Opinions of the Court

SEARS v. UPTON, No. 09 – 8858

Cert. grant­ed, judg­ment vacat­ed, and remand­ed June 29, 2010 (per curiam)

On June 29, the U.S. Supreme Court returned a death penal­ty case to the Georgia Supreme Court to recon­sid­er whether the fail­ures of the defen­dan­t’s lawyer prob­a­bly affect­ed the sen­tence he received. Demarcus Sears was sen­tenced to death in 1993 for the mur­der of a woman in Cobb County. Sears’ attor­neys attempt­ed to con­vince jurors to spare his life by say­ing that he came from a sta­ble and lov­ing fam­i­ly who would be dev­as­tat­ed if he received the death penal­ty. However, the defense lawyers failed to con­duct an ade­quate inves­ti­ga­tion of Sears’ child­hood. They neglect­ed to show that his par­ents had been in a phys­i­cal­ly abu­sive rela­tion­ship, that he was sex­u­al­ly abused and inap­pro­pri­ate­ly dis­ci­plined. By the time Sears reached high school, he was ​“described as severe­ly learn­ing dis­abled and as severe­ly behav­ioral­ly hand­i­capped.” One expert deter­mined he was among the ​“most impaired indi­vid­u­als in the pop­u­la­tion” as a result of sig­nif­i­cant frontal lobe brain dam­age. Although a low­er court in Georgia found the defense attor­neys con­duct to be faulty, it con­clud­ed that the mit­i­gat­ing evi­dence that was not pre­sent­ed would not have made a dif­fer­ence. The U.S. Supreme Court held that the evi­dence ​“might well have helped the jury under­stand Sears and his hor­ren­dous acts .…” The Court grant­ed cer­tio­rari, vacat­ed the judg­ment below, and ordered Georgia to recon­sid­er the pos­si­ble prej­u­dice to Sears from the inef­fec­tive rep­re­sen­ta­tion ren­dered by his lawyers, espe­cial­ly in light of oth­er Supreme Court deci­sions where attor­neys failed to con­duct a thorough investigation.

The Court con­clud­ed, ​“A prop­er analy­sis of prej­u­dice under Strickland would have tak­en into account the new­ly uncov­ered evi­dence of Sears’ ​‘sig­nif­i­cant’ men­tal and psy­cho­log­i­cal impair­ments, along with the mit­i­ga­tion evi­dence intro­duced dur­ing Sears’ penal­ty phase tri­al, to assess whether there is a rea­son­able prob­a­bil­i­ty that Sears would have received a dif­fer­ent sen­tence after a con­sti­tu­tion­al­ly suf­fi­cient mit­i­ga­tion inves­ti­ga­tion.” Chief Justice Roberts and Justice Alito would not have grant­ed cer­tio­rari. Justices Scalia and Thomas dis­sent­ed from the Court’s deci­sion to send the case back for reconsideration.

(B. Rankin, ​“Supreme Court says Cobb death case needs anoth­er look,” Atlanta Journal Constitution, June 30, 2010)

JEFFERSON v. UPTON, No. 09 – 8852

Cert. grant­ed and decid­ed May 24, 2010 (per curiam)

On May 24, the U.S. Supreme Court reversed a deci­sion by the U.S. Court of Appeals for the Eleventh Circuit, there­by giv­ing the defen­dant anoth­er chance to show that his tri­al coun­sel was con­sti­tu­tion­al­ly inef­fec­tive. Lawrence Jefferson was sen­tenced to death in Georgia, despite the fact that he had suf­fered seri­ous head injuries as a child. In an appeal in state court, he claimed that his attor­ney failed to inves­ti­gate this ear­ly trau­ma. The state court reject­ed this claim, and asked the pros­e­cu­tors to draw up an opin­ion deny­ing the appeal. The court then issued the opin­ion ver­ba­tim with­out giv­ing the defense a chance to inter­vene. The Eleventh Circuit gave great def­er­ence to the state court’s deci­sion and upheld the death sen­tence. The U.S. Supreme Court held that the Court of Appeals failed to ade­quate­ly con­sid­er whether Jefferson had been afford­ed a fair hear­ing in state court. The Court held that the Court of Appeals only con­sid­ered one of the eight excep­tions to the usu­al def­er­ence giv­en state court find­ings. As with a num­ber of cap­i­tal cas­es this term, the Supreme Court grant­ed cer­tio­rari and ren­dered its deci­sion the same day, with­out oral argu­ment or a signed opin­ion. Justices Scalia and Thomas dis­sent­ed from the per curiam opinion.

Question pre­sent­ed: Whether the major­i­ty opin­ion, in afford­ing tri­al counsel’s deci­sion to lim­it the scope of inves­ti­ga­tion in a death penal­ty case ​‘high­er-than-strong pre­sump­tion of rea­son­able­ness’ con­flicts with this Court’s prece­dent as announced in Williams v. Taylor, Wiggins v. Smith, Rompilla v. Beard, and Porter v. McCollum.

MAGWOOD v. CULLIVER, No. 09 – 158

Cert. grant­ed on Nov. 16, 2009
Oral Argument Mar. 24, 2010
Decided June 24, 2010

The Court agreed to hear Magwood v. Culliver (No. 09 – 158). Billy Joe Magwood received a death sen­tence for killing a sher­iff in 1979 in Alabama. At the time, Alabama law required two con­di­tions before the state could sen­tence a defen­dant to death, only one of which was sat­is­fied by Magwood’s crime. Magwood’s death sen­tence was over­turned on oth­er grounds in 1985, and he was resen­tenced to death the next year. However, it was not until 1997 that Magwood’s lawyers chal­lenged whether his crime was death-eli­gi­ble under Alabama law. Alabama claims Magwood took too long to raise this argu­ment and his appeal is barred by the Anti-ter­ror­ism and Effective Death Penalty Act, which impos­es strict lim­its on suc­ces­sive fed­er­al habeas cor­pus peti­tions. The Eleventh Circuit agreed. Magwood claims that he is bring­ing his claim under his new death sen­tence and there­fore is not barred by AEDPA.

