Opinions of the Court
CASES DECIDED AFTER FULL BRIEFING AND ORAL ARGUMENT
DAVILA v. DAVIS, No. 16 – 6219
Cert. granted: January 13, 2017
Argument: April 24, 2017 (Read the Transcript)
Decided: June 26, 2017 (Opinion)
On June 26, 2017, the Supreme Court (5 – 4) denied relief to Texas death-row prisoner, Erick Daniel Davila, declining to extend the equitable rule announced in Martinez v. Ryan (2011) to claims of ineffective assistance of appellate counsel. The question presented, as stated in the merits brief filed by Petitioner is as follows: Whether the rule established in Martinez v. Ryan and Trevino v. Thaler, that ineffective state habeas counsel can be seen as cause to overcome the procedural default of a substantial ineffective assistance of trial counsel claim, also applies to procedurally defaulted, but substantial, ineffective assistance of appellate counsel claims.
In Davila’s case, his trial lawyer had objected to an improper jury instruction, but both his direct appeal lawyer and his state habeas lawyer failed to present the issue to the state courts. Ordinarily, a defendant’s failure to have raised a claim before the state’s highest court prevents him from later obtaining review of that claim in federal court. The Supreme Court has previously held, however, in Martinez v. Ryan, that this procedural bar to federal review can be overcome for claims of ineffective assistance of counsel at trial if the defendant can show that his failure to raise that claim was a product of ineffective representation by his lawyer during state post-conviction proceedings. Davila asked the Supreme Court to determine whether this procedural bar also can be overcome when a state post-conviction lawyer ineffectively fails to raise a meritorious claim that direct appeal counsel had been ineffective. In other words, the issue was whether a federal habeas court is permitted to review a state prisoner’s claim, never presented to the state courts, that his direct appeal lawyer had provided ineffective representation but the post-conviction lawyer’s failure to raise the issue also was ineffective.
Writing for the Court, Justice Thomas (joined by Chief Justice Roberts, Justices Kennedy, Alito, and Gorsuch) answered the question in the negative, holding that Martinez does not extend to claims of appellate counsel’s ineffectiveness. The Court’s decision now prevents federal courts from reviewing (and therefore granting relief on) a meritorious claim if appellate counsel failed to raise the claim and post-conviction counsel failed to challenge appellate counsel’s ineffectiveness. Among the reasons provided for failing to expand Martinez to claims of appellate counsel’s ineffectiveness were the burden upon the system by “flood[ing] the federal courts” with such claims and the “intrus[ion] on state sovereignty” by disrupting a conviction and sentence.
Justice Breyer (joined by Justices Ginsburg, Sotomayor, and Kagan) dissented, pointing out that “[t]he fact that … nearly a third of convictions or sentences in capital cases are overturned at some stage of review suggests the practical importance of the appeal right, particularly in a capital case such as this one.” The dissent, disagreeing with the majority’s concern that the federal courts would be overburdened, said that “there is no evidence before us that Martinez has produced a greater-than-expected increase in courts’ workload.” Specifically, the dissent pointed out that Texas provided empirical evidence that the Ninth Circuit (which has applied Martinez to ineffective-assistance-of-appellate-counsel claims since late 2013) has had “dozens” of federal habeas case applying the new rule. But there have been 7,500 state prisoners who have filed habeas petitions during that time, and such an increase was “not significant enough” according to the dissent, “to warrant depriving a prisoner of any forum to adjudicate a substantial claim that he was deprived of his constitutional right to effective assistance of appellate counsel.” In the dissent’s view, “[t]he basic legal principle that should determine the outcome of this case is the principle that requires courts to treat like cases alike.”
In this case, Petitioner Davila was accused of killing two people, and charged with capital murder under Texas’ statute that requires a finding of the intentional killing of more than one person during the same criminal transaction. During his trial, Davila’s counsel argued that the most important issue for the jury would be intent, and asserted that Davila intended to kill an associate of a rival gang, but not the two victims. While the jury was deliberating, it sent a question to the court asking, “In a capital murder charge, are you asking us did he intentionally murder the specific victims, or are you asking us did he intend to murder a person and in the process took the lives of 2 others.” Over objection from the defense, the court responded: “A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated or risked is that: a different person was injured, armed, or otherwise affected.”
On direct appeal, Davila’s counsel failed to raise a claim that the court’s response to the jury question violated Texas law and constituted reversible error. During state post-conviction proceedings, Davila’s new counsel also failed to raise the issue and failed to present a claim that prior counsel’s failure to have raised the error on appeal violated Davila’s right to effective assistance of appellate counsel. When Davila was appointed new counsel for his federal habeas proceedings, he then raised the claim that the jury instruction was in error and argued that his appellate and post-conviction counsel had been ineffective for failing to present the issue to the state courts — a necessary requirement before the federal courts can review a claim that had not been presented to the state court. The U.S. Court of Appeals for Fifth Circuit rejected Davila’s claim under its existing precedent.
You can read the Court’s opinion here. You can read Davila’s Petition for Writ of Certiorari here; the Brief in Opposition for the Respondent, Lorrie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division, here; and Davila’s reply brief here. You can read the Fifth Circuit decision denying relief here.
McWILLIAMS v. DUNN, No. 16 – 5294
Cert. granted: January 13, 2017
Argument: April 24, 2017 (Read the transcript)
Decided: June 19, 2017 (Opinion)
On June 19, 2017, the Supreme Court (5 – 4) ruled in favor of Alabama death-row prisoner James Edmond McWilliams finding that he was denied his constitutional right to the assistance of a mental-health expert in evaluating, preparing, and presenting his defense, and sent the case back to the Eleventh Circuit to decide whether that error had substantial and injurious effect on his sentencing proceedings. Writing for the opinion for the Court, Justice Breyer explained that the Alabama courts denial of relief was contrary to a 1985 decision of the U.S. Supreme Court in Ake v. Oklahoma, which “clearly established that a defendant must receive the assistance of a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively ‘assist in evaluation, preparation, and presentation of the defense.’ ” In reaching the decision in this case, the Court explained that “Ake does not require just an examination. Rather, it requires the State to provide the defense with ‘access to a competent psychiatrist who will conduct an appropriate [1] examination and assist in [2] evaluation, [3] preparation, and [4] presentation of the defense.’ ” Because McWilliams was denied the expert assistance to which he was entitled, the Court granted relief. Justice Alito (joined by Chief Justice Roberts, and Justices Thomas and Gorsuch) dissented, asserting that the majority failed to address the question presented – that is whether an indigent criminal defendant is “entitled to the assistance of a psychiatric expert who is a member of the defense team.” (The question presented, as stated in the merits brief filed by McWilliams was whether, when this court held in Ake v. Oklahoma that an indigent defendant is entitled to meaningful expert assistance for the “evaluation, preparation, and presentation of the defense,” it clearly established that the expert should be independent of the prosecution.)
Petitioner McWilliams — who has a history of severe and multiple head injuries — was convicted of the robbery, rape, and murder of a store clerk. Before the sentencing hearing took place, McWilliams’ counsel asked the court for expert mental-health assistance to conduct neuropsychological and neurological examinations. The court granted counsel’s request, but appointed an expert who was a colleague to the two experts presented by the State, and defense counsel was afforded no opportunity to consult with the expert. The expert prepared a report, which was distributed to defense counsel only two days before sentencing, with copies simultaneously provided to the prosecution and the judge. Because McWilliams’s counsel did not have an adequate opportunity to review the expert’s report and diagnoses or mental-health records (which he received only on the morning of sentencing), counsel asked for a continuance of the sentencing hearing, which was denied. During the lunch break on the day of sentencing, counsel then filed a motion to withdraw, stating: “Counsel feels the arbitrary position taken by this Court regarding Defendant’s right to present mitigation circumstances is unconscionable resulting in this proceeding being a mockery.” The court denied counsel’s motion. The full penalty-phase trial lasted less than one day, after which the jury voted 10 – 2 to recommend a death sentence, and the trial judge sentenced McWilliams to death. (In Alabama, the jury recommends a sentence and the ultimate decision is left to the judge. At the time, it was was one of only three states to permit the judge to impose death if the jury recommendation of sentence was not unanimous. It is the only state that still permits such a sentence.)
In 1985, the Supreme Court decided a case establishing that if mental health is a significant factor at trial, then an indigent defendant has a constitutional right to an expert to “assist in evaluation, preparation, and presentation of the defense.” Ake v. Oklahoma, 470 U.S. 68, 83 (1985). McWilliams argued to the state and federal courts that he was denied his right to independent expert assistance in preparing for his capital sentencing hearing. The U.S. Court of Appeals for Eleventh Circuit denied him relief on this claim, finding that Alabama “provided McWilliams access to a competent psychiatrist, and McWilliams relied on the psychiatrist’s assistance.”
