Nunnemaker murdered his wife.  He claimed diminished capacity.  He was interviewed by a psychiatrist, and statements from that interview were introduced at trial.  On appeal, he claimed for the first time that he should have been given Miranda warnings before the interview.  The Court of Appeal affirmed with an opinion, explaining that under well-established California law that objection must be raised at trial or else is defaulted.

Nunnemaker filed habeas corpus petitions successively in the Superior Court, Court of Appeal, and Supreme Court.  California still follows the practice, once common but now unique in the nation rare, that denials of habeas corpus are not appealable but the prisoner files a new petition in the higher court to get a de facto review of his case.  These petitions were all denied without opinions.

This was all before Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).  The peculiar law at the time was that prisoners either got two reviews of the merits of their cases or none.  If the state court denied on the merits, the federal court would re-examine the merits from scratch.  If the state court denied on procedural default and did not consider the merits, the federal court would not either.  In order to free as many criminals as possible, the Ninth Circuit went to great lengths to find that the California courts had denied cases on the merits.  (Since enactment of AEDPA and the "deference" rule, the Ninth seems to be less keen to find that cases were decided on the merits in state court.)

So, because Nunnemaker's habeas petitions were denied in unexplained orders, the Ninth said it would presume they were denied on the merits and it would proceed to the merits itself.  No, said the Supreme Court, that's not how courts work in the real world.  When a defendant gets one full opinion on his case and then repeatedly raises the same issue with petition after petition, those later rejections are typically based on the view that the first court got it right (bold face added):

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 primarily upon federal law," Coleman, ante at 501 U. S. 740, 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 [*804] 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

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 preexisting procedural default, its effect upon the availability of federal habeas is nil -- which is precisely the effect accorded by the "look-through" presumption.

In Hittson v. Chatman, No. 14-8589, Justice Ginsburg, joined by Justice Kagan, today concurred in the denial of certiorari.

In this case, the Eleventh Circuit decided that it would no longer apply the Ylst "look through" presumption--at least when assessing the Georgia Supreme Court's unexplained denial of a certificate of probable cause to appeal. Although it had long "'look[ed] through' summary decisions by state appellate courts," the Eleventh Circuit believed that a recent decision of this Court--Harrington v. Richter, 562 U. S. 86 (2011)--had superseded Ylst. Hittson v. GDCP Warden, 759 F. 3d 1210, 1232, n. 25 (2014). Accordingly, instead of "review[ing] the reasoning given in the [last reasoned state court] decision," the Eleventh Circuit held it would consider hypothetical theories that could have supported the Georgia Supreme Court's unexplained order. Ibid.

The Eleventh Circuit plainly erred in discarding Ylst. In Richter, the only state court to reject the prisoner's federal claim had done so in an unexplained order. See 562 U. S., at 96-97. With no reasoned opinion to look through to, the Court had no occasion to cast doubt on Ylst. To the contrary, the Court cited Ylst approvingly in Richter, id., at 99-100, and did so again two years later in Johnson v. Williams, 568 U. S. __, __, n. 1 (2013) (slip op., at 6, n. 1).

I am inclined to agree.  For my own part, for what it's worth, I certainly didn't think I was undoing CJLF's work in Nunnemaker when I wrote my brief in Richter.  I doubt anyone at the California Attorney General's office thought so either.  The question was not presented.

Justice Ginsburg nonetheless concurs in denial of certiorari because the District Court got it right when it did "look through" to the state superior court opinion, and it all comes out the same in the end.  Hittson's death sentence stands.

Denial of certificate of probable cause to appeal without an opinion means that while the higher court may not agree with every word of the lower court's opinion, that court basically got it right and there is no good reason to take the case up for full briefing and argument.  The federal court should treat the lower court's opinion as the outcome of the state judicial process and go from there.

One more "for what it's worth":  Back when we were briefing Ylst v. Nunnemaker, I was told by a California Correctional Officer that Warden Eddie Ylst pronounced his name like "aisle" (or "isle" or "I'll").  I also think it is good practice to short-cite habeas cases by the name of the petitioner regardless of which name is first in the Supreme Court, as the wardens' names tend to change over the course of the case, so I call the case Nunnemaker.