The issue accept­ed by the Court in Magwood is: When a per­son is resen­tenced after hav­ing obtained fed­er­al habeas relief from an ear­li­er sen­tence, is a claim in a fed­er­al habeas peti­tion chal­leng­ing that new sen­tenc­ing judg­ment a ​“sec­ond or suc­ces­sive” claim under 28 U.S.C. § 2244(b) if the peti­tion­er could have chal­lenged his pre­vi­ous sen­tence on the same con­sti­tu­tion­al grounds? (See A. Liptak, ​“30 Years After Murder, Is His Appeal Too Late?,” New York Times, November, 16, 2009).

On June 24, the U.S. Supreme Court ruled in favor of Billy Joe Magwood, an Alabama defen­dant con­vict­ed of a 1979 mur­der whose chal­lenge to the state’s death penal­ty law had been ruled untime­ly by low­er courts. Magwood’s first death sen­tence was over­turned, but he was sen­tenced to death a sec­ond time. When Magwood filed a habeas peti­tion chal­leng­ing his new death sen­tence, the U.S. Court of Appeals for the Eleventh Circuit held that Magwood’s chal­lenge to his new death sen­tence was an unre­view­able ​“sec­ond or suc­ces­sive” chal­lenge since he could have brought the same chal­lenge to his first death sen­tence. Justice Clarence Thomas, writ­ing for the major­i­ty of the U.S. Supreme Court, said ​“because Magwood’s habeas appli­ca­tion chal­lenges a new judg­ment for the first time, it is not ​‘sec­ond or suc­ces­sive.’ ” The Supreme Court deci­sion allows Magwood to chal­lenge his sec­ond death sen­tence as a brand new judg­ment, even if it rais­es issues that could have been made against the orig­i­nal sen­tence. Justices Stevens, Scalia, Breyer, and Sotomayor con­curred. Justice Kennedy, joined by the Chief Justice and Justices Ginsburg and Alito, dissented.

(K. Russell, ​“Court rules in favor of cap­i­tal defen­dant in Magwood v. Patterson,” SCOTUSblog, June 24, 2010; M. Orndorff, ​“Alabama death sen­tence reversed by U.S. Supreme Court,” Birmingham News, June 24, 2010; Magwood v. Patterson, No. 09 – 158 (June 24, 2010).

HOLLAND V. FLORIDA, No. 09 – 5327

Cert. grant­ed on Oct. 13, 2009
Oral argu­ment on Mar. 1, 2010
Decided June 14, 2010

The Court agreed to hear Holland v. Florida, a case rais­ing the ques­tion of ​“whether ​‘gross neg­li­gence’ by a state-appoint­ed defense attor­ney in a death penal­ty case pro­vides a basis for extend­ing the time to file a fed­er­al habeas chal­lenge, in a case where the habeas plea was filed late despite repeat­ed instruc­tions from the client.” (sco​tus​blog​.com). In his peti­tion for cer­tio­rari to the Court, the defen­dant stat­ed, ​“Despite the State of Florida’s promise to Petitioner that he have coun­sel to com­pe­tent­ly and effec­tive­ly rep­re­sent him in both his state and fed­er­al post­con­vic­tion lit­i­ga­tion, a promise that would be pur­port­ed­ly enforced by judi­cial mon­i­tor­ing, Petitioner’s state col­lat­er­al attor­ney, Mr. Collins, failed to time­ly file a (habeas cor­pus) §2254 peti­tion on behalf of Petitioner.” The defen­dant then filed his own peti­tion for habeas cor­pus and, while admit­ting it was filed late, asked that the dead­line be extend­ed because of the seri­ous error by his appointed attorney.

On June 14, 2010, the U.S. Supreme Court reversed the appeals court’s deci­sion, say­ing that its stan­dard was too rigid. The Court said, ​“We have pre­vi­ous­ly held that a gar­den vari­ety claim of excus­able neglect, such as sim­ple mis­cal­cu­la­tion that leads a lawyer to miss a fil­ing dead­line, does not war­rant [an exemp­tion from the dead­line]. But this case before us does not involve, and we are not con­sid­er­ing, a gar­den vari­ety claim of attor­ney neg­li­gence. Rather, the facts of this case present far more seri­ous instances of attor­ney mis­con­duct.” Holland’s lawyer failed to com­mu­ni­cate with him for sev­er­al years, despite let­ters from Holland ask­ing infor­ma­tion regard­ing his appeals. Holland also con­tact­ed state courts and the Florida Bar Association in an effort to have the lawyer removed from the case.

The Court held that equi­table tolling may apply to AEDPA’s statute of lim­i­ta­tions. The case was reversed and remand­ed back to the 11th Circuit for con­sid­er­a­tion of an exten­sion of time for Holland’s fil­ing a fed­er­al appeal in light of the Supreme Court’s stan­dards con­tained in its opin­ion. Justice BREYER deliv­ered the opin­ion of the Court, in which Chief Justice ROBERTS and Justices STEVENS, KENNEDY, GINSBURG, and SOTOMAYOR joined. Justice ALITO filed an opin­ion con­cur­ring in part and con­cur­ring in the judg­ment. Justice SCALIA filed a dis­sent­ing opin­ion, in which Justice THOMAS joined in part.

(W. Richey, ​“Supreme Court gives hope to some death-row inmates,” Christian Science Monitor, June 14, 2010; Holland v. Florida, No. 09 – 5327 (June 14, 2010)).

Read the Supreme Court opin­ion here.

Questions Presented:

  • In deter­min­ing that Petitioner was not enti­tled to equi­table tolling to excuse the late fil­ing of his habeas peti­tion, the Eleventh Circuit deter­mined that the rea­son for the late fil­ing was the ​“gross neg­li­gence” on part of Petitioner’s state-appoint­ed col­lat­er­al attor­ney’s fail­ure to file the peti­tion in a time­ly fash­ion despite repeat­ed instruc­tions from the Petitioner to do so. However, under the new test announced by the Eleventh Circuit in Petitioner’s case, no alle­ga­tion of attor­ney neg­li­gence or fail­ure to meet a lawyer’s stan­dard of care, in the absence of bad faith, dis­hon­esty, divid­ed loy­al­ty, or men­tal impair­ment, could ever qual­i­fy as an excep­tion­al cir­cum­stance war­rant­i­ng equitable tolling.
  • This Court should grant cer­tio­rari to the Eleventh Circuit to deter­mine whether ​“gross neg­li­gence” by col­lat­er­al coun­sel, which direct­ly results in the late fil­ing of a peti­tion for a writ of habeas cor­pus, can qual­i­fy as an excep­tion­al cir­cum­stance war­rant­i­ng equi­table tolling, or whether, in con­flict with oth­er cir­cuits, the Eleventh Circuit was prop­er in deter­min­ing that fac­tors beyond ​“gross neg­li­gence” must be estab­lished before an extra­or­di­nary cir­cum­stance can be found that would war­rant equitable tolling.

