AEDPA.
              Case: 13-12034     Date Filed: 04/10/2020    Page: 4 of 10



given by the court. I dissent from the court’s decision to let the Whatley panel

opinion stand.

      Whatley begins by correctly articulating the § 2254(d) analysis:

      When a district court reviews a state court’s decision under AEDPA, it
      must first consider the claim as it was presented to the state court. Next,
      it considers the state court’s decision. If the state court applied the
      correct Supreme Court precedent . . . the district court decides whether
      the state court applied the Supreme Court precedent unreasonably. The
      district court also considers whether the state court’s decision was
      based on an unreasonable determination of the facts.

Whatley, 927 F.3d at 1181 (citations omitted). However, at three points in its

analysis, the Whatley opinion suggests that the actual reasons a state court

gives for denying habeas relief play a minimal role in the federal habeas

court’s decision to defer to the state court’s ruling. First, Whatley says “under

[§ 2254(d)], we’re most concerned with the reviewing [state] court’s ultimate

conclusion, not the quality of its written opinion.” Id. at 1177 (quotation

marks omitted). It continues by saying “our review is not limited to the

reasons the [state] Court gave in its analysis.” Id. at 1178. Third, it says “we

are not limited to the reasons the [state] Court gave and instead focus on its

ultimate conclusion.” Id. at 1182 (quotation marks omitted). The Whatley

opinion concludes its recitation of the legal standard by saying this Court

“must ‘determine what arguments or theories could have supported the state
              Case: 13-12034     Date Filed: 04/10/2020   Page: 5 of 10



court’s decision.’” Id. (first emphasis added and alteration adopted) (quoting

Harrington v. Richter, 562 U.S. 86, 102, 131 S. Ct. 770, 786 (2011)).

      These statements conflict with precedent that binds federal judges in

deciding the extent to which we defer to a state court’s decision during our review

of those decisions on federal habeas review. See 28 U.S.C. § 2254(d). The

Supreme Court set the rule that must govern our § 2254(d) deference analysis in

Wilson v. Sellers, 138 S. Ct. 1188, and this Court applied that rule in Meders v.

Warden, 911 F.3d 1335. Neither Wilson nor Meders is cited anywhere in the

Whatley opinion.

      Section 2254(d) bars federal courts from issuing a writ of habeas corpus to a

state prisoner on any claim adjudicated on the merits in state court unless the state

court’s decision “was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United

States” or “was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). Section

2254(d) sets a high (although not insurmountable) bar. Williams v. Taylor, 529

U.S. 362, 402–13, 120 S. Ct. 1495, 1518–23 (2000). Where the last state court to

address the prisoner’s claims issued a reasoned decision, the Supreme Court tells

us that the deference analysis is a “straightforward inquiry.” Wilson, 138 S. Ct. at

1192. We are to “simply review[] the specific reasons given by the state court and
                Case: 13-12034        Date Filed: 04/10/2020       Page: 6 of 10



defer[] to those reasons if they are reasonable.” Id. “Deciding whether a state

court’s decision involved an unreasonable application of federal law or was based

on an unreasonable determination of fact requires the federal habeas court to train

its attention on the particular reasons—both legal and factual—why the state courts

rejected a state prisoner’s federal claims.” Id. at 1191–92 (quotation marks

omitted).

       The deference analysis set forth in Whatley cannot be squared with the

Supreme Court’s rule stated in Wilson. Indeed, Whatley makes no effort to square

them. Yet, Wilson made clear that it is not proper for federal judges to try and

come up with any rationale that could have supported the state court’s decision.

Instead, we must defer to the specific reasons given by the state court, so we must,

in turn, focus on the particular reasons the state court gave.

       I recognize that Wilson was decided in a different procedural posture than

that presented by Mr. Whatley’s case.2 But that does not change Wilson’s mandate

that our court’s decision about whether to give AEPDA deference to a state court




       2
          Wilson held that federal courts “should ‘look through’ [an] unexplained [state court]
decision to the last related state-court decision that does provide a relevant rationale” and then
“presume that the unexplained decision adopted the same reasoning.” 138 S. Ct. at 1192.
Federal courts must decide whether to defer based on the reasons given by the last state court to
issue a reasoned decision. Id. at 1195–96. Here, the last state court to address Mr. Whatley’s
claims was the Georgia Supreme Court, so there is no need to rely on Wilson’s “look through”
presumption. See generally Whatley v. Terry, 668 S.E.2d 651 (Ga. 2008).
              Case: 13-12034      Date Filed: 04/10/2020    Page: 7 of 10



ruling must be based on the reasons the state court gave, as opposed to whatever

reason a federal court can come up with.