You can read the Supreme Court decision reversing the Eleventh Circuit here. You can read the Eleventh Circuit decision denying relief here. You can find briefs filed and additional background on the case here.
MOORE v. TEXAS, No. 15 – 797
Cert. granted: June 6, 2016
Argument: November 29, 2016
Decided: March 28, 2017
On March 28, 2017, the Supreme Court unanimously struck down Texas’ standard for evaluating intellectual disability in death penalty cases, calling the state’s approach to reviewing an individual’s deficits in adaptive functioning an “outlier” that, “[b]y design and in operation, … create[s] an unacceptable risk that persons with intellectual disability will be executed.” Justice Ginsburg, writing for a five-Justice majority, granted relief to Petitioner Bobby James Moore, holding that Texas’s use of non-scientific factors to determine whether a person is ineligible for the death penalty because of intellectual disability is “irreconcilable” with the Court’s precedent and with the Eighth Amendment. The Court said that although states have discretion in how they enforce the constitutional prohibition against applying the death penalty to persons who are intellectually disabled, that discretion is not “unfettered.” When determining whether someone is intellectually disabled, the Court said, states must be “informed by the medical community’s diagnostic framework.” The Court called the “Briseño factors” (named after the Texas court decision that announced them) upon which the Texas Court of Criminal Appeals relied an unscientific “invention” of the CCA that was “untied to any acknowledged source” and that lacked support from “any authority, medical or judicial.” Chief Justice Roberts authored a dissent, joined by Justices Thomas, and Alito, arguing that the CCA had properly rejected Moore’s evidence that he had significantly subaverage intellectual functioning. But the three agreed with the Court in rejecting Texas’ use of the Briseño factors to determine the presence of impairments in adaptive functioning, calling them “an unacceptable method of enforcing the guarantee of Atkins.” Read the majority and dissenting opinions here.
The question presented, as stated in the merits brief filed by Petitioner, Bobby James Moore, is as follows: Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.
You can read Bobby James Moore’s merits brief here; the Brief for the Respondent, State of Texas, here; and Moore’s reply brief here.
You can listen to DPIC’s podcast discussion with Cornell Law School’s Prof. John Blume, recorded the day before the Moore oral argument, here.
Six amici curiae have filed briefs in support of Bobby James Moore: American Civil Liberties Union, and the ACLU of Texas; International Organizations and Individuals Interested in Medical Expertise and Psychiatry; American Psychological Association, et al.; The American Bar Association; The American Association on Intellectual and Developmental Disabilities, et al.; and The Constitution Project.
Two amici curiae briefs have been filed in support of the State of Texas: States of Arizona, et al.; and Criminal Justice Legal Foundation.
In its second Texas death-penalty case this term, the Supreme Court will decide whether Texas’ manner of assessing intellectual disability comports with constitutional requirements.
In 2002, in Atkins v. Virginia, the Supreme Court ruled that the Eighth Amendment prohibits the execution of any person who is intellectually disabled (formerly referred to as mentally retarded). At the time, the Court left up to the states the “task of developing appropriate ways” to determine whether a person meets the definition of intellectual disability (“ID”). This decision resulted in variation among states, including establishing rules that were inconsistent with diagnostic criteria accepted by medical standards. The categorical ban on executing those with ID was reaffirmed in 2014, in Hall v. Florida, and again in 2015, in Brumfield v. Cain. Specifically, in Hall, the Supreme Court rejected Florida’s “rigid rule” that prevented a finding of ID where a person’s IQ was higher than 70 “disregards established medical practice,” which recognizes that IQ scores are not “a single fixed number” but rather a range. In reaching its conclusion, the Court emphasized that “[s]ociety relies upon medical and professional expertise to define and explain how to diagnose the mental condition at issue. And the definition of intellectual disability by skilled professionals has implications far beyond the confines of the death penalty.…”
In Mr. Moore’s case, the state trial court found that Mr. Moore is ID, consistent with the current standards and definitions adopted by the American Psychiatric Association (APA) and the American Association on Intellectual and Developmental Disabilities (AAIDD). The Texas Court of Criminal Appeals, however, reversed that finding, holding that it was inconsistent with the Texas precedent, specifically a case called Ex Parte Briseno. In Briseno, decided in 2004, the Texas Court of Criminal Appeals held that certain questions should be answered by the fact-finder when determining whether a person is intellectually disabled. The questions set forth by the Briseno court are not ones used by professionals in diagnosing persons with ID. Instead, the Texas court adopted criteria for determining intellectual disability that critics and mental health advocates say would merely perpetuate stereotypes and that had no basis in medical literature. For example, the fact-finder must consider whether people who knew the person during childhood, such as family, friends, teachers, employers, authorities, “th[ought] he was mentally retarded.” Other questions also included whether he formulated plans, whether his conduct responsive to external stimuli is rational and appropriate, whether he responds coherently and rationally in response to questions, and whether he could lie in his own or others’ interests. Some of the Briseno factors are based upon the characteristics of the fictional character Lennie Smalls from John Steinbeck’s novel, Of Mice and Men.
Moore was convicted and sentenced to death for his involvement in a grocery store robbery in which 73-year-old James McCarble was killed. Moore’s co-defendant, Willie Albert Koonce, who was identified as the triggerman in the murder, received a life sentence with the possibility of parole and has since been paroled.
(J. Blume, “Why the Supreme Court Must Enforce ‘Atkins ’ Protection in Capital Cases,” National Law Journal, Nov. 7, 2016; P. Aldhous, “Is This Man Smart Enough To Face The Death Penalty?,” BuzzFeed, Nov. 15, 2016; T. Shriver, “Special Olympics Chair: Texas’ Standard of Intellectual Disability Is Horrific,” TIME, Nov. 18, 2016; N. Totenberg, “Texas Death Case Tests Standards For Defining Intellectual Disability,” NPR, Nov. 22, 2016; L. Gostin, “Texas Evaluates Intellectual Disability in Death Penalty Cases Using a Global-Outlier Standard,” American Constitution Society Blog, Nov. 23, 2016; C. Steiker and J. Steiker, “Rein in Texas on executing the intellectually disabled,” Washington Post, Nov. 28, 2016.) For news analysis of the oral argument in Moore v. Texas, see: A. Howe, “Argument analysis: Texas inmate seems likely to prevail in death-row disability challenge,” SCOTUSblog, Nov. 29, 2016; A. de Vogue, “Supreme Court takes up question of death penalty and intellectual disability,” CNN, Nov. 29, 2016; C. Geidner, “Supreme Court Skeptical Of Texas Standards For Intellectual Disability In Death Cases,” BuzzFeed News, Nov. 29, 2016; R. Wolf, “Supreme Court skeptical of Texas on death penalty,” USA Today, Nov. 29, 2016.)
BUCK v. DAVIS, No. 15 – 8049
Cert. granted: June 6, 2016
Argument: Oct. 5, 2016
Decided: Feb. 22, 2017
On February 22, 2017, the Supreme Court granted relief to Texas death-row prisoner, Duane Buck.
Buck was one of seven death-row prisoners whose death sentences were tainted by improper racial testimony presented at their trials. In 2000, then-Texas Attorney General John Cornyn (now a U.S. Senator) confessed the state’s error to the U.S. Supreme Court, noting that seven cases had been tainted by improper prosecution testimony. “It is inappropriate to allow race to be considered as a factor in our criminal justice system,” Cornyn said. “The people of Texas want and deserve a system that affords the same fairness to everyone.” Six death-row prisoners received new sentencing trials, but Buck did not. All seven trials involved testimony by psychologist Walter Quijano, who told juries that defendants were more likely to commit future crimes if they were black or Hispanic. The potential for future dangerousness is a key factor in juries’ sentencing decisions in Texas: it may not impose a death sentence unless it finds that the defendant poses a continuing threat to society.
Defense counsel had retained Dr. Quijano to offer expert testimony on whether Buck posed a continuing threat to society, although Quijano had already presented testimony in other cases that a defendant was more likely to pose a future risk of violence if he was Black. Counsel put Quijano on the stand even after Quijano stated in his expert report that Buck’s race made it more likely that he would commit future acts of violence. Counsel also introduced Quijano’s expert report, containing that race-based conclusion, into evidence in the penalty-phase of Buck’s trial. The prosecutor at Buck’s sentencing trial specifically asked Quijano on cross-examination: “The race factor, black, increases the future dangerousness for various complicated reasons; is that correct?” “Yes,” Quijano said. The prosecution then raised the issue again during closing argument in the penalty phase. During its penalty deliberations, the jury requested a copy of Quijano’s report, and the judge permitted the jury to have a copy of the report.