(See Scotusblog, Albert Holland v. State of Florida, No. 09 – 5327, Oct. 13, 2009; Petition for Writ of Cert. to 11th Cir., May 13, 2009, at 8 – 10)).

THALER v. HAYNES, No. 09 – 273

Cert. grant­ed and decid­ed Feb. 22, 2010 (per curiam)

On February 22, the U.S. Supreme Court agreed to hear, and then sum­mar­i­ly reversed, a fed­er­al appeals court deci­sion that would have giv­en a Texas defen­dant a new tri­al based on improp­er jury selec­tion. The U.S. Court of Appeals for the Fifth Circuit had ruled that Anthony Haynes should be retried or released because a prospec­tive juror was improp­er­ly exclud­ed based on the juror’s race. Two dif­fer­ent judges had presided over the jury selec­tion; one actu­al­ly observed the juror’s demeanor dur­ing ques­tion­ing, and the sec­ond lis­tened to the pros­e­cu­tion’s expla­na­tion for exclud­ing this juror. The Fifth Circuit said that the sec­ond judge’s deci­sion was not enti­tled to spe­cial def­er­ence because he had not observed the actu­al juror. But the U.S. Supreme Court, in a per curi­am deci­sion, held that the low­er court had mis­in­ter­pret­ed its pri­or rul­ings, and def­er­ence should have been accord­ed to the judge’s deci­sion. The high court’s rul­ing did not exclude a review of the juror’s exclu­sion under the proper standard.

Richard Ellis, an attor­ney for Haynes, said he could seek a rehear­ing before the U.S. Supreme Court or renew his chal­lenge to the juror’s exclu­sion in argu­ments to the 5th Circuit. In Batson v. Kentucky (1986), the Supreme Court estab­lished the prac­tice for chal­leng­ing the dis­missal of a juror because of race. The cur­rent case is Thaler v. Haynes, No. 09 – 273 (Feb. 22, 2010).

WOOD v. ALLEN, No. 08 – 9156

Cert. grant­ed on May 18, 2009
Oral argu­ment: Nov. 4, 2009
Decision: January 20, 2010

On January 20, the U.S. Supreme Court affirmed the death sen­tence for Holly Wood for the 1993 shoot­ing of his for­mer girl­friend in Alabama, despite the fact that the attor­ney work­ing on the penal­ty phase of the case failed to inves­ti­gate or tell the jury about Wood’s bor­der­line ​“men­tal retar­da­tion”. A fed­er­al District Court had over­turned his death sen­tence because of the inad­e­quate per­for­mance of the inex­pe­ri­enced lawyer, although oth­er lawyers work­ing on the case had seen a report on Wood’s men­tal sta­tus and did not use it. There was ample oth­er evi­dence indi­cat­ing Wood had an IQ of less than 70 and had been clas­si­fied as men­tal­ly retard­ed that was not pur­sued by any of the attor­neys. The Supreme Court opin­ion, writ­ten by Justice Sonia Sotomayor, agreed with the U.S. Court of Appeals for the Eleventh Circuit that Wood failed to show that the lawyers were con­sti­tu­tion­al­ly inef­fec­tive. The Court stat­ed, “[T]he state court’s con­clu­sion that Wood’s coun­sel made a strate­gic deci­sion not to pur­sue or present evi­dence of his men­tal defi­cien­cies was not an unrea­son­able deter­mi­na­tion of the facts.” Justice John Paul Stevens, in a dis­sent­ing opin­ion joined by Justice Anthony Kennedy, not­ed, ​“There is a world of dif­fer­ence between a deci­sion not to intro­duce evi­dence at the guilt phase of a tri­al and a fail­ure to inves­ti­gate mit­i­gat­ing evi­dence that might be admis­si­ble at the penal­ty phase… the only rea­son­able fac­tu­al con­clu­sion I can draw from this record is that counsel’s deci­sion to do so was the result of inat­ten­tion and neglect.” (Wood v. Allen, 558 U. S.__, No. 08 – 9156 (Jan. 20, 2010); ​“Supreme Court upholds death penal­ty for men­tal­ly impaired Ala. man with inex­pe­ri­enced lawyer,” Associated Press, January 20, 2010).

The Court accept­ed the defen­dan­t’s peti­tion in Wood v. Allen, a case from Alabama. Holly Wood claimed inef­fec­tive assis­tance of coun­sel, ​“men­tal retar­da­tion”, and dis­crim­i­na­tion in the jury selec­tion process dur­ing his tri­al. After the tri­al, state and defense experts found that Wood, with an IQ below 70, had seri­ous deficits in intel­lec­tu­al func­tion­ing and in at least one area of adap­tive func­tion­ing – clear evi­dence of ​“men­tal retar­da­tion”. However, despite obvi­ous pre-tri­al indi­ca­tions of this dis­abil­i­ty, the defense attor­ney pre­sent­ed no mit­i­gat­ing evi­dence on this issue to the jury dur­ing the penal­ty phase of the tri­al. The novice attor­ney had no expe­ri­ence in death penal­ty cas­es or in any crim­i­nal law. In fed­er­al habeas pro­ceed­ings, the District Court vacat­ed Wood’s death sen­tence due to inef­fec­tive­ness of coun­sel, stat­ing that “[c]ounsel’s fail­ure to inves­ti­gate and present any evi­dence of intel­lec­tu­al functioning…is suf­fi­cient to under­mine con­fi­dence in the appli­ca­tion of the death sentence.”

Ultimately, how­ev­er, the U.S. Court of Appeals for the Eleventh Circuit reversed the District Court’s grant of relief. The first ques­tion before the Supreme Court is whether the state court act­ed unrea­son­ably in con­clud­ing that the inex­pe­ri­enced defense lawyer’s deci­sion to leave out this mit­i­gat­ing evi­dence was strate­gic, when a review of the entire record indi­cat­ed it was due to attor­ney inep­ti­tude. Secondly, the Court will con­sid­er a split among the fed­er­al cir­cuit courts about the def­er­ence they should give to state courts under the Anti-Terrorism and Effective Death Penalty Act of 1996. Wood main­tains that the fed­er­al court is oblig­at­ed to con­sid­er the entire record of the case when review­ing the rea­son­able­ness of a state court find­ing, rather than focus­ing on only parts of the record. See Wood v. Allen, Petition for Writ of Certiorari (March 12, 2009). UPDATE: Holly Wood is sched­uled for exe­cu­tion on Sept. 9, 2010.

