United States Supreme Court Decisions: 2017-2018 Term


Opinions of the Court

Cases Pending Decisions

Orders of the Court (including GVRs) and Related Items

Stays of Execution

Petitions of Interest 

Opinions of the Court

THARPE v. SELLERS, No. 17-6075  
Per curiam, cert. granted and decided: January 8, 2018 

In a 6-3 per curiam opinion, the U.S. Supreme Court reversed the Eleventh Circuit Court of Appeals' rejection of Georgia death-row prisoner Keith Tharpe's claim that he was denied a fair trial due to a juror's racial bias and remanded the case for further consideration. Several years after Tharpe's trial, a white juror who had voted to impose death told Tharpe's attorneys—and signed an affidavit saying—that he believed "there are two types of black people: 1. Black folks and 2. N[**]gers," and Tharpe was not in "the 'good' black folks category." This same juror also admitted that he "wondered if black people even have souls." Tharpe presented this affidavit in state court, but his claim was rejected. The federal courts, relying on the state court's decision, also denied his claim.  

In June 2017, Tharpe asked the federal courts to reopen his case to reconsider his juror-bias claim, relying upon two recent decisions from the Supreme Court: (1) Pena-Rodriguez v. Colorado, No. 15-606 (March 6, 2017), a non-capital case in which the court held that a defendant is entitled to present evidence "that racial animus was a significant motivating factor in [a] juror’s vote to convict" to show that he was denied a fair trial; and (2) Buck v. Davis, No. 15-8049 (February 22, 2017), a case in an unusual procedure posture in which the Court granted relief to Texas death-row prisoner Duane Buck, where Buck demonstrated that he "may have been sentenced to death because of his race." The federal district court declined to reopen Tharpe's case and the Eleventh Circuit refused to even issue a certificate of appealability (COA)—a procedural prerequisite to considering an issue on appeal—because it found that "reasonable jurists" would all agree with the state-court decision that found Tharpe was not prejudiced by this particular juror who served on his jury. The Supreme Court, however, disagreed with the the court of appeals' reasoning for denying a COA saying that the "[a]t the very least, jurists of reason could debate whether Tharpe has shown by clear and convincing evidence that the state court’s factual determination [which found no prejudice] was wrong." The Court ultimately left the decision as to whether a COA should issue, and therefore permit review of the merits of the claim, up to the Eleventh Circuit.

Justice Thomas authored a dissent, joined by Justices Alito and Gorsuch, criticizing the Court for interfering in the case and failing to respect the lower courts' judgments. 

Read the Opinion and the Dissent here; read case-related documents at SCOTUSBlog here.

Read more about the case from DPIC:  For Second Time in Two Years, Georgia Prepares to Execute Black Prisoner Whom White Juror Called N-Word and Supreme Court Stays Execution in Georgia Case Raising Issue of Jury Racism

DUNN v. MADISON, No. 17-193
Per curiam, cert. granted and decided: November 6, 2017

In a four-page per curiam opinion, the U.S. Supreme Court reversed the decision of the U.S. Court of Appeals for the Eleventh Circuit that found that Alabama death-row prisoner, Vernon Madison, was incompetent to be executed and that the state court's determination otherwise was unreasonable. As the basis for its decision, the Court noted that there was no clearly established law precluding execution where "a prisoner is incompetent to be executed because of a failure to remember his commission of the crime," which the Court said was "distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in his case," a circumstance which has been clearly established as unconstitutional. The court of appeals had determined that Madision lacked an understanding of the "connection between his crime and his execution" due to his "memory loss, difficulty communicating, and profound disorientation and confusion." In addition to his memory loss, Madison is "legally blind, cannot walk independently, is incontinent and has slurred speech." Madison had suffered two strokes in the past several years that contributing to his failing mental status. In reversing the Eleventh Circuit's decision, the Supreme Court applied the Anti-Terrorism and Effective Death Penalty Act (AEDPA)—which requires deference to state court decisions under most circumstances—and found that "the state court’'s determinations of law and fact were not “so lacking in justification” as to give rise to error “beyond any possibility for fairminded disagreement."

Justice Ginsburg, joined by Justices Breyer and Sotomayor, issued a brief concurrence indicating that the question of whether states "may administer the death penalty to a person whose disability leaves him without memory of his commission of a capital offense" has not been squarely decided by the Court. The Justices agreed, however, that the question could not be reached in the instant case because under AEDPA, the Court must defer to the state court's decision. 

Justice Breyer also filed a separate concurrence citing his dissent in Glossip v. Gross, a 2015 decision in which he called for briefing on the constitutionality of the death penalty and suggested that it was no longer a constitutional penalty. In his concurrence here, Justice Breyer pointed out the problems with the lengthy time between sentence and execution, intimating that the Court will likley have to decide "the ways in which lengthy periods of imprisonment between death sentence and execution can deepen the cruelty of the death penalty while at the same time undermining its penological rationale."

Read the opinion.