The question presented in the case – as stated in the merits brief filed by Petitioner, Duane Buck – is as follows:
Duane Buck’s death penalty case raises a pressing issue of national importance: whether and to what extent the criminal justice system tolerates racial bias and discrimination. Specifically, did the United States Court of Appeals for the Fifth Circuit impose an improper and unduly burdensome Certificate of Appealability (COA) standard that contravenes this Court’s precedent and deepens two circuit splits when it denied Mr. Buck a COA on his motion to reopen the judgment and obtain merits review of his claim that his trial counsel was constitutionally ineffective for knowingly presenting an “expert” who testified that Mr. Buck was more likely to be dangerous in the future because he is Black, where future dangerousness was both a prerequisite for a death sentence and the central issue at sentencing?
The 6 – 2 decision in favor of Buck, written by Chief Justice John Roberts, explained that the “law punishes people for what they do, not who they are.” Roberts said that “[d]ispensing punishment on the basis of an immutable characteristic flatly contravenes this guiding principle.” Buck’s case turned on the legal question of whether his lawyer had provided ineffective assistance, and the Court left no doubt on the issue. Chief Justice Roberts wrote that “[n]o competent defense attorney would introduce such evidence about his own client.” Despite counsel’s deficient representation, the lower federal courts had refused to intervene, asserting that the references to race in the case had been brief and would have had only minimal, if any, effect on the jury’s sentencing decision. The Chief Justice squarely rejected that conclusion, writing: “when a jury hears expert testimony that expressly makes a defendant’s race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record. Some toxins can be deadly in small doses.” The Court explained that stereotyping black men as somehow more violence-prone than others is a “particularly noxious strain of racial prejudice.” Buck’s attorney, Christina Swarns, who had argued the case before the Court in October 2016, said “Today, the Supreme Court made clear that there is no place for racial bias in the American criminal justice system.” The decision, she said, reaffirms “the longstanding principle that criminal punishments — particularly the death penalty — cannot be based on immutable characteristics such as race.”
In addition to concluding that Buck’s trial lawyer was ineffective for presenting an expert who would testify that his client’s race made him more dangerous, the Court addressed several procedural issues. The Court determined that the case presented “extraordinary circumstances” that permitted the lower court to re-open the case and hear Buck’s ineffectiveness claim, and also determined that the federal appeals court undertook an improper review of the case when it refused to grant Buck a certificate of appealability to consider the merits of his ineffectiveness claim.
Justice Clarence Thomas, joined by Justice Samuel Alito, dissented, finding that the lower court did not abuse its discretion in denying relief to Buck. Moreover, the dissenting Justices did not believe that the testimony that black people are more violent than others had prejudicial effect on the case.
(L. Hurley, “U.S. top court backs Texas death row inmate in race case,” Reuters, February 22, 2017; P. Williams, “Supreme Court Says Racial Testimony Biased Sentencing,” NBC News, February 22, 2017; “SCOTUS Rules Duane Buck Entitled to New Sentencing Hearing in Texas Racial Bias Death Penalty Case,” Press Release from Duane Buck Defense Lawyers, February 22, 2017; C. Tolan, “Prosecutors said this death row inmate was dangerous because he’s black. Now he’s asking the Supreme Court for a new trial,” Fusion, February 9, 2016; A. Turner, “Lawyers for Houston killer Duane Buck turn to U.S. Supreme Court, Attorneys want to ensure race did not influence sentencing,” Houston Chronicle, February 5, 2016; M. Graczyk, “Split Texas court rejects condemned man’s appeal,” Associated Press, November 20, 2013; S. Kreytak, “Petition: Condemned man’s sentence racially tinged,” Austin American-Statesman, August 31, 2011.)
* You can read the Court’s opinion here. You can read Duane Buck’s merits brief here; the Brief for the Respondent, Lorie Davis, Director of the Texas Department of Criminal Justice, here; and Buck’s reply brief here.
* Six amici curiae filed briefs in support of Duane Buck: the National Black Law Students Association; the Constitutional Accountability Center; the National Association of Criminal Defense Lawyers, et al.; the Lawyers Committee for Civil Rights Under Law; Former Prosecutors; and David Boyle. No amicus briefs were filed in support of the State of Texas.
CASES DECIDED WITHOUT FULL BRIEFING AND ORAL ARGUMENT
JENKINS v. HUTTON, No. 16 – 1116
Cert. granted and decided June 19, 2017
In a unanimous per curiam decision, the Supreme Court reversed the decision of the Sixth Circuit, which had granted penalty-phase habeas relief to Ohio death-row prisoner Percy Hutton. Hutton argued that he had been unconstitutionally sentenced to death because the trial court had failed to instruct his penalty-phase jury about the aggravating circumstances it was required to find as a prerequisite to imposing the death penalty. Hutton’s attorney, however, never objected to this error at trial. Because his attorney failed to object, the claim was procedurally defaulted in federal habeas proceedings. The Sixth Circuit nonetheless reached the merits of the claim (and granted relief based upon the constitutional violation) because it found that the “miscarriage of justice” exception to procedural default applied.
The Supreme Court disagreed, holding that the Sixth Circuit’s application of the “miscarriage of justice” exception was wrong for two reasons. First, the Court held that the jury had found the two aggravating circumstances that provided the basis for the death sentence as part of its verdict in the guilt-innocence phase of trial and therefore the erroneous penalty-phase instructions had no effect on the jury’s decision. Second, the Court noted that the Sixth Circuit applied the wrong analysis when deciding whether someone has met the miscarriage of justice exception by establishing innocence of the death penalty. According to the Court, the proper question to ask is whether “but for a constitutional error, no reasonable jury would have found the petitioner eligible for the death penalty.” Because the Sixth Circuit asked “whether the alleged error might have affected the jury’s verdict,” its decision was reversed. Notably, the decision suggested that the “innocence of the death penalty” exception may not be limited to a showing that the defendant is ineligible for the death penalty, but may also include the jury’s selection-stage factfinding (that is, whether a jury would actually have applied the death penalty given the aggravating and mitigating evidence in the case). In denying relief to Hutton, the Court wrote that “Neither Hutton nor the Sixth Circuit has ‘show[n] by clear and convincing evidence that’ — if properly instructed — ‘no reasonable juror would have’ concluded that the aggravating circumstances in Hutton’s case outweigh the mitigating circumstances.” The Court remanded the case to the Sixth Circuit for further proceedings consistent with its opinion. The Court’s decision can be read here.
RIPPO v. BAKER, No. 16 – 6316
Cert. granted and decided March 6, 2017
In a unanimous per curiam decision, the Supreme Court vacated the opinion of the Nevada Supreme Court, which had ruled against death-row prisoner Michael Rippo. Rippo had alleged that his trial judge had the appearance of bias because the judge was being criminally investigated by the prosecutor, and in connection with his claim, Rippo sought discovery and a hearing on the issue. The Nevada courts denied his request finding that Rippo had not alleged that the judge was actually biased and therefore had not alleged a constitutional violation. The Supreme Court vacated the state-court decision, reiterating that Rippo need not prove actual bias to prevail on claim because the “Due Process Clause may sometimes demand recusal even when a judge ‘ha[s] no actual bias.’ ” The Court remanded the case to the state court to consider “whether, considering all the circumstances alleged, the risk of bias was too high to be constitutionally tolerable.” The Court’s decision can be read here.
BOSSE v. OKLAHOMA, No. 15 – 9173
Cert. granted and decided October 11, 2016
In a unanimous per curiam decision, the Supreme Court granted Shaun Michael Bosse’s petition for writ of certiorari, vacated the judgment of the Oklahoma Court of Criminal Appeals that had affirmed Bosse’s death sentence, and held that Oklahoma prosecutors had improperly presented testimony from three members of the victims’ families asking the jury to sentence Bosse to death. Summarily reversing the decision of the Oklahoma Court of Criminal Appeals, the Court wrote that it has never overruled its 1987 decision in Booth v. Maryland, which prohibits presentation of testimony from victims’ families offering “opinions about the crime, the defendant, and the appropriate punishment” and that the decision “remain[s] binding precedent until we see fit to reconsider [it].”