Questions Presented (Note: Court agreed to hear case only on first two questions):

  • Whether a state court’s deci­sion on post-con­vic­tion review is based on an unrea­son­able deter­mi­na­tion of the facts when it con­cludes that, dur­ing the sen­tenc­ing phase of a cap­i­tal case, the fail­ure of a novice attor­ney with no crim­i­nal law expe­ri­ence to pur­sue or present evi­dence of defen­dan­t’s severe­ly impaired men­tal func­tion­ing was a strate­gic deci­sion, while the court ignores evi­dence in the record before it that demonstrates otherwise?
  • Whether the rule fol­lowed by some cir­cuits, includ­ing the major­i­ty in this case, abdi­cates the court’s judi­cial review func­tion under the Antiterrorism and Effective Death Penalty Act by fail­ing to deter­mine whether a state court deci­sion was unrea­son­able in light of the entire state court record and instead focus­ing sole­ly on whether there is clear and con­vinc­ing evi­dence in that record to rebut cer­tain sub­sidiary factual findings?
  • Whether a state court unrea­son­ably applies Atkins v. Virginia when it bases its find­ing that a defen­dant does not have sig­nif­i­cant deficits in adap­tive func­tion­ing and thus is not men­tal­ly retard­ed on an analy­sis of the defen­dan­t’s rel­a­tive strengths in adap­tive func­tion­ing with­out con­sid­er­ing the defen­dan­t’s lim­i­ta­tions, which is incon­sis­tent with the accept­ed and estab­lished clin­i­cal def­i­n­i­tions of ​“men­tal retardation”?
  • Whether a peti­tion­er seek­ing habeas relief in fed­er­al court may rely on a com­par­a­tive juror analy­sis to demon­strate a Batson v. Kentucky vio­la­tion where that analy­sis is based on facts from the state tri­al court record, but was not pre­sent­ed to the state trial court?
  • Opinion below (11th Circuit)
  • Petition for certiorari
  • Brief in opposition
  • Petitioner’s reply

WELLONS v. HALL, No. 09 – 5731

Cert. grant­ed and decid­ed Jan. 19, 2009 (per curiam)

The Court grant­ed cer­tio­rari and reversed the U.S. Court of Appeals for the Eleventh Circuit, order­ing the low­er court to re-exam­ine the appeal of Marcus Wellons, who received the death penal­ty for a 1989 rape and mur­der in Georgia. The Court’s per curi­am opin­ion described ​“unusu­al events going on behind the scenes” at Wellons’ tri­al, includ­ing con­tacts out­side the court­room between the jury and the judge, and the fact that some jury mem­bers gave the tri­al judge and bailiff provoca­tive gifts. The Supreme Court reject­ed the 11th Circuit’s opin­ion that Wellons’s claims of mis­con­duct were mere­ly spec­u­la­tion. The Court’s opin­ion stat­ed, ​“From begin­ning to end, judi­cial pro­ceed­ings con­duct­ed for the pur­pose of decid­ing whether a defen­dant shall be put to death must be con­duct­ed with dig­ni­ty and respect. The dis­turb­ing facts of this case raise seri­ous ques­tions con­cern­ing the con­duct of the tri­al, and this peti­tion rais­es a seri­ous ques­tion about whether the Court of Appeals care­ful­ly reviewed those facts before address­ing petitioner’s constitutional claims.”

Two dis­sent­ing opin­ions were filed (Chief Justice Roberts, Justices Alito, Scalia, and Thomas), stat­ing that more def­er­ence should have been giv­en to the state court which found no prej­u­dice from the gifts, and to the Court of Appeals, which exam­ined the issue.

(R. Barnes, ​“Supreme Court man­dates ​‘dig­ni­ty and respect’ in death sen­tenc­ing,” Washington Post, January 20, 2010; Wellons v. Hall, 558 U. S.__, No. 09 – 5731 (Jan. 19, 2010) (vacat­ing the judg­ment and remand­ing to 11th Cir. for fur­ther con­sid­er­a­tion in light of Cone v. Bell)).

SMITH v. SPISAK, No. 08 – 724

Cert. grant­ed on Feb. 23, 2009
Oral argu­ment: October 13, 2009
Decision: Jan. 12, 2010

The Court reversed the U.S. Court of Appeals for the Sixth Circuit that had grant­ed sen­tenc­ing relief to Frank Spisak, who was sen­tenced to death in Ohio. After his ini­tial appeals were denied, he filed a habeas cor­pus peti­tion claim­ing that: 1) the jury instruc­tions and ver­dict forms used at his tri­al uncon­sti­tu­tion­al­ly required the jury to be unan­i­mous in choos­ing any mit­i­gat­ing fac­tors; and 2) his attor­ney’s clos­ing argu­ment was so inad­e­quate as to deprive him of effec­tive assis­tance of coun­sel. In revers­ing the Sixth Circuit, the Court held that there was no ​“rea­son­able prob­a­bil­i­ty that, but for counsel’s unpro­fes­sion­al errors, the result of the pro­ceed­ing would have been dif­fer­ent.” They also held that its pri­or deci­sion in Mills v. Maryland regard­ing jury instruc­tions was more nar­row than the way the low­er court had applied it in this case. Justice John Paul Stevens con­curred in the out­come of the case but wrote sep­a­rate­ly, crit­i­ciz­ing the ​“cat­a­stro­phe of [defense] coun­sel’s failed strat­e­gy.” He added, ​“Indeed, the argu­ment was so out­ra­geous that it would have right­ly sub­ject­ed a pros­e­cu­tor to charges of mis­con­duct.” Justice Stevens, how­ev­er, agreed that the defen­dant would prob­a­bly still have been sen­tenced to death. (See R. Barnes, ​“Killer Frank Spisak, not his attor­ney, brought on death penal­ty, jus­tices rule,” Washington Post, Jan. 13, 2010).