Grants of Certiorari—Pending Decisions

WILSON v. SELLERS, No. 16-6855
Cert. granted: February 27, 2017
Argument: October 30, 2017
Decided: Not yet decided

The question presented, as stated in the merits brief filed by Petitioner, Marion Wilson, a prisoner on Georgia death row, is 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 certioriari 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 case-related documents on SCOTUSBlog

AYESTAS v. DAVIS, No. 16-6795
Cert. granted: April 3, 2017
Argument: October 30, 2017
Decided: Not yet decided

The question presented,* as stated in the merits brief filed by Petitioner, Carlos Ayestas, a prisoner on Texas death row, is 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 interpretted “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.  

For additional background on the case, go to DPIC's case page, and read case-related documents on SCOTUSBlog.

McCOY v. LOUISIANA, No. 16-8255
Cert. granted: September 28, 2017 
Argument: January 17, 2018
Decided: Not yet decided 

The question presented,* as stated in the petition for writ of certiorari filed by Petitioner, Robert McCoy, a prisoner on Louisiana death row, is as follows: 

Is it unconstitutional for defense counsel to concede an accused’s guilt over the accused’s express objection? 

(*McCoy presented two questions for review, but the Supreme Court only granted review of the first question.) In August 2011, McCoy was convicted in Bossier Parish, Louisiana, of three counts of first-degree murder and sentenced to death in January 2012. According to the petition, McCoy adamantly maintained his innocence throughout his trial proceedings, and ultimately sought removal of his appointed public defenders because they were "doing nothing to assist him in proving his innocence." McCoy's family borrowed money against their car title and hired an attorney for $5000 to represent McCoy. His attorney informed McCoy two weeks prior to trial that he would have to concede McCoy's guilt in order to save his life. Disagreeing with this strategy, McCoy attempted to have his attorney removed and to represent himself, but the court would not allow him to do so. During trial, counsel repeatedly admitted that McCoy killed the victims, even though McCoy testified in his own defense, asserting his innocence and explaining that a drug-trafficking ring was responsible for the murders. McCoy raised the constitutionality of his lawyer's actions on appeal to the Louisiana Supreme Court. That court held that defense counsel had authority to determine whether to concede guilt, even over the objection of the client.

You can read case-related documents on SCOTUSblog

Orders of the Court and Related Items

Certiorari Granted—Judgment Vacated and Case Remanded

Long v. Davis, No. 16-8909 (U.S. Oct. 2, 2017), cert. granted, judgment vacated, and case remanded to the U.S. Court of Appeals for the Fifth Circuit for further consideration of Steven Long's (pictured) death sentence in light of decision in Moore v. Texas, the case in which the Supreme Court struck down Texas's standard for evaluating intellectual disability in death-penalty cases. In August 2017, Long obtained a stay of execution from the state court of criminal appeals to litigate whether he was ineligible for the death penalty because of his intellectual disability. 


Weathers v. Davis, No. 16-9446 (U.S. Oct. 9, 2017), cert. granted, judgment vacated, and case remanded to the U.S. Court of Appeals for the Fifth Circuit for further consideration of Obie Weathers's (pictured) claim of intellectual disability in light of Moore v. Texas.  



Wright v. Florida, No. 17-5575 (U.S. Oct. 16, 2017), cert. granted, judgment vacated, and case remanded to the Supreme Court of Florida for further consideration of Tavares Wright's (pictured) claim of intellectual disability in light of Moore v. Texas.  



Stays of Execution

Tharpe v. Sellers, No. 17-6075 (17A330​)​​​​​​ (U.S. Sept. 26, 2017) (Justices Thomas, Alito, and Gorsuch dissenting). Three hours after his execution was scheduled to begin, the U.S. Supreme Court stayed the execution of Keith Tharpe (pictured), a Georgia death-row prisoner who sought review of a claim that he had been unconstitutionally sentenced to death because a white juror who "harbored profound racial animus against African Americans" had voted to sentence Tharpe to death because he is black. Over the dissents of Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch, the Court issued a stay of execution on September 26, pending a final ruling on whether to review a decision of the U.S. Court of Appeals for the Eleventh Circuit that had denied Tharpe permission to appeal the issue. The Supreme Court's stay order specifies that the stay "shall terminate automatically" if the Court ultimately decides not to review the issue or if the Court ultimately rules against Tharpe.

Under Supreme Court rules, the votes of four Justices are normally sufficient to grant review of a prisoner's appeal. However, the votes of five Justices are required to stay an execution, which effectively overrides the Court's rules for granting review in circumstances in which a death-row prisoner faces an active death warrant.

For more on the Court's stay order, read Supreme Court Stays Execution in Georgia Case Raising Issue of Jury Racism.

Madison v. DunnNo. 17-7505 (17A770​)​​​​​​ (U.S. Jan. 25, 2018) (Justices Thomas, Alito, and Gorsuch dissenting). After Justice Thomas entered a temporary stay less than one hour before Alabama was scheduled to execute Vernon Madison (pictured), the U.S. Supreme Court later voted 6-3 to stay Madison's execution so that it could consider his pending petition for writ of certiorari. The petition challenges the state court's determination that Madison—whose dementia has left him with no memory of the crime for which he has been sentenced to death—is competent to be executed.  The two questions presented to the Court in Madison's petition are: 

1. Consistent with the Eighth Amendment, and this Court’s decisions in Ford and Panetti, may the State execute a prisoner whose mental disability leaves him without memory of his commission of the capital offense?  

2. Do evolving standards of decency and the Eighth Amendment’s prohibition of cruel and unusual punishment bar the execution of a prisoner whose competency has been compromised by vascular dementia and multiple strokes causing severe cognitive dysfunction and a degenerative medical condition which prevents him from remembering the crime for which he was convicted or understanding the circumstances of his scheduled execution? 

Read the Madison's Petition for Writ of Certiorari; Madison's Stay Motion; State's Brief in Opposition to Certiorari; State's Opposition to Stay Motion; Madison's Reply; Supreme Court Stay Order.

Petitions of Interest 

HIDALGO v. ARIZONA, No. 17-251
Petition filed: August 14, 2017
Cert. Pending

Arizona death-row prisoner Abel Daniel Hidalgo has petitioned the U.S. Supreme Court to review the constitutionality of the state's capital punishment statute under the Eighth Amendment.

Questions Presented: (1) Whether Arizona's capital sentencing scheme, which includes so many aggravating circumstances that virtually every defendant convicted of first-degree murder is eligible for death, violates the Eighth Amendment; and (2) whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.

Read more about the case from DPIC and read the petition, opposition, and reply, as well as the amicus briefs, filed here: SCOTUSBlog.

Review Denied, With Dissent or Statement

TRUEHILL v. FLORIDA, No. 16-9448
Petition filed: June 2, 2017
Cert. Denied: October 16, 2017
Dissent: Sotomayor, Ginsburg, and Breyer

Building upon Hurst v. Florida, a Supreme Court case from 2016 invalidating the state's death-penalty statute, Florida death-row prisoner Quentin Truehill has asked the the Court to further consider the constitutionality of the state's death-sentencing scheme. In his case, the jury was to provide only an "advisory" sentencing recommendation, which then permitted the judge to make the findings necessary for a sentence of death. The Questions presented in his petition are: 

(1) Whether, when a Florida jury recommended a death sentence before the Supreme Court decided Hurst v. Florida and none of the findings required by Hurst were made, the error can be deemed harmless under Chapman v. California, or whether the recommendation simply does not amount to the jury verdict the Sixth Amendment requires; and (2) whether the death-sentencing procedures in this case complied with the Eighth Amendment, when the jury was repeatedly advised by the court that its advisory sentencing recommendation was non-binding.

On October 16, the Court denied review in this case over the dissent of three Justices. Justice Breyer dissented for the reasons set for in his opinion in Hurst, which reiterated that juries—not judges—should be the final decision-maker regarding whether to sentence someone to death. Justice Sotomayor, joined by justices Ginsburg and Breyer, dissented because the Florida Supreme Court has failed to address the constitutionality of prior sentencing procedures in light of the Court's decision in Hurst. Specifically, in Florida death-penalty cases, juries were instructed that their "verdict was merely advisory," an instruction that could be inconsistent with the Court's decision in Hurst which struck down the prior law that allowed judges to find facts necessary to impose a death sentence. In Justice Sotomayor's opinion, the Court should have granted review of the case "[b]ecause petitioners here raised a potentially meritorious Eighth Amendment challenge to their death sentences, and because the stakes in capital cases are too high to ignore such constitutional challenges." 

Read the pleadings at SCOTUSBlog

FLOYD v. ALABAMA, No. 16-9282
Petition filed: May 22, 2017
Cert. Denied: December 4, 2017
Statement by Sotomayor, joined by Breyer

Christopher Floyd was sentenced to death by a judge in Houston County, Alabama, after a non-unanimous jury recommended (11-1) death. The prosecutor kept track of race and struck 10 of 11 potential black jurors from his jury. In 2016, the U.S. Supreme Court granted review in Floyd's case, vacated the decision, and remanded the case to the state supreme court for reconsideration in light of Foster v. Chatman, a 2016 Supreme Court decision from Georgia involving similar facts, including a prosecutor who marked a "B" next to black potential jurors. On remand, the Alabama Supreme Court affirmed Floyd's conviction and sentence, finding that it "simply cannot conclude, even though the record does contain a list used by the prosecutor indicating the race of each potential juror, that the record in this case evidences a 'concerted effort to keep black prospective jurors off the jury.'" 

In denying review, Justice Sotomayor joined by Justice Breyer wrote a statement explaining: "Although the unique context of Floyd’s case counsels against review by this Court, I find the underlying facts sufficiently troubling to note that in the ordinary course, facts like these likely would warrant a court’s intervention." While Justice Sotomayor recognized that the procedural posture in the case made it difficult for that Court to review, she nonetheless implored lower courts to "be steadfast in identifying, investigating, and correcting for improper bias in the jury selection process." 

Read the pleadings at SCOTUSBlog