The decision has systemic impact on death penalty trials in Oklahoma. In a string of cases, the Oklahoma Court of Criminal Appeals had ruled that the U.S. Supreme Court’s 1991 decision in Payne v. Tennessee, which overruled the portion of Booth that had prohibited testimony about the impact of the victim’s death on close family members, had also implicitly overruled Booth’s prohibition against family members offering opinions about the defendant and the appropriate punishment. Oklahoma was the only jurisdiction to have interpreted Payne in that manner. The decision prevents Oklahoma prosecutors from presenting this unconstitutional testimony in the future. The impact on the numerous Oklahoma cases in which state courts permitted this testimony to be presented is less clear. The Court ruled that, on remand, Oklahoma’s courts were free to address whether admission of the unconstitutional testimony constituted harmless error and whether the sentencing review mandated by Oklahoma state law in capital cases adequately protected Bosse’s rights, despite the constitutional violation.
Justices Clarence Thomas and Samuel Alito concurred in the decision. Thomas wrote that he understood the majority’s opinion as “say[ing] nothing about whether Booth was correctly decided or whether Payne swept away its analytical foundations.”
(A. Howe, “No grants from morning orders,” SCOTUSblog, October 11, 2016.) You can read Shaun Michael Bosse’s petition for writ of certiorari here and Oklahoma’s brief in opposition to the petition here, as well as the Court’s opinion in Bosse v. Oklahoma, No. 15 – 9173.
Grants of Certiorari — Decisions Pending at Close of Term
WILSON v. SELLERS, No. 16 – 6855
Cert. granted: February 27, 2017
Argument: October 30, 2017
Decided: April 17, 2018
The question presented, as stated in the merits brief filed by Petitioner, Marion Wilson, a prisoner on Georgia death row, was as follows:
Did this Court’s decision in Harrington v. Richter, 562 U.S. 86 (2011), silently abrogate the presumption set forth in Ylst v. Nunnemaker, 501 U.S. 797 (1991) – that a federal court sitting in habeas proceedings should “look through” a summary state court ruling to review the last reasoned decision – as a slim majority of the en banc Eleventh Circuit held in this case, despite the agreement of both parties that the Ylst presumption should continue to apply?
In lay terms, the Court is asked to decide whether federal courts reviewing a claim in a petition for writ of habeas corpus should consider the findings and reasoning of a lower state court which denied that claim where the state appellate court issued no opinion. In the 1991 Supreme Court decision of Ylst v. Nunnemaker, the Court held that “[w]here 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.” But twenty years later, in 2011, the Supreme Court decided Harrington v. Richter, which addressed a situation in which the state court that considered the claim issued only a summary denial without any written opinion. The Supreme Court ruled that, under those circumstances, federal courts must treat the issues raised in the petition as if the state court decided them on the merits. It further ruled that the federal court must deny habeas relief on the claim if it can think of any reasonable basis to justify the state court’s decision, whether or not that is actual reason the state court denied the claim.
In this case, Mr. Wilson was sentenced to death in Baldwin County, Georgia in 1997. In his state post-conviction proceedings, he alleged that his trial counsel had been ineffective in failing to investigate and present available mitigating evidence. After holding an evidentiary hearing, the trial-level state habeas court denied relief, issuing a written order explaining the court’s reasoning. Mr. Wilson then asked the Georgia Supreme Court for permission to appeal the order, which the court summarily denied in a one-sentence order. Wilson then reasserted the his ineffective assistance of counsel as part of his federal habeas corpus petition, and argued that the state court had unreasonably determined the facts and unreasonably applied the law when it denied him relief on this claim. Although the Georgia federal district court denied relief, it nevertheless found that the state court’s decision had been deeply flawed, both factually and legally.
On appeal, the U.S. Court of Appeals for the Eleventh Circuit, in a splintered 6 – 5 en banc decision, ruled that the district court should not have reviewed the opinion of the trial-level state habeas court at all because the Georgia Supreme Court had issued a summary denial of relief. Applying the rule in Richter to cases in which there had been a reasoned lower state-court opinion, the Eleventh Circuit concluded that “federal courts need not ‘look through’ a summary decision on the merits to review the reasoning of the lower state court.” The Court decided only this specific legal issue and sent the case back to the 3‑judge panel to consider the remaining issues in Wilson’s case.
The same issue was raised last Term by another Georgia death-row prisoner, Travis Hittson, who was executed on February 17, 2016. Justice Ginsburg, joined by Justice Kagan, wrote an opinion concurring in the denial of certiorari in Hittson’s case, but suggesting that the Eleventh Circuit had erred when it ignored the actual reasoning of the trial court judge and instead created “hypothetical theories that could have supported the Georgia Supreme Court’s unexplained order.” In that case, Justice Ginsburg did not think certiorari was appropriate, because even though the Eleventh Circuit had misapplied the law, she believed the district court had correctly denied relief; she also noted that the Eleventh Circuit had already agreed to review Wilson’s case en banc and would have the opportunity to correct its mistake.
You can read the Petition for Writ of Certiorari here; you can read the Brief in Opposition for the Respondent, Eric Sellers, Warden here; and you can read the Eleventh Circuit opinion here.
AYESTAS v. DAVIS, No. 16 – 6795
Cert. granted: April 3, 2017
Argument: October 30, 2017
Decided: March 21, 2018
The question presented,* as stated in the merits brief filed by Petitioner, Carlos Ayestas, a prisoner on Texas death row, was as follows:
Whether the Fifth Circuit erred in holding that 18 U.S.C. § 3599(f) withholds “reasonably necessary” resources to investigate and develop an IAC [ineffective assistance of counsel] claim that state habeas counsel forfeited, where the claimant’s existing evidence does not meet the ultimate burden of proof at the time the § 3599(f) motion is made.
(*Ayestas presented two questions for review, but the Supreme Court only granted review of the second question.)
Ayestas, who has been diagnosed since trial with schizophrenia, was convicted and sentenced to death in Harris County, Texas in 1997. After his state appeals were completed, Ayestas alleged in his federal habeas proceedings that his trial counsel was ineffective for failing to investigate, develop, and present mitigating evidence – particularly evidence of mental illness and drug addiction – and that his state post-conviction attorneys were likewise ineffective for failing to present this claim during the state post-conviction proceedings. The federal district court and the Fifth Circuit Court of Appeals denied Ayestas relief for procedural reasons, but while his appeal was pending, the Supreme Court decided Trevino v. Thaler, and Ayestas’s case was remanded for further consideration of the claim. On remand, the district court denied Ayestas’s request for funding to investigate and develop the factual basis for his claim – a request that was necessary in order to show that he was prejudiced from his prior counsel’s inadequate performance. Under the applicable federal statute, a prisoner will be entitled to funding that is “reasonably necessary” to investigate and develop his claims, but the Fifth Circuit has interpreted “reasonably necessary” to require a showing of “substantial need.” The Fifth Circuit affirmed the denial of funding in Ayestas’s case, finding that the claim was not worthy of fact development because “even if Ayestas had entered the early stages of an as-yet undiagnosed mental illness, [it] f[ou]nd it at best to be conceivable, but not substantially likely, that the outcome may have been different.” In other words, without having the benefit of funding to develop a claim, the Fifth Circuit determined that Ayestas had not shown prejudice supporting his claim.
You can read the Petition for Writ of Certiorari here; you can read the Brief in Opposition for the Respondent, Loris Davis, Director of Texas Department of Criminal Justice here; you can read Petitioner’s Reply Brief here; and you can read the Fifth Circuit opinion here.
Orders of the Court and Related Items
On January 31, 2017, President Donald Trump announced his nomination of Neil Gorsuch to fill the vacancy left in February by Justice Antonin Scalia’s death and the U.S. Senate’s refusal to consider former-President Barack Obama’s nomination of Merrick Garland. On April 4, 2017, Judge Gorsuch was confirmed in a vote 54 – 45 by the Senate as the 113th Justice of the Supreme Court. (See C. Johnson, Who Is Neil Gorsuch, Trump’s First Pick For The Supreme Court?, NPR, January 31, 2017; S. Sullivan, A. Phillips, and E. O’Keefe, A fractured U.S. Senate awaits Supreme Court nominee Neil Gorsuch, Washington Post, January 31, 2017; A. Liptak and M. Flegenheimer, Neil Gorsuch Confirmed by Senate as Supreme Court Justice, New York Times, Apr. 4, 2017.)