Frank Spisak was con­vict­ed and sen­tenced to death for the mur­der of three peo­ple at Cleveland State University in 1982. In 2007, the U.S. Supreme Court vacat­ed the judg­ment hand­ed down by the Sixth Circuit and remand­ed the case to be recon­sid­ered in light of Carey v. Musladin and Schriro v. Landrigan. However, the Sixth Circuit found those cas­es dis­tin­guish­able and rein­stat­ed its grant of sen­tenc­ing relief to Spisak. The U.S. Supreme Court again grant­ed the state’s peti­tion for cer­tio­rari in this case.

(See also Spisak v. Mitchell, No. 03 – 4034 6th Cir. April 11, 2008).

Questions Presented:

  • Did the Sixth Circuit con­tra­vene the direc­tives of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) and Carey v. Musladin, 127 S. Ct. 649 (2006), when it applied Mills v. Maryland, 486 U.S. 367 (1988), to resolve in a habeas peti­tion­er’s favor ques­tions that were not decid­ed or addressed in Mills?
  • Did the Sixth Circuit exceed its author­i­ty under AEDPA when it applied United States v. Cronic, 466 U.S. 648 (1984), to pre­sume that a habeas peti­tion­er suf­fered prej­u­dice from sev­er­al alleged­ly defi­cient state­ments made by his tri­al coun­sel dur­ing clos­ing argu­ment instead of defer­ring to the Ohio Supreme Court’s rea­son­able rejec­tion of the claim under Strickland v. Washington, 466 U.S. 668 (1984)?

BEARD v. KINDLER, No. 08 – 992

Cert. grant­ed on May 18, 2009
Oral argu­ment: Nov. 2, 2009
Decision: Dec. 8, 2009

The Court over­ruled a low­er fed­er­al court that had giv­en relief to Joseph Kindler, a Pennsylvania death row inmate. Kindler had been con­vict­ed of mur­der in 1982, but then escaped to Canada from the Philadelphia Detention Center in 1984. Prior to his escape, his attor­neys had filed post-ver­dict motions chal­leng­ing his con­vic­tion and sen­tence. Kindler was sub­se­quent­ly caught and, upon his return to the U.S., he tried to rein­state his claims. The state supreme court held that Kindler for­feit­ed his appeal when he escaped. The U.S. Court of Appeals for the Third Circuit held that Kindler’s issues could be reviewed in fed­er­al court because the state for­fei­ture rule was inad­e­quate to sup­port the judg­ment bar­ring the appeal, giv­en the dis­cre­tion the state courts had in apply­ing it. The Third Circuit also upheld the fed­er­al District Court that had found the jury instruc­tions in Kindler’s tri­al to be uncon­sti­tu­tion­al under Mills v. Maryland (1988). The U.S. Supreme Court held that dis­cre­tion in a state rule does not ren­der it inad­e­quate to bar fur­ther review, and thus Kindler’s escape for­feit­ed his chal­lenge to the jury instruc­tions in both state and federal courts.

(See Beard v. Kindler, No. 08 – 992 (U.S. Dec. 8, 2009); see also K. Caparella, ​“Supreme Court rules against Philly killer, who might now face death sen­tence,” (Philadelphia Daily News, December 9, 2009)). If Kindler faced extra­di­tion from Canada today, he would not be returned to the U.S. unless the state agreed not to seek the death penal­ty. See International.

Questions Presented:

  • After mur­der­ing a wit­ness against him and receiv­ing a sen­tence of death, respon­dent broke out of prison, twice. Prior to his recap­ture in Canada years lat­er, the tri­al court exer­cised its dis­cre­tion under state for­fei­ture law to dis­miss respondent’s post-ver­dict motions, result­ing in default of most appel­late claims. On fed­er­al habeas cor­pus review, the court of appeals refused to hon­or the state court’s pro­ce­dur­al bar, rul­ing that, because ​“the state court.., had dis­cre­tion” in apply­ing the rule, it was not ​“firm­ly estab­lished” and was there­fore ​“inad­e­quate.”
  • Is a state pro­ce­dur­al rule auto­mat­i­cal­ly ​“inad­e­quate” under the ade­quate-state-grounds doc­trine — and there­fore unen­force­able on fed­er­al habeas cor­pus review — because the state rule is dis­cre­tionary rather than mandatory?

PORTER v. McCOLLUM, No. 08 – 10537

Cert. grant­ed and decid­ed Nov. 30, 2009 (per curiam)

On November 30, the United States Supreme Court over­turned the death sen­tence of George Porter, a Korean War vet­er­an from Florida who had been con­vict­ed of mur­der in 1988. The Court stat­ed that Porter’s tri­al lawyer failed to inves­ti­gate and present ample mit­i­gat­ing evi­dence, includ­ing the fact that Porter’s bat­tle ser­vice in the war left him severe­ly trau­ma­tized. The U.S. Court of Appeals for the Eleventh Circuit had held that such evi­dence would not have made a dif­fer­ence at sen­tenc­ing. The Supreme Court accept­ed Porter’s peti­tion and with­out dis­sent issued its opin­ion the same day, stat­ing, ​“Petitioner George Porter is a vet­er­an who was both wound­ed and dec­o­rat­ed for his active par­tic­i­pa­tion in two major engage­ments dur­ing the Korean War; his com­bat ser­vice unfor­tu­nate­ly left him a trau­ma­tized, changed man. His com­mand­ing officer’s mov­ing descrip­tion of those two bat­tles was only a frac­tion of the mit­i­gat­ing evi­dence that his coun­sel failed to dis­cov­er or present dur­ing the penal­ty phase of his tri­al in 1988.”

Porter rep­re­sent­ed him­self dur­ing his pre-tri­al pro­ceed­ings and for much of the guilt-phase of the tri­al. He then plead­ed guilty, but asked for coun­sel dur­ing the penal­ty phase of the case. His inex­pe­ri­enced lawyer put on only one wit­ness in mit­i­ga­tion – Porter’s ex-wife. In addi­tion to the evi­dence that was not pre­sent­ed about the trau­ma from his par­tic­i­pa­tion in the war, there was sig­nif­i­cant evi­dence of vio­lent abuse in Porter’s child­hood. The Court not­ed: ​“It is unrea­son­able to dis­count to irrel­e­vance the evi­dence of Porter’s abu­sive child­hood, espe­cial­ly when that kind of his­to­ry may have par­tic­u­lar salience for a jury eval­u­at­ing Porter’s behav­ior in his rela­tion­ship with [his girl­friend] Williams. It is also unrea­son­able to con­clude that Porter’s mil­i­tary ser­vice would be reduced to ​‘incon­se­quen­tial pro­por­tions,’ sim­ply because the jury would also have learned that Porter went AWOL on more than one occa­sion. Our Nation has a long tra­di­tion of accord­ing lenien­cy to vet­er­ans in recog­ni­tion of their ser­vice, espe­cial­ly for those who fought on the front lines as Porter did.” (cita­tions omitted).

