90-68 -- CONUR v. NUNNEMAKER

No. 90-68

S. YLST, WARDEN, PETITIONER v. OWEN DUANE NUNNEMAKER

[June 24, 1991]

Justice White, concurring.

I join the opinion and judgment of the Court but add these few words. Had the Court of Appeals stated that as a mat- ter of state law, the State Supreme Court's summary, unex- plained denial of an original petition for habeas corpus is a ruling on the merits, the presumption the Court's opinion articulates in this case would be rebutted unless we dis- agreed with the Court of Appeals with respect to state law. The Court of Appeals, however, did not so state but in effect said that the state court's order was ambiguous. Hence, the presumption governs.

I also note that Coleman v. Thompson, --- U. S. --- , --- (1991), stated that the presumption of Harris v. Reed, 489 U.S. 255 (1989), "applies only when it fairly appears that a state court judgment rested primarily on federal law or was interwoven with federal law, that is, in those cases where a federal court has good reason to question whether there is an independent and adequate state ground for the decision." In joining the Court's opinion in the case before us, I take it that the opinion's bobtailed quotation from Coleman, ante, at 4, is not intended to restrict the reach of the presumption.