      The Whatley opinion also ignores this Court’s precedent that reinforces the

Wilson analysis. Since Wilson, this court has consistently looked to the specific

reasons the last reasoned state-court decision gave and examined whether those

reasons merit AEDPA deference. See, e.g., Meders, 911 F.3d at 1349 (“Deciding

whether a state court’s decision involved an unreasonable application of federal

law requires the federal habeas court to train its attention on the particular

reasons—both legal and factual—why state courts rejected a state prisoner’s

federal claims, and to give appropriate deference to that decision.” (citation

omitted and alteration adopted)); see also Hawthorne v. Sec’y, Dep’t of Corr., 786

F. App’x 896, 899 (11th Cir. 2019) (per curiam) (unpublished) (“Wilson informs

our analysis.”); Junes v. Fla. Dep’t of Corr., 778 F. App’x 639, 641 (11th Cir.

2019) (per curiam) (unpublished) (“The district court must consider the particular

factual and legal reasons that the state court rejected the prisoner’s federal

claims.”); Johnson v. Sec’y, Dep’t of Corr., 737 F. App’x 438, 441 (11th Cir.

2018) (per curiam) (unpublished) (explaining standard set forth in Wilson v.

Sellers). Our prior precedent rule required the Whatley panel to follow Meders.

See United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (“[A] prior

panel’s holding is binding on all subsequent panels unless and until it is overruled
              Case: 13-12034      Date Filed: 04/10/2020   Page: 8 of 10



or undermined to the point of abrogation by the Supreme Court or by this court

sitting en banc.”). But it did not.

      I agree with the Whatley opinion when it says the Georgia Supreme Court

did not have to walk through every step of a “hypothetical retrial” of Mr.

Whatley’s penalty phase. Whatley, 927 F.3d at 1182. It is not my purpose to

suggest the Georgia court must take this walk. I know that Wilson does not mean

that federal judges must (or even may) “flyspeck” the state court decision. Meders,

911 F.3d at 1349. But it does mean that “we are to focus not merely on the bottom

line ruling of the decision but on the reasons, if any, given for it.” Id. The

Whatley majority said it was not required to do as Meders instructs. Thus, it

promotes an incorrect statement of law.

      The Whatley majority looks mainly to Harrington v. Richter, 562 U.S. 86,

131 S. Ct. 770 (2011), and Gill v. Mecusker, 633 F.3d 1272 (11th Cir. 2011). See

927 F.3d at 1182. But Richter never advocates that federal judges look only to the

state court’s resolution of the case, as opposed to its reasoning. In Richter, the

Supreme Court held that AEDPA deference applies even when the state court gives

no reasons for its decision. 562 U.S. at 98, 131 S. Ct. at 784 (“Where a state

court’s decision is unaccompanied by an explanation, the habeas petitioner’s

burden still must be met by showing there was no reasonable basis for the state

court to deny relief.”). Nevertheless, Richter does not tell us to look beyond the
              Case: 13-12034     Date Filed: 04/10/2020    Page: 9 of 10



reasons the state court actually gave. Nor does it license federal judges to invent

any reason that could support the state court’s resolution of the case. Rather, it

established a presumption that a state court adjudicated a claim on the merits when

it gives no other reason for its decision. Id. at 98–99, 131 S. Ct. at 784–85.

Richter recognized that this “presumption may be overcome when there is reason

to think some other explanation for the state court’s decision is more likely.” Id. at

99–100, 131 S. Ct. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.

Ct. 2590, 2594 (1991)). In Wilson, the Court reiterated that this presumption is

overcome where an earlier state court decision sets forth reasons. 138 S. Ct. at

1195–96. Wilson told us we must presume the unexplained state court decision

relied on the same rationale as the last reasoned opinion, absent some reason to

think otherwise. Id. And it told us to look to the reasons the state court gave, not

those we think up ourselves. Id. Finally, if it is true that Gill reads Richter as

requiring us to focus on the state court’s conclusion to the exclusion of its

rationale, see Gill, 633 F.3d at 1290–91, then Gill has been “undermined to the

point of abrogation by the Supreme Court,” because of the Wilson decision. See

Archer, 531 F.3d at 1352.

      I dissent from the denial of rehearing en banc because as written, Whatley

contains an incorrect statement of law. I believe the Whatley opinion requires our

en banc court to make clear that this court’s evaluation of the reasonableness of the
              Case: 13-12034     Date Filed: 04/10/2020    Page: 10 of 10



Georgia Supreme Court’s rationale in denying Mr. Whatley relief must be limited

to the specific reasons that court gave, and that it is improper for our court to

supply its own. I dissent from the court’s vote declining to rehear Mr. Whatley’s

case.