UPDATE: Prosecutors have elect­ed not to seek the death penal­ty in a re-sen­tenc­ing hear­ing for Porter, who is 78. (Florida Today, July 21, 2010).

WONG v BELMONTES, No. 08 – 1263

Cert. grant­ed and decid­ed Nov. 16, 2009 (per curiam)

On November 16, the United States Supreme Court accept­ed for review and hand­ed down a per curi­am deci­sion in Wong v. Belmontes (No. 08 – 1263). The Court rein­stat­ed Fernando Belmontes’ death sen­tence and over­turned the deci­sion of the Ninth Circuit grant­i­ng relief because of inef­fec­tive­ness of coun­sel. Belmontes was sen­tenced to death for mur­der­ing a woman dur­ing a rob­bery in 1981 in California. The appeals court ruled in 2008 that Belmontes’ lawyer had rep­re­sent­ed him incom­pe­tent­ly by neglect­ing to intro­duce evi­dence of fam­i­ly strife and depres­sion that would have like­ly led to a dif­fer­ent sen­tence. The Supreme Court assumed that the attor­ney should have pre­sent­ed more evi­dence but con­clud­ed it would not have made any dif­fer­ence in sen­tenc­ing. Justice Stevens issued a con­cur­ring opin­ion stat­ing that he believed the Supreme Court had erred in a pre­vi­ous con­sid­er­a­tion of this same case.

(See B. Egelko, ​“Central Valley killer back in line for death,” San Francisco Chronicle, November 16, 2009)

BOBBY v. VAN HOOK, No. 09 – 144

Cert. grant­ed and decid­ed Nov. 9, 2009 (per curiam)

On November 9, the U.S. Supreme Court grant­ed cer­tio­rari in the case of Bobby v. Van Hook and issued a per curi­am opin­ion over­turn­ing a pan­el of the U.S. Court of Appeals for the Sixth Circuit, which had grant­ed Robert Van Hook a new sen­tenc­ing hear­ing based on inef­fec­tive­ness of coun­sel. Van Hook had been con­vict­ed and sen­tenced to death for a mur­der com­mit­ted in 1985 fol­low­ing an encounter in a bar. The Supreme Court held that, judg­ing by pro­fes­sion­al stan­dards exist­ing at the time of Van Hook’s tri­al (rather than by more recent American Bar Association stan­dards), the attor­neys con­duct­ed an ade­quate inves­ti­ga­tion and pro­vid­ed suf­fi­cient rep­re­sen­ta­tion. The Court said, ​“This is not a case in which the defendant’s attor­neys failed to act while poten­tial­ly pow­er­ful mit­i­gat­ing evi­dence stared them in the face, cf. Wiggins, or would have been appar­ent from doc­u­ments any rea­son­able attor­ney would have obtained, cf. Rompilla v. Beard. It is instead a case, like Strickland itself, in which defense counsel’s ​‘deci­sion not to seek more’ mit­i­gat­ing evi­dence from the defendant’s back­ground ​‘than was already in hand’ fell ​‘well with­in the range of pro­fes­sion­al­ly rea­son­able judg­ments.’ ” (cita­tions omitted).

CORCORAN v. LEVENHAGEN, No. 08 – 10495

Cert. grant­ed and decid­ed Oct. 20, 2009 (per curiam)

Joseph Corcoran of Indiana pre­sent­ed five issues in his fed­er­al habeas peti­tion. The U.S. District Court grant­ed him relief on his Sixth Amendment sen­tenc­ing claims and did not resolve his oth­er claims. The U.S. Court of Appeals for the Seventh Circuit reversed the District Court’s habeas grant but did not review the oth­er four claims. In a per curi­am opin­ion, the Supreme Court held: ​“We now grant cer­tio­rari and hold that the Seventh Circuit erred in dis­pos­ing of Corcoran’s oth­er claims with­out expla­na­tion of any sort. The Seventh Circuit should have per­mit­ted the District Court to con­sid­er Corcoran’s unre­solved chal­lenges to his death sen­tence on remand, or should have itself explained why such con­sid­er­a­tion was unnecessary.”

Orders of the Court

MELSON V. ALLEN, No. 09 – 5373

“The peti­tion for rehear­ing is grant­ed. The order entered October 5, 2009, deny­ing the peti­tion for a writ of cer­tio­rari is vacat­ed. The motion of peti­tion­er for leave to pro­ceed in for­ma pau­peris and the peti­tion for a writ of cer­tio­rari are grant­ed. The judg­ment is vacat­ed, and the case is remand­ed to the United States Court of Appeals for the Eleventh Circuit for fur­ther con­sid­er­a­tion in light of Holland v. Florida, 560 U.S.___ (2010).” (June 21, 2010) (see Holland above, under Opinions).

WHITFIELD V. McNEIL, No. 09 – 5776

FORD V. McNEIL, NO. 09 – 7493

“The motions of peti­tion­ers for leave to pro­ceed in for­ma pau­peris and the peti­tions for a writs of cer­tio­rari are grant­ed. The judg­ments are vacat­ed, and the cas­es are remand­ed to the United States Court of Appeals for the Eleventh Circuit for fur­ther con­sid­er­a­tion in light of Holland v. Florida, 560 U.S.___ (2010).” (June 21, 2010) (see Holland above, under Opinions).

SKINNER v. SWITZER, No. 09 – 9000

The Court grant­ed a stay of exe­cu­tion to Hank Skinner of Texas on Mar. 24, 2010, about an hour before his exe­cu­tion. The Court appar­ent­ly want­ed more time to con­sid­er Skinner’s cert. peti­tion rais­ing the ques­tion of whether a suit for DNA test­ing can be brought through the civ­il rights law (42 USC § 1983). UPDATE: The Court grant­ed cert. on May 24, 2010. See Court’s 2010 – 2011 Term.

