The U.S. Supreme Court has agreed to review two cases concerning the scope of death-row prisoners’ access to the federal courts in litigating the constitutionality of their convictions and sentences or the method by which states seek to execute them.

On January 14, 2022, the Court granted certiorari in Nance v. Ward and Shoop v. Twyford. Nance is a Georgia death penalty case concerning the process by which prisoners may bring challenges to state execution practices. Shoop is an Ohio death penalty case concerning the extent to which federal courts may issue orders permitting the development of evidence relevant to the investigation and presentation of a state prisoner’s habeas corpus petition.

The grants of review come as the Court is deciding appeals by Arizona prosecutors in Shinn v. Ramirez and Shinn v. v. Jones that seek to limit the evidence a federal court can consider in reviewing cases in which prisoners have been provided a series of ineffective lawyers in state court proceedings. The Supreme Court has ruled that a state prisoner may raise the issue of his trial lawyer’s ineffectiveness for the first time in federal court if the state denied him the opportunity to present the claim to the state courts by appointing a second ineffective lawyer to represent him in state post-conviction proceedings. Although conceding that the prisoner may raise his ineffectiveness claim for the first time in federal court, Arizona has asked the Court to ignore the evidence of ineffectiveness developed by federal habeas counsel and decide the issue based solely on the evidence ineffective counsel had presented in state court.

“How the Supreme Court addresses the issues in Nance, Shoop, and the Shinn cases will tell us a great deal about how seriously it is committed to fair process and meaningful federal review in death penalty cases,” Death Penalty Information Center Executive Director Robert Dunham said.

Nance v. Ward

Georgia’s law specifies that prisoners will be executed only by lethal injection. Because of medical conditions that have compromised his veins, prison authorities told Michael Nance that the execution team would have to “cut his neck” to establish an intravenous execution line. Nance filed a civil rights suit seeking to enjoin his execution by lethal injection, alleging that Georgia’s execution process would be “torturous” and would constitute cruel and unusual punishment in violation of the Eighth Amendment.

To comply with U.S. Supreme Court caselaw requiring prisoners to offer an alternative method for their own execution before courts will evaluate the constitutionality of the state’s chosen method, Nance proposed that he be executed by firing squad.

Civil rights suits have long been used as a vehicle for challenging the constitutionality of execution methods. In 2004, in Nelson v. Campbell, a death sentenced prisoner filed a civil rights lawsuit “alleg[ing] that the use of a ‘cut-down’ procedure to access his veins would violate the Eighth Amendment.” The U.S. Court of Appeals for the Eleventh Circuit dismissed his claim, saying it amounted to an attack on the constitutionality of his death sentence and therefore should have been filed as part of his habeas corpus challenge to his conviction and sentence. Because he had not done so, the court said, his civil rights claim was the “functional equivalent” of a second or successive habeas petition that was barred by the strict procedural rules applying to successor petitions.

The U.S. Supreme Court unanimously reversed, holding the federal civil rights law “is an appropriate vehicle for [an] Eighth Amendment claim seeking a temporary stay and permanent injunctive relief” against execution by an unconstitutional method.

In Nance’s case, the Eleventh Circuit ruled that because Georgia did not authorize execution by firing squad, his challenge to lethal injection was effectively an attack on whether he could be executed at all. As it did in Nelson, the court held both that Nance had been required to raise his claim via a habeas corpus petition and that the claim was not entitled to review under the rules applying to successive petitions. The decision created a split among the circuit courts, with the Eleventh Circuit saying that prisoners who offer an alternative execution method that is not authorized by state law must file their execution challenge via a habeas corpus petition and the U.S. Court of Appeals for the Sixth Circuit holding that an execution-method challenge must be brought via a civil rights suit, even where a prisoner asserts that all methods of execution authorized under state law are unconstitutional.

Supported by a friend-of-the-court brief by legal scholars and academics, Nance asked the Court to settle the appropriate route for bringing a method of execution challenge, and to determine, if such challenges must be made through the habeas corpus process, whether they are subject to the strict procedural rules for bringing successive petitions.

Shoop v. Twyford

In Shoop, Ohio prosecutors challenged a federal district court order granting death-row prisoner Raymond Twyford’s request for a court order directing the Ohio Department of Rehabilitation and Correction to transport him to a hospital for neurological testing that could provide evidence to support his habeas corpus petition.

A victim of severe abuse, including rape, during his childhood, Twyford attempted suicide at age 13. He survived, but 20 bullet fragments from the attempt lodged in his brain. His trial counsel failed to investigate and develop evidence of his neurological impairments. In his federal habeas corpus appeal, his lawyers sought a neurological evaluation to support a number of claims in his habeas petition related to Twyford’s mental competence and the ineffective assistance of his trial counsel. The neurologist who examined him in the prison recommended he undergo additional testing and brain imaging that could not be performed in the prison. Twyford sought and was granted a district court order directing the prison to transport him, finding that further neurological imaging would aid counsel’s investigation and help the court assess the constitutionality of Twyford’s conviction.

The prison argued that the court did not have jurisdiction to order the transport because the federal habeas corpus statute “allows federal courts to issue a writ of habeas corpus ordering the transportation of a state prisoner only if ‘necessary to bring him into court to testify or for trial.’” That specific authority to transport, the state argued, imposed a limit on the general powers of district courts conveyed by the federal All Writs Act, which provides federal courts the authority to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”

The U.S. Court of Appeals for the Sixth Circuit affirmed the district court’s order, holding that the All Writs Act empowered the court “to order the state to transport a habeas petitioner for medical imaging in aid of its habeas jurisdiction.” The appeals court found that the affirmative statutory authority to transport prisoners to and from court did not limit the court from issuing other appropriate orders under the All Writs Act and that the court’s transport order was consistent with congressional intent to provide resources necessary for counsel for capital habeas petitioners.

The state also objected to permitting Twyford to develop new facts in federal court, arguing that he should be limited to the state court record. It asked the Supreme Court to determine whether, “before a court grants an order allowing a habeas petitioner to develop new evidence, it must determine whether the evidence could aid the petitioner in proving his entitlement to habeas relief, and whether the evidence may permissibly be considered by a habeas court.”


Jordan S. Rubin, Justices to Hear Execution-Alternatives Case Over Lawsuit Rules, Bloomberg Law, January 14, 2022; Ronald Karls, SCOTUS adds five more cas­es to Spring 2022 dock­et, Jurist, January 162022.

Read the briefs filed in Nance v. Ward and Shoop v. Twyford.