Certiorari Granted — Judgment Vacated and Case Remanded
Johnson v. Alabama, No. 16 – 7835 (U.S. June 26, 2017), cert. granted, judgment vacated, and case remanded to the Alabama Court of Criminal Appeals for further consideration in light of the State’s position asserted in its brief. The question presented by Alabama death-row prisoner Toforest Johnson was: Whether a state court can enforce a rule that Brady v. Maryland does not apply to impeachment evidence when the Supreme Court has held that Brady does apply to impeachment evidence. In response to the prisoner’s petition for a writ of certiorari, Alabama asked the Court for the relief that was provided here because the state law had changed since this case was decided. Chief Justice Roberts (joined by Justices Thomas, Alito, and Gorsuch) dissented.
Carroll v. Alabama, No. 16 – 7685 (U.S. May 1, 2017), cert. granted, judgment vacated, and case remanded to the Eleventh Circuit Court of Appeals for further consideration in light of Moore v. Texas. The grant of certiorari in Carroll’s case suggests that the Court understands the holding in Moore as encompassing more than a rejection of the Texas Briseno factors in assessing the presence or absence of adaptive deficits. Carroll argued that the Alabama court’s rejection of his intellectual disability claim was inconsistent with Moore in several different ways. With respect to the question of whether he had proven that his IQ scores fell within the intellectually disabled range, he argued that Alabama’s use of a strict IQ cutoff score and refusal to consider the standard error of measurement and the “Flynn Effect” — a scientifically established phenomenon in which IQ test scores are inflated as a result of outdated test norms — violated Hall v. Florida’s and Moore’s directive that determinations of intellectual disability be guided by accepted medical standards. And with respect to the question of whether he had proven that he had significant deficits in adaptive functioning, he argued that the state court violated Moore when it credited Mr. Carroll’s supposed adaptive strengths — that he had passed a GED exam and successfully held down a job in the prison kitchen — as proof that he did not have the adaptive deficits that supported a finding of intellectual disability. Read Mr. Carroll’s Petition for Writ of Certiorari, Alabama’s Brief in Opposition, and Mr. Carroll’s Reply Brief in Support of Petition for Writ of Certiorari.
Henderson v. Davis, No. 15 – 7974 (U.S. Apr. 3, 2017), cert. granted, judgment vacated, and case remanded to the Fifth Circuit Court of Appeals for further consideration in light of Moore v. Texas.
Martinez v. Davis, No. 16 – 6445 (U.S. Apr. 3, 2017), cert. granted, judgment vacated, and case remanded to the Fifth Circuit Court of Appeals for further consideration in light of Moore v. Texas.
Russell v. Alabama, No. 15 – 9918 (U.S. Oct. 3, 2016), cert. granted, judgment vacated, and case remanded to the Alabama Court of Criminal Appeals for further consideration in light of Hurst v. Florida. The decision in the case of Ryan Russell marked the fourth time in 2016 that the U.S. Supreme Court reversed the Alabama courts in a death penalty case and directed them to reconsider the constitutionality of the state’s death penalty statute in light of Hurst.
Denials of Review, With Statements by Individual Justices
Smith v. Ryan, No. (U.S. Apr. 24, 2017), cert. denied. In this case out of Arizona, Justice Breyer wrote a statement respecting the denial of certiorari and questioned the purpose of lengthy stay on death row (in this case, nearly 40 years) and in solitary confinement for prisoner Joe Smith. While Justice Breyer recognized the procedural obstacles in Smith’s case, he urged the Supreme Court and other courts to consider the constitutional question of whether the capital punishment system is applied in a random and arbitrary manner. In his opinion, the “facts and circumstances of Smith’s case reinforce that conclusion.”
Ruiz v. Texas, No. 16 – 7792 (16A841) (U.S. Mar. 7, 2017), application for stay denied. Justice Breyer dissented from the Court’s denial of an application for stay of execution for Rolando Ruiz, who was executed by Texas on March 7, 2017. Ruiz had asked the Court to consider whether his permanent solitary confinement on death row violates the Eighth Amendment. Justice Breyer pointed out that “Mr. Ruiz has developed symptoms long associated with solitary confinement, namely severe anxiety and depression, suicidal thoughts, hallucinations, disorientation, memory loss, and sleep difficulty.” Citing several of the Court’s opinions, including one from Justice Kennedy, Justice Breyer urged that “[i]f extended solitary confinement alone raises serious constitutional questions, then 20 years of solitary confinement, all the while under threat of execution, must raise similar questions, and to a rare degree, and with particular intensity.”
Reed v. Louisiana, No. 16 – 656 (U.S. Feb. 27, 2017), cert. denied. The Court denied certiorari in a capital case out of Caddo Parish, Louisiana, in which Marcus Reed asked the Court to decide “[w]hether imposition of the death penalty constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.” Reed urged the Court to take the case, arguing that “Capital punishment is now constrained to a dwindling handful of locations, reserved not for the most culpable offenders, but for those unlucky few prosecuted under anachronistic circumstances. The declining numbers of death sentences and executions has not ensured that capital punishment is applied more carefully but rather enhanced the ‘not altogether satisfactory’ application of the punishment.” Justice Breyer dissented from the denial of review, noting that Caddo Parish has sentenced more people to death per capita than any other U.S. county. Justice Breyer wrote: “The arbitrary role that geography plays in the imposition of the death penalty, along with the other serious problems I have previously described, has led me to conclude that the Court should consider the basic question of the death penalty’s constitutionality.”
Arthur v. Dunn, No. 16 – 602 (U.S. Feb. 27, 2017), cert. denied. After repeatedly relisting the case for conferencing, the Supreme Court on February 21, 2017 denied review of Alabama death-row prisoner Thomas Arthur’s challenge to Alabama’s lethal injection protocol. Justice Sotomayor, joined by Justice Breyer, authored an 18-page dissent to the denial of certiorari.
In November 2016, the Court had granted Arthur a stay of execution to permit it to consider his petition for writ of certiorari. Four Justices indicated that they would vote to grant a stay — enough to grant review of a case, but not enough to stop an execution that would render review moot. At that time, Chief Justice Roberts cast a fifth vote to stay the execution, and in a statement accompanying the order granting the stay, characterized his vote as a “courtesy” to afford his colleagues the “opportunity to more fully consider the suitability” of the case for review. However, the Chief Justice made clear that he did not believe the case merited the Court’s review because “the claims set out in the application are purely fact-specific, dependent on contested interpretations of state law, insulated from our review by alternative holdings below, or some combination of the three.”
The denial of a petition for certiorari is a decision not to review a petitioner’s claims, not a rejection of the merits of the claims themselves. The Court did not indicate the basis for its decision declining to reach Arthur’s claims, and the justices who might have sided with Arthur might well have determined that the procedural barriers alluded to by the Chief Justice may have made this case an inappropriate vehicle to address the constitutional issues his petition presented.
Justice Sotomayor’s dissent addressed the merits of many of the issues raised by Arthur and criticized the Court’s refusal to review the decision of the U.S. Court of Appeals for the Eleventh Circuit in this case. Allowing that decision to stand, she wrote, “permits a State, by statute, to bar a death-row inmate from vindicating a right guaranteed by the Eighth Amendment.”
In this case, Arthur challenged Alabama’s use of midazolam in a three-drug protocol and presented expert testimony demonstrating the drug’s inability to adequately act as an anesthetic. As is now required by the majority decision in Glossip v. Gross (2015), Arthur also proposed alternatives to the state’s current lethal-injection protocol. Initially he had proposed other execution drugs, but the lower court rejected them as being unavailable to the state. He then proposed execution by firing squad. The Eleventh Circuit rejected Arthur’s claim on the grounds that the firing squad was not an available alternative because Alabama law did not authorize its use as a method of execution and was not obligated to amend its laws to make it an available method. Justice Sotomayor disagreed, explaining:
The decision below is all the more troubling because it would put an end to an ongoing national conversation — between the legislatures and the courts — around the methods of execution the Constitution tolerates.… Evolving standards have yielded a familiar cycle: States develop a method of execution, which is generally accepted for a time. Science then reveals that — unknown to the previous generation — the States’ chosen method of execution causes unconstitutional levels of suffering. A new method of execution is devised, and the dialogue continues. The Eighth Amendment requires this conversation. States should not be permitted to silence it by statute.
Justice Sotomayor stressed that the Eleventh Circuit’s reasoning “contravenes basic constitutional principles” because it “condition[s] federal constitutional rights on the operation of state statutes” — a decision that runs afoul of centuries-old precedent reinforcing that the Supreme Court is the “final arbiter of the Federal Constitution.” As she explained, there will be non-uniformity in the law, as the protections of the Eighth Amendment will depend the state in which a prisoner is executed because some state statutes allow firing squad as an alternative. “Nowhere is the need for uniformity more pressing than the rules governing States’ imposition of death.”
Justice Sotomayor also took issue with the lower court’s characterization of Glossip v. Gross as having upheld the use of midazolam-based execution protocols as constitutionally acceptable. “Glossip,” she wrote, “did no such thing.” Quoting the Glossip opinion, she said that the majority opinion had concluded only that, “based on the facts presented in that case, ‘[t]he District Court did not commit clear error when it found that midazolam is highly likely to render a person unable to feel pain during an execution.’” The state of knowledge, as evidenced both by expert medical opinions and the facts emerging from the repeated botched executions using midazolam, has changed since then:
Science and experience are now revealing that, at least with respect to midazolam-centered protocols, prisoners executed by lethal injection are suffering horrifying deaths beneath a ‘medically sterile aura of peace.’ … Like a hangman’s poorly tied noose or a malfunctioning electric chair, midazolam might render our latest method of execution too much for our conscience— and the Constitution — to bear.
Justices Sotomayor and Breyer also dissented from the denial of certiorari in another death-penalty case challenging lethal injection in Arkansas, Johnson v. Kelley, No. 16 – 6496.
On April 24, the Court denied the petition for rehearing in Arthur and in Johnson; Justice Sotomayor would have granted them.
Sireci v. Florida, No. 16 – 5247 (U.S. Dec. 12, 2016), cert. denied. The Court declined to review the decision of the Florida Supreme Court upholding the death sentence imposed on Henry Perry Sireci in Florida. Justice Breyer dissented, noting that the extraordinary length of time that Sireci has spent on death row (forty years) as one of the problems with the death penalty. Justice Breyer stressed, as he has in other dissents, that “the time has come for this Court to reconsider the constitutionality of the death penalty.”
Elmore v. Holbrook, No. 15 – 7848 (U.S. Oct. 17, 2016), cert. denied. The Court declined to review the decision of the United States Court of Appeals for the Ninth Circuit in federal habeas corpus proceedings upholding the death sentence imposed on Clark Elmore in Washington State. Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsberg, dissented.
The case presented two potential issues for review: “(1) Whether capital defense counsel may decide to present evidence of a single mitigating factor without having first conducted a thorough investigation of other potential mitigating factors and whether counsel’s post-hoc concern about possible rebuttal evidence justifies the failure to investigate; and (2) whether, where a state court provides a reasoned decision denying relief, 18 U.S.C. Section 2254(d) permits a federal court to ignore the reasoning of the state court and substitute its own reasons for denying relief and whether the violent nature of the crime lessens the prejudice from unconstitutional shackling.”
The Petitioner, Clark Elmore, was represented at trial by a lawyer who had never before handled a capital case. Counsel failed to investigate and uncover evidence that Elmore had suffered brain damage resulting in part from his exposure to neurotoxins as a child and again when he served in the Army in Vietnam, where he had handled Agent Orange. Counsel also failed to investigate evidence of trauma that Elmore suffered from being repeatedly raped while serving time in prison for non-violent offenses. Only two months after his appointment, and without having investigated these and other facts, counsel advised Elmore to plead guilty to capital murder without receiving any agreement or concession from the prosecution regarding the sentence. As a result, Elmore had only a sentencing hearing in front of a jury. In that hearing, counsel allowed Elmore to appear in shackled in front of the sentencing jury, without objecting. His lawyer then presented a less than one-hour mitigation case consisting of testimony from court personnel who did not personally know Elmore, but were asked to provide testimony that he was remorseful, based solely on having observed Elmore’s demeanor during pretrial proceedings.
In dissent, Justice Sotomayor, joined by Justice Ginsburg, said that she would have summarily granted relief in the case, asserting that trial counsel’s deficient performance had been prejudicial to Elmore. She wrote: “Whether our system of capital punishment is inconsistent with the Eighth Amendment … is not at issue here. I do believe, however, that whatever flaws do exist in our system can be tolerated only by remaining faithful to our Constitution’s procedural safeguards.… Only upon hearing such facts can a jury fairly make the weighty — and final — decision whether such a person is entitled to mercy.”
The case had been distributed for conference by the Justices ten times, and conferencing had been rescheduled three other times.
Decisions declining to review petitions for certiorari filed by the state
Neal v. Kubsch, No. 16 – 1021 (U.S. May 22, 2017), cert. denied. Indiana had asked the Supreme Court to reverse the 6 – 3 en banc decision of the U.S. Court of Appeals for the Seventh Circuit, issued in September 2016, which vacated the conviction and death sentence of Indiana death-row prisoner Wayne Kubsch. Kubsch was charged with the murders of his wife, her ex-husband, and their son. At both his initial trial and his retrial after the state courts had reversed his first conviction, Kubsch’s only theory of defense was that he was innocent of the charges against him. The state had no direct evidence linking him to the murders. Instead, it presented only circumstantial evidence based upon the theory that Kubsch had murdered the victims between 1:53 pm and 2:51 pm on a single day; the victims were discovered dead at 5:30 pm on that same day. There was one witness who would have rebutted the state’s theory: Mandy, a nine-year-old classmate and best friend of the youngest victim, who told police officers that she saw both her classmate and his father after school around 3:30pm — at a time that Kubsch was not even in town. Mandy, accompanied by her mother, provided an interview, which was videotaped, only a few days after the crime. When Kubsch called her to testify regarding these facts at his retrial, Mandy — who was then 16-years-old — had no recollection of the events. Even though Mandy had given a videotaped interview contemporaneous with the crime, the state court would not allow Kubsch to introduce the interview in support of his innocence defense. The Seventh Circuit held that the state’s failure to allow Mandy’s interview — “the strongest evidence on Kubsch’s only theory of defense” — into evidence violated his constitutional right to due process. In reaching its decision, the federal appeals court relied on a 1973 Supreme Court case, Chambers v. Mississippi, which stated, “Few rights are more fundamental than that of an accused to present witnesses in his own defense.” The Seventh Circuit found that “the jury should have been given the chance to evaluate this case based on all the evidence, rather than on the basis of a truncated record that omitted the strongest evidence the defense had.” The Court’s denial of Indiana’s petition leaves in place the Seventh Circuit’s order directing the state to grant Kubsch a new trial.
Ryan v. Washington, No. 16 – 840 (U.S. April 17, 2017), cert. denied. Arizona had asked the Supreme Court to reverse the 6 – 5 en banc decision of the U.S. Court of Appeals for the Ninth Circuit, issued in August 2016, which allowed Arizona death-row prisoner Theodore Washington to have an appeal from the denial of habeas relief, even though his attorneys missed the filing deadline for his notice of appeal by one day.
Ryan v. McKinney, No. 15 – 1222 (U.S. Oct. 3, 2016), cert. denied. Arizona had asked the Supreme Court to reverse the 6 – 5 en banc decision of the U.S. Court of Appeals for the Ninth Circuit, issued in December 2015, which held that Arizona courts had been violating clearly established principles of Eighth Amendment law for more than a decade by refusing to consider mitigating evidence unless that evidence had a causal link to the crime. The opinion below overturned the death sentence imposed on Arizona death-row prisoner James McKinney. The U.S. Supreme Court had consistently held since Lockett v. Ohio in 1978 that capital sentencers must consider and give mitigating effect to any information relating to the defendant’s character, background, or record, or the circumstances of the offense that the defendant offers as a basis to spare his or her life. In 1981, in Eddings v. Oklahoma, the Court specifically held that the sentencer may not require that the defendant’s mitigating evidence be related to or otherwise excuse the offense, and in 2004, the Court held that this clear precedent prohibited states from adopting any “causal nexus” test, requiring that the evidence be related to the circumstances of the offense before it could be considered mitigating. According to news reports, the Ninth Circuit opinion, which now remains in effect, “calls into question every single death sentence imposed in Arizona between 1989 and 2005,” which observers estimate to be about 25 cases.
Wetzel v. Moore, 15 – 1411 (U.S. Oct. 3, 2016), cert. denied. Pennsylvania had asked the Supreme Court to reverse the decision of the U.S. Court of Appeals for the Third Circuit affirming a U.S. District Court’s grant of a new trial to former death-row prisoner Tyrone Moore. The district court had ruled that Moore’s trial lawyer ineffectively represented Moore in his trial for robbery and murder by failing to investigate and present alibi testimony available from one of the men actually involved in the robbery, who would have testified that Moore was not present, had no involvement in the crime, and did not shoot anyone. The court also held that counsel was ineffective for failing to impeach a prosecution witness with the favorable deal he had received from the prosecution in exchange for his testimony against Moore. Earlier, Pennsylvania’s state courts had overturned Moore’s death sentence because of the same lawyer’s ineffectiveness in failing to investigate and present mitigating evidence. After Moore was resentenced to life, he was able to initiate federal habeas corpus proceedings challenging his conviction. Following the Court’s denial of certiorari, the parties negotiated a plea in which Moore pled no contest to lesser charges and was released from prison for time served.
(See T. Kellar, “Man convicted in deadly 1982 shooting in Forty Fort to be released from prison,” Times Leader, December 22, 2016.)
Jones v. Hardwick, No. 15 – 1379 (U.S. Oct. 3, 2016), cert. denied. Florida has asked the Supreme Court to reverse the decision of the U.S. Court of Appeals for the Eleventh Circuit affirming a Florida federal district court’s ruling overturning the death sentence of John Gary Hardwick, Jr. as a result of the ineffective assistance of counsel in the penalty phase of his trial.
Decisions declining to review petitions for certiorari filed on behalf of death-row prisoners, without opinion
Kuenzel v. Alabama, No. 16 – 213 (U.S. Oct. 31, 2016), declining to review the decision of the Alabama Court of Criminal Appeals refusing on procedural grounds to address William Kuenzel’s claim that prosecutors unconstitutionally withheld evidence that an eyewitness who testified that she saw Kuentzel at the murder scene had told authorities that she could not identify the men she saw. Kuenzel was convicted based on the testimony of a co-defendant who initially did not implicate Kuenzel, but then testified against Kuenzel in a plea deal to avoid facing the death penalty himself. Kuenzel has always maintained his innocence, and presented alibi testimony from his step-father testify he was asleep when the murder happened. Former U.S. Attorney General Edwin Meese, III filed an amicus brief in support of Kuentzel.
Ray v. Alabama Department of Corrections, No. 16 – 5295 (U.S. Oct. 31, 2016), declining to review the decision of the United States Court of Appeals for the 11th Circuit in federal habeas corpus proceedings upholding the death sentence imposed in Alabama on Domineque Ray. The issue on appeal was whether Ray’s lawyer, who presented a sparse case in mitigation, had been ineffective for failing to investigate and present readily available mitigating evidence relating to Ray’s traumatizing childhood, mental deficiencies, and steroid abuse. After a state court evidentiary hearing, the state trial court denied relief, signing the state’s 107-page proposed order verbatim.
Hamm v. Allen, No. 15 – 8753 (U.S. Oct. 3, 2016), declining to review the decision of the United States Court of Appeals for the 11th Circuit in federal habeas corpus proceedings upholding the death sentences imposed in Alabama on Doyle Lee Hamm. After a state court evidentiary hearing, the state trial court denied relief, signing the state’s 87-page proposed order verbatim, within one business day of its filing, and without even crossing out the word “Proposed” from the order.
Butler v. Stephens, No. 15 – 7350 (U.S. Oct. 3, 2016), rehearing denied. Steven Butler had asked the Court to reconsider its denial of his petition for writ of certiorari declining to review a decision of the United States Court of Appeals for the Fifth Circuit that had denied him relief on his claim that he was ineligible for the death penalty because of intellectual disability. The Circuit Court had remanded Butler’s case to the District Court for additional habeas corpus proceedings addressing other issues in the case.
Habeas Corpus Resource Center, et al., v. Dep’t of Justice, et al., No. 16 – 880, certiorari denied (U.S. Mar. 20, 2017). On January 10, 2017, the Habeas Corpus Resource Center (a California public defense organization) and the Office of the Federal Public Defender for the District of Arizona filed a Petition for Writ of Habeas Corpus in the U.S. Supreme Court seeking review of a Ninth Circuit ruling allowing the U.S. Department of Justice to move forward with regulations that provide for expedited federal habeas corpus review of death-penalty cases. Under the promulgated regulations, the State must meet certain standards before it is entitled to expedited review of a state-imposed death sentence. According to the Petition, however, these regulations are “fraught with legal infirmities, most notably a broad catch-all provision for evaluating the efficacy of a State’s mechanism for appointing state postconviction counsel that threatens to allow most any State to qualify.” Petitioners sought review of questions related to standing (whether they can sue DOJ) and ripeness (whether the case is ready to be heard), but on March 20, the Supreme Court declined to review the Ninth Circuit decision. Read a summary of the Ninth Circuit decision here.
Three amicus briefs were filed in support of the Petition: brief of American Bar Association; brief of National Ass’n of Federal Defenders, National Legal Aid & Defender Ass’n, and National Ass’n of Criminal Defense Lawyers, and brief of The Center for Reproductive Rights, the Southern Povery Law Center, the National Health Law Program, the Southern Coalition for Social Justice, the Center for Inquiry, the National Center for Lesbian Rights, the Campaign Legal Center, Inc., and the Juvenile Law Center.
Other decisions declining to review petitions for writ of certiorari, without opinion
Jones v. Jones, No. 16 – 8668 (U.S. June 12, 2017), declining to review the decision of the United States Court of Appeals for the Eleventh Circuit in federal habeas corpus proceedings and upholding the death sentence imposed in Florida on Harry Jones.
Eldridge v. Davis, No. 16 – 8125 (U.S. June 4, 2017), declining to review the decision of the United States Court of Appeals for the Fifth Circuit, which affirmed the district court’s finding that Texas death-sentenced prisoner Gerald Eldridge is competent to be executed.
Franklin v. Jenkins, No. 16 – 8009 (U.S. May 29, 2017), declining to review the decision of the United States Court of Appeals for the Sixth Circuit in his federal habeas corpus post-judgment motion [60(b)] proceedings and upholding the death sentence imposed in Ohio on Antonio Franklin.
Ramos v. Davis, No. 16 – 7454 (U.S. May 15, 2017), declining to review the decision of the United States Court of Appeals for the Fifth Circuit in federal habeas corpus proceedings and upholding the death sentence imposed in Texas on Robert Moreno Ramos.
Brinkley v. Sheldon, No. 16 – 7984 (U.S. May 15, 2017), declining to review the decision of the United States Court of Appeals for the Sixth Circuit in federal habeas corpus proceedings and upholding the death sentence imposed in Ohio on Grady Brinkley.
Greene v. Kelley, No. 16 – 7425 (U.S. May 1, 2017), declining to review the decision of the United States Court of Appeals for the Eighth Circuit in federal habeas corpus proceedings and upholding the death sentence imposed in Arkansas on Jack Gordon Greene.
Richtie v. Neal, No. 16 – 7101 (U.S. Apr. 17, 2017), declining to review the decision of the United States Court of Appeals for the Seventh Circuit in federal habeas corpus proceedings and upholding the death sentence imposed in Indiana on Benjamin Ritchie.
Ledford v. Sellers, No. 16 – 6444 (U.S. Apr. 3, 2017), declining to review the decision of the United States Court of Appeals for the Eleventh Circuit in federal habeas corpus proceedings and upholding the death sentence imposed in Georgia on J.W. Ledford.
Payne v. Tennessee, No. 16 – 395 (U.S. Mar. 20, 2017), declining to review the decision of the Supreme Court of Tennessee on issue related to Atkins v. Virginia and upholding the death sentence imposed in Tennessee on Pervis Tyrone Payne.
Sims v. Tennessee, No. 16 – 445 (U.S. Mar. 20, 2017), declining to review the decision of the Supreme Court of Tennessee on issue related to Atkins v. Virginia and upholding the death sentence imposed in Tennessee on Vincent Sims.
Styers v. Ryan, No. 16 – 7184 (U.S. Mar. 20, 2017), declining to review the decision of the United States Court of Appeals for the Ninth Circuit in federal habeas corpus proceedings and upholding the death sentence imposed in Arizona on James Styers.
Smith v. Royal, No. 16 – 7393 (U.S. Mar. 20, 2017), declining to review the decision of the United States Court of Appeals for the Tenth Circuit in federal habeas corpus proceedings on issue related to Atkins v. Virginia and upholding the death sentence imposed in Oklahoma on Michael Smith.
Young v. Davis, No. 16 – 7032 (U.S. Mar. 6, 2017), declining to review the decision of the United States Court of Appeals for the Fifth Circuit in federal habeas corpus proceedings and upholding the death sentence imposed in Texas on Christopher Young.
Stouffer v. Royal, No. 16 – 7405 (U.S. Mar. 6, 2017), declining to review the decision of the United States Court of Appeals for the Tenth Circuit in federal habeas corpus proceedings and upholding the death sentence imposed in Oklahoma on Bigler Jobe Stouffer, II.
Moses v. Thomas, No. 16 – 5507 (U.S. Feb. 27, 2017), declining to review the decision of the United States Court of Appeals for the Fourth Circuit in federal habeas corpus post-judgment motion [60(b)] proceedings and upholding the death sentence imposed in North Carolina on Errol Duke Moses.
Jimenez v. Jones, No. 16 – 6115 (U.S. Feb. 27, 2017), declining to review the decision of the United States Court of Appeals for the Eleventh Circuit in federal habeas corpus post-judgment motion [60(b)] proceedings and upholding the death sentence imposed in Florida on Jose Jimenez.
Norman v. Davis, No. 16 – 5307 (U.S. Feb. 27, 2017), declining to review the decision of the United States Court of Appeals for the Fifth Circuit in federal habeas corpus proceedings and upholding the death sentence imposed in Texas on LeJames Norman.
Lave v. Davis, No. 16 – 6489 (U.S. Feb. 27, 2017), declining to review the decision of the United States Court of Appeals for the Fifth Circuit in federal habeas corpus proceedings and upholding the death sentence imposed in Texas on Joseph Roland Lave, Jr.
Jordan v. Fisher, No. 16 – 6903 (U.S. Feb. 21, 2017), declining to review the decision of the United States Court of Appeals for the Fifth Circuit in civil-rights challenge to compounded pentobarbital related to death sentences imposed on Richard Jordan and Ricky Chase on Mississippi.
Norris v. Davis, No. 16 – 6939 (U.S. Feb. 21, 2017), declining to review the decision of the United States Court of Appeals for the Fifth Circuit in federal habeas corpus proceedings and upholding the death sentence imposed in Texas on Michael Wayne Norris.
Gates v. Davis, No. 16 – 6982 (U.S. Feb. 21, 2017), declining to review the decision of the United States Court of Appeals for the Fifth Circuit in federal habeas corpus proceedings and upholding the death sentence imposed in Texas on Bill Douglas Gates.
Rhoades v. Jones, No. 16 – 7087 (U.S. Feb. 21, 2017), declining to review the decision of the United States Court of Appeals for the Eleventh Circuit in federal habeas corpus proceedings and upholding the death sentence imposed in Florida on Richard W. Rhoades Jr.
Mann v. Ryan, No. 16 – 7203 (U.S. Feb. 21, 2017), declining to review the decision of the United States Court of Appeals for the Ninth Circuit in federal habeas corpus proceedings and upholding the death sentence imposed in Arizona on Eric Mann.
Clark v. Jones, No. 16 – 7312 (U.S. Feb. 21, 2017), declining to review the decision of the United States Court of Appeals for the Eleventh Circuit in federal habeas corpus proceedings and upholding the death sentence imposed in Florida on Ronald Wayne Clark, Jr.
Arthur v. Alabama, No. 16 – 595 (U.S. Jan. 23, 2017), declining to review the decision of the Alabama Supreme Court upholding the death sentence imposed in Alabama on Thomas Arthur based on Hurst v. Florida.
Sully v. Davis, No. 16 – 6603 (U.S. Jan. 23, 2017), declining to review the decision of the United States Court of Appeals for the Ninth Circuit in federal habeas corpus proceedings upholding the death sentence imposed in California on Anthony Sully.
Ramirez v. Davis, No. 16 – 596 (U.S. Jan. 9, 2017), declining to review the decision of the United States Court of Appeals for the Eleventh Circuit in federal habeas corpus proceedings upholding the death sentence imposed in Texas on Ruben Cardenas Ramirez.
Simon v. Fisher, No. 16 – 6085 (U.S. Jan. 9, 2017), declining to review the decision of the United States Court of Appeals for the Fifth Circuit in federal habeas corpus proceedings finding prisoner competent to be executed and upholding the death sentence imposed in Mississippi on Robert Simon, Jr.
Cummings v. Davis, No. 16 – 6182 (U.S. Jan. 9, 2017), declining to review the decision of the United States Court of Appeals for the Ninth Circuit in federal habeas corpus proceedings and upholding the death sentence imposed in California on Raynard Paul Cummings.
Carter v. Jenkins, No. 16 – 6467 (U.S. Jan. 9, 2017), declining to review the decision of the United States Court of Appeals for the Sixth Circuit in federal habeas corpus proceedings and upholding the death sentence imposed in Ohio on Cedric Carter.
Ryder v. Royal, No. 16 – 5970 (U.S. Nov. 28, 2016), declining to review the decision of the United States Court of Appeals for the Tenth Circuit in federal habeas corpus proceedings upholding the death sentence imposed in Oklahoma on James Chandler Ryder.
Taylor v. Culliver, No. 16 – 5697 (U.S. Nov. 28, 2016), declining to review the decision of the United States Court of Appeals for the Eleventh Circuit in federal habeas corpus proceedings upholding the death sentence imposed in Alabama on Michael Shannon Taylor.
Sallie v. Sellers, No. 16 – 5876 (U.S. Nov. 14, 2016), declining to review the decision of the United States Court of Appeals for the Eleventh Circuit in federal habeas corpus proceedings upholding the death sentence imposed in Georgia on William Sallie.
Landrum v. Jenkins, No. 16 – 5203 (U.S. Oct. 17, 2016), declining to review the decision of the United States Court of Appeals for the Sixth Circuit in federal habeas corpus proceedings upholding the death sentence imposed in Ohio on Lawrence Landrum.
Bible v. Davis, No. 15 – 9544 (U.S. Oct. 11, 2016), declining to review the decision of the United States Court of Appeals for the Fifth Circuit in federal habeas corpus proceedings upholding the death sentence imposed in Texas on Danny Paul Bible.
Jackson v. Royal, No. (U.S. Oct. 11, 2016), declining to review the decision of the United States Court of Appeals for the Tenth Circuit in federal habeas corpus proceedings upholding the death sentenced imposed in Oklahoma on Shelton Jackson.
In its first-Monday-in-October rulings, the Supreme Court denied a number of petitions for certiorari filed by death row prisoners seeking review of their convictions and/or death sentences. These included, in part:
Teleguz v. Zook, No. 15 – 1450 (U.S. Oct. 3, 2016), declining to review the decision of the United States Court of Appeals for the Fourth Circuit in federal habeas corpus proceedings upholding the death sentence imposed in Virginia on Ivan Teleguz.
Gray v. Zook, Nos. 15 – 9473 & 15 – 9474 (U.S. Oct. 3, 2016), declining to review the decision of the United States Court of Appeals for the Fourth Circuit in federal habeas corpus proceedings upholding the death sentence imposed in Virginia on Ricky Gray.
Ramirez v. Davis, No. 15 – 9224 (U.S. Oct. 3, 2016), declining to review the decision of the United States Court of Appeals for the Fifth Circuit in federal habeas corpus proceedings upholding the death sentence imposed in Texas on John Ramirez.
Castillo v. Davis, No. 15 – 9233 (U.S. Oct. 3, 2016), declining to review the decision of the United States Court of Appeals for the Fifth Circuit in federal habeas corpus proceedings upholding the death sentence imposed in Texas on Juan Castillo.
Morris v. Westbrooks, No. 15 – 9002 (U.S. Oct. 3, 2016), declining to review the decision of the United States Court of Appeals for the Sixth Circuit in federal habeas corpus proceedings upholding the death sentence imposed in Tennessee on Farris Genner Morris.
Henderson v. Robinson, No. 15 – 9846 (U.S. Oct. 3, 2016), declining to review the decision of the United States Court of Appeals for the Sixth Circuit in federal habeas corpus proceedings upholding the death sentence imposed in Ohio on Jerome Henderson.
Guarino v. Arizona, No. 15 – 9084 (U.S. Oct. 3, 2016), declining to review the decision of the Arizona Supreme Court upholding the death sentence imposed on Vincent Guarino.
Smith v. Pennsylvania, No. 15 – 9144 (U.S. Oct. 3, 2016), declining to review the decision of the Pennsylvania Supreme Court on direct review of a capital resentencing proceeding, upholding the death sentence imposed on Wayne Smith.
Haney v. Pennsylvania, No. 15 – 9161 (U.S. Oct. 3, 2016), declining to review the decision of the Pennsylvania Supreme Court on direct review upholding the death sentence imposed on Patrick Haney.
Peoples v. California, No. 15 – 9213 (U.S. Oct. 3, 2016), declining to review the decision of the California Supreme Court upholding the death sentence imposed on Louis Peoples.
Lawler v. Chatman, No. 16 – 5243 (U.S. Oct. 3, 2016), declining to review the decision of the United States Court of Appeals for the Eleventh Circuit in federal habeas corpus proceedings upholding the death sentence imposed in Georgia on Gregory Lawler.