FLORIDA v. THOMAS WILLIAM RIGTERINK, No. 08 – 1229

Decided March 1, 2010

The motion of respon­dent for leave to pro­ceed in for­ma pau­peris and the peti­tion for a writ of cer­tio­rari are grant­ed. The judg­ment is vacat­ed, and the case is remand­ed to the Supreme Court of Florida for fur­ther con­sid­er­a­tion in light of Florida v. Powell, 559 U. S. _​_​_​(2010). (In Powell, the Court held that the two warn­ings giv­en the defen­dant in com­bi­na­tion rea­son­ably con­veyed the right to have an attor­ney present, not only at the out­set of inter­ro­ga­tion, but at all times, and this sat­is­fied the require­ment of Miranda.)
JUSTICE STEVENS, dissenting:
In my view, the judg­ment below rest­ed upon an ade­quate and inde­pen­dent state ground and the Court there­fore lacks juris­dic­tion over this case. Indeed, the inde­pen­dence of the state-law ground in this case is even clear­er than in Powell because the Florida Supreme Court express­ly acknowl­edged its oblig­a­tion “‘to give inde­pen­dent legal import to every phrase and clause con­tained’” in the State Constitution and stat­ed that ​“the fed­er­al Constitution sets the floor, not the ceil­ing, and this Court retains the abil­i­ty to inter­pret the right against self-incrim­i­na­tion afford­ed by the Florida Constitution more broad­ly than that afford­ed by its fed­er­al coun­ter­part.” (inter­nal citations omitted).

BEARD V. ABU-JAMAL, No. 08 – 652

On Jan. 19, 2010, the Court grant­ed the state’s peti­tion in Beard v. Abu-Jamal (08 – 652), vacat­ing the sen­tenc­ing relief and remand­ing the case to the U.S. Court of Appeals for the Third Circuit to recon­sid­er its deci­sion in light of the Supreme Court’s recent deci­sion in Smith v. Spisak (see deci­sion above in Opinions). Mumia Abu-Jamal had been con­vict­ed of killing a police offi­cer in Philadelphia. UPDATE: The Third Circuit upheld the rever­sal of Abu-Jamal’s death sen­tence. The Supreme Court declined the state’s peti­tion for cert. On Dec. 7, 2011, the D.A.‘s office announced that it would not pur­sue a new death sen­tence, leav­ing the defen­dant with the sen­tence of life without parole.

JOHN ALLEN MUHAMMAD v. KELLY, No. 09 – 7328 (09A428)

ON APPLICATION FOR STAY AND ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT [November 9, 2009]
The appli­ca­tion for stay of exe­cu­tion of sen­tence of death pre­sent­ed to THE CHIEF JUSTICE and by him referred to the Court is denied. The peti­tion for a writ of cer­tio­rari is denied.
Statement of JUSTICE STEVENS, with whom JUSTICE GINSBURG and JUSTICE SOTOMAYOR join, respect­ing the denial of the peti­tion for writ of certiorari:
This case high­lights once again the per­ver­si­ty of exe­cut­ing inmates before their appeals process has been ful­ly con­clud­ed. Under our nor­mal prac­tice, Muhammad’s time­ly peti­tion for cer­tio­rari would have been reviewed at our Conference on November 24, 2009. Virginia has sched­uled his exe­cu­tion for November 10, how­ev­er, so we must resolve the peti­tion on an expe­dit­ed basis unless we grant a tem­po­rary stay. By deny­ing Muhammad’s stay appli­ca­tion, we have allowed Virginia to trun­cate our delib­er­a­tive process on a mat­ter — involv­ing a death row inmate — that demands the most care­ful atten­tion. This result is par­tic­u­lar­ly unfor­tu­nate in light of the lim­it­ed time Muhammad was giv­en to make his case in the District Court.
I con­tin­ue to believe that the Court would be wise to adopt a prac­tice of stay­ing all exe­cu­tions sched­uled in advance of the com­ple­tion of our review of a cap­i­tal defendant’s first appli­ca­tion for a fed­er­al writ of habeas cor­pus. Such a prac­tice would give mean­ing­ful effect to the dis­tinc­tion Congress has drawn between first and suc­ces­sive habeas peti­tions. See 28 U. S. C. §2244(b). It would also serve the inter­ests of avoid­ing irre­versible error, facil­i­tat­ing the effi­cient man­age­ment of our dock­et, and pre­serv­ing basic fair­ness by ensur­ing death row inmates receive the same pro­ce­dur­al safe­guards that ordi­nary inmates receive.
Having reviewed petitioner’s claims, I do not dis­sent from the Court’s deci­sion to deny cer­tio­rari. ​“I do, how­ev­er, remain firm­ly con­vinced that no State should be allowed to fore­short­en this Court’s order­ly review of … first-time habeas petition[s] by exe­cut­ing pris­on­ers before that review can be com­plet­ed.” (cita­tions omitted).

UPDATE: Muhammad was exe­cut­ed on Nov. 10, 2009.

Court’s order and state­ment of Justices

IN RE TROY DAVIS, No. 08 – 1443

Order issued by U.S. Sup. Ct. for evi­den­tiary hear­ing in District Court, Aug. 17, 2009:

On August 17 the United States Supreme Court ordered a new evi­den­tiary hear­ing for Georgia death row inmate Troy Davis, whose case has drawn world­wide atten­tion because of new evi­dence of his pos­si­ble inno­cence. For the first time in near­ly 50 years, the Court has favor­ably respond­ed to a peti­tion direct­ed to them, rather than as an appeal from oth­er courts. With only two Justices writ­ing in dis­sent, the Court ordered the low­er fed­er­al court to hear Davis’ evi­dence: ​“The District Court should receive tes­ti­mo­ny and make find­ings of fact as to whether evi­dence that could not have been obtained at the time of tri­al clear­ly estab­lish­es petitioner’s innocence.”

