U.S. Supreme Court to Review Two More Cases on Death-Row Prisoners’ Access to Federal Courts

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

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

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

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

Nance v. Ward

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

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

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

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

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

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

Shoop v. Twyford

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

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

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

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

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