Since Davis’ ini­tial con­vic­tion in 1991, sev­en of nine eye­wit­ness­es against him have recant­ed their tes­ti­mo­ny. Justice Stevens, con­cur­ring with Justices Breyer and Ginsburg, wrote, ​“The sub­stan­tial risk of putting an inno­cent man to death clear­ly pro­vides an ade­quate jus­ti­fi­ca­tion for hold­ing an evi­den­tiary hear­ing.” He fur­ther respond­ed to Justice Scalia’s dis­sent, which would have denied Davis’ request on nar­row legal grounds, by strong­ly reject­ing the notion that the law allows the exe­cu­tion of an inno­cent per­son: “[I]magine a peti­tion­er in Davis’s sit­u­a­tion who pos­sess­es new evi­dence con­clu­sive­ly and defin­i­tive­ly prov­ing, beyond any scin­til­la of doubt, that he is an inno­cent man. The dissent’s rea­son­ing would allow such a peti­tion­er to be put to death nonethe­less. The Court cor­rect­ly refus­es to endorse such rea­son­ing.” An ami­cus brief had been filed on behalf of Davis by for­mer mem­bers of the judi­cia­ry and law enforce­ment offi­cials, includ­ing for­mer Georgia Congressman Bob Barr and the for­mer direc­tor of the FBI William S. Sessions.

Justice Sotomayor took no part in the rul­ing. Justice Thomas joined Justice Scalia’s dis­sent. Troy Davis had sub­mit­ted a peti­tion direct­ly with the Supreme Court for a writ of habeas cor­pus. If ulti­mate­ly grant­ed, his con­vic­tion could be over­turned and he could be set free.

(Sources: J. Holland, ​“Supreme Court says Georgia man should get hear­ing,” Associated Press, August 17, 2009; In re Troy Anthony Davis, No. 08 – 1443, U.S., Aug. 17, 2009, Stevens, J., con­cur­ring; Scotusblog​.com)

UPDATE: The evi­den­tiary hear­ing in District Court has been sched­uled for June 23, 2010 in Savannah, Georgia.

UPDATE: On August 24, U.S. District Court Judge William T. Moore Jr. reject­ed Troy Davis’s peti­tion to over­turn his con­vic­tion for killing a police offi­cer in 1989 in Georgia. Judge Moore chose a high stan­dard of proof that Davis would have to meet to estab­lish his inno­cence claim: Davis need­ed to prove by ​“clear and con­vinc­ing evi­dence that no rea­son­able juror would have con­vict­ed him in light of the new evi­dence.” Judge Moore did con­clude that it would be uncon­sti­tu­tion­al to exe­cute ​“those who can make a tru­ly per­sua­sive demon­stra­tion of inno­cence.” This hold­ing has only been assumed for the sake of argu­ment by the U.S. Supreme Court. He also acknowl­edged that ​“the State’s case may not be iron­clad.” Davis, who has spent near­ly two decades on death row, has attract­ed sup­port from many human rights groups because a num­ber of key pros­e­cu­tion wit­ness­es recant­ed their tri­al tes­ti­mo­ny, and oth­er wit­ness­es have come for­ward impli­cat­ing anoth­er sus­pect. Last year, the Supreme Court issued an his­tor­i­cal rul­ing allow­ing Davis to present evi­dence that had been uncov­ered since his tri­al. It is pos­si­ble that Judge Moore’s rul­ing will now return to the Supreme Court for fur­ther review. Read Judge Moore’s rul­ing: Part I and Part II. (B. Rankin, ​“Judge rejects Troy Davis inno­cence claim,” Atlanta Journal-Constitution, August 24, 2010). See Innocence and U.S. Supreme Court. Read Amnesty International’s press release.

UPDATE: On March 28, 2011, the U.S. Supreme Court denied all of Davis’s peti­tions for writs of cer­tio­rari and habeas cor­pus (Nos. 08 – 1443, 10 – 949, 10, 950). Davis was exe­cut­ed on Sept. 21, 2011.

Juveniles and Life Without Parole

On May 4, 2009, the Supreme Court grant­ed cert. in two cas­es involv­ing juve­nile offend­ers. While the two cas­es below are not death penal­ty cas­es, both rely heav­i­ly on the Supreme Court’s deci­sion in Roper v. Simmons (2005), regard­ing juve­niles and the death penal­ty. See Juveniles.

Docket: 08 – 7412

Title: Graham v. Florida

Oral argu­ment: Nov. 9, 2009 (10:00 am)

Issue: Whether the Eighth Amendment’s ban on cru­el and unusu­al pun­ish­ments pro­hibits the impris­on­ment of a juve­nile (under the age of 18 at the time of the crime) for life with­out the pos­si­bil­i­ty of parole as pun­ish­ment for the com­mis­sion of a non-homicide offense. 

Petition for certiorari

UPDATE: DECISION: On May 17, 2010, the Court held that the a sen­tence of life with­out parole would be uncon­sti­tu­tion­al for a juve­nile defen­dant who had not com­mit­ted homi­cide. Justice Kennedy wrote an opin­ion that was joined by Justices Stevens, Gingsburg, Breyer, and Sotomayor. The Court said that the infre­quen­cy at which this sen­tence was applied to non-homi­ci­dal juve­nile defen­dants indi­cat­ed a nation­al con­sen­sus against this pun­ish­ment, even thought 37 states tech­ni­cal­ly allowed such sen­tences. The Court also bor­rowed from its analy­sis in Roper v. Simmons regard­ing the ways in which juve­nile offend­ers dif­fer from adults.

Justice Roberts joined in the Court’s judg­ment, but not in Justice Kennedy’s opin­ion, stat­ing that the sen­tence giv­en Graham was dis­pro­por­tion­ate to his offense, but that he would allow courts to make such deter­mi­na­tions on a case by case basis.

Justice Thomas wrote a dis­sent that was joined by Justices Scalia and Alito.

Read the opinions.

Docket: 08 – 7621

Title: Sullivan v. Florida

Oral argu­ment: Nov. 9, 2009 (11:00 am)

Issue: Does impo­si­tion of a life with­out parole sen­tence on a thir­teen-year-old for a non-homi­cide vio­late the pro­hi­bi­tion on cru­el and unusu­al pun­ish­ments under the Eighth and Fourteenth Amendments, where the freak­ish­ly rare impo­si­tion of such a sen­tence reflects a nation­al con­sen­sus on the reduced crim­i­nal cul­pa­bil­i­ty of children? 

UPDATE: DECISION: On May 17, 2010, the Court dis­missed the case as improv­i­dent­ly grant­ed. Presumably, Sullivan will be eli­gi­ble to resub­mit his claim at the appro­pri­ate time, assert­ing that his life-with­out-parole sen­tence vio­lat­ed the Eighth Amendment. He would then come under the prece­dent of the deci­sion in Graham v. Florida (above).

For more infor­ma­tion on this issue: