Yarborough v. Gentry
540 U.S. ___, 124 S.Ct. 1 (2003) (per curiam)

In this assault with a deadly weapon case from California, the Supreme Court summarily reversed the Ninth Circuit's grant of habeas relief on a claim of ineffective assistance of counsel. The Ninth Circuit had found defense counsel's closing argument to be constitutionally deficient and prejudicial to Gentry. Further, the Ninth Circuit held that the state court's finding to the contrary was objectively unreasonable. The Supreme Court ruled that this latter holding was in error.

It was undisputed that Gentry stabbed his girlfriend. The defense, which was supported by Gentry's own testimony, was that the stabbing occurred accidently during a confrontation with a drug dealer.

The Supreme Court began by acknowledging that "[t]he right to effective assistance extends to closing arguments." It then noted, however, that judicial review of a defense attorney's summation is "highly deferential - and doubly deferential when it is conducted through the lens of federal habeas."

Looking to the state court decision denying relief, the Court observed that the state court had cited state case law that set forth the correct federal standard for assessing claims of ineffective assistance of counsel, and then concluded that counsel's performance was not ineffective. In the view of the Supreme Court, this determination was supported by the record.

Notably, the argument by counsel did make several key points about the case against Gentry. The Ninth Circuit's disagreement with the state court's holding was premised largely on the fact that defense failed to highlight other potentially exculpatory pieces of evidence. The existence of additional arguments that counsel could have included did not, according to the Supreme Court, render the state court's decision unreasonable.

First, some of the evidence the Ninth Circuit believed should have been discussed by counsel was ambiguous. And mentioning other items could have backfired by inviting strong rebuttal. But even if some of the arguments at issue would unquestionably have supported Gentry's defense, "it does not follow that counsel was incompetent for failing to include them." To support this point, the Supreme Court quoted from treatises on oral advocacy, which demonstrate that "judicious selection of arguments for summation is a core exercise of defense counsel's discretion."

Citing to Strickland v. Washington, the Supreme Court also pointed out that "[w]hen counsel focuses on some issues to the exclusion of others, there is a strong presumption that he did so for tactical reasons rather than through sheer neglect." This presumption has "particular force" in a case such as this one where the defendant based his claim of ineffective assistance solely on the trial record. Where there is only the trial record to go from, the reviewing court has no way of knowing whether an act or omission that appears unusual or even misguided was in fact the product of a sound strategic decision. Further, even if counsel makes an inadvertent omission, "relief is not automatic" given that the Sixth Amendment guarantees only "reasonable competence" rather than "perfect advocacy."

On the record before it, the Supreme Court concluded that a state court could reasonably find that Gentry had failed to rebut the presumption of adequate assistance. This is because "[c]ounsel plainly put to the jury the centerpiece of his case," and "[t]he issues counsel omitted were not so clearly more persuasive than those he discussed that their omission can only be attributed to a professional error of constitutional magnitude."

The Ninth Circuit had also criticized counsel for mentioning irrelevant details that harmed his client's position. But the Supreme Court pointed out that the very purpose of mentioning them was to remind the jury that they were legally irrelevant. Again looking to a treatise on advocacy, the Supreme Court found that counsel's tactic was not unreasonable. Counsel's characterization of his client as a "bad person, lousy drug addict, stinking thief, jail bird," was viewed by the Supreme Court as a "calculated risk that lies at the heart of an advocate's discretion." By conceding that Gentry had shortcomings, counsel might have gained credibility with the jury and persuaded it to focus on the issues germane to Gentry's defense.

Another failing of counsel, according to the Ninth Circuit, was the absence of an express demand for acquittal. Instead, counsel made a passive request that the jury reach a verdict. Looking yet to another treatise, the Supreme Court observed that an approach focusing on the jury's autonomy was recommended for cases like this one where the prosecutor gave a "patronizing and overconfident summation."

As for the Ninth Circuit's complaint that counsel did not explicitly argue that the prosecution had failed to meet its burden of proving guilt beyond a reasonable doubt, the Supreme Court interpreted counsel's argument as making "just that point," by repeatedly emphasizing that neither the prosecutor, the jury, nor defense counsel could know for sure who was telling the truth. "This is the very essence of a reasonable doubt argument." And while counsel did not insist that the existence of reasonable doubt required a verdict of not guilty, "he could count on the judge's charge to remind [the jurors] of that requirement, and by doing so he would preserve his strategy of appearing as the friend of jury autonomy."

Finally, the Ninth Circuit was concerned that counsel's statement that he too did not know what actually had happened implied that he did not believe his own client's testimony. The Supreme Court responded by finding no flaw in a rhetorical device "that personalized the doubts anyone but an eyewitness must necessarily have." Indeed, "[w]inning over an audience by empathy is a technique that dates back to Aristotle."

The Supreme Court concluded:

To be sure, Gentry's lawyer was no Aristotle, or even Clarence Darrow. But the Ninth Circuit's conclusion – not only that his performance was deficient, but that any disagreement with that conclusion would be objectively unreasonable – gives too little deference to the state courts that have primary responsibility for supervising defense counsel in state criminal trials.

 

Mitchell v. Esparza
540 U.S. ___, 124 S.Ct. 7 (2003) (per curiam).

The Supreme Court granted the state's petition for writ of certiorari and reversed the Sixth Circuit's judgment affirming the grant of habeas relief to Ohio death row inmate Esparza.

Esparza had contended that the state violated the Eighth Amendment mandate to "narrow the class of death eligible defendants" by sentencing him to death following a conviction on an indictment which failed to charge him as a "principal offender" as required by state capital sentencing law. The state courts implicitly found this error harmless in light of the absence of any evidence that anyone other than Esparza took part in the robbery and homicide. The district court and Sixth Circuit disagreed, "holding that the Eighth Amendment precluded respondent's death sentence and that harmless-error review was inappropriate." The Supreme Court finds that in Sixth Circuit's decision "ignore[d] the limits imposed on federal habeas review by 28 U.S.C. § 2254(d)."

In finding an Eighth Amendment violation, the Sixth Circuit reasoned that "Ohio's failure to charge in the indictment that respondent was a 'principal' was the functional equivalent of 'dispensing with the reasonable doubt requirement,'" and therefore not subject to harmless error analysis. The Supreme Court rejected this conclusion, explaining that it has "often held" in non-capital cases "that the trial court's failure to instruct a jury on all of the statutory elements of an offense is subject to harmless-error analysis." In support of this assertion, the Supreme Court cited numerous cases, some of which, like Neder v. United States, 527 U.S. 1 (1999), post-dated the relevant state court decisions denying Esparza relief. The Court was then unable to "say that because the violation occurred in the context of a capital sentencing proceeding that [its] precedent require[d] the opposite result." Underscoring the point that its decisions do not support the Sixth Circuit's refusal to apply harmless error analysis in these circumstances, the Court further noted that "we left a question similar to the one presented here open in another capital case, Ring v. Arizona, 536 U.S. 584, 609, n. 7 (2002)." The Court went on to conclude that,

[i]n relying on the absence of precedent to distinguish our noncapital cases, and to hold that harmless-error review is not available for this type of Eighth Amendment claim, the Sixth Circuit exceeded its authority under § 2254(d)(1). A federal court may not overrule a state court for simply holding a view different from its own, when the precedent from this Court is, at best, ambiguous. As the Ohio Court of Appeals' decision does not conflict with the reasoning or the holdings of our precedent, it is not 'contrary to ... clearly established Federal law.'

Finally, turning to the remaining question whether the state court's decision involved an unreasonable application of clearly established federal law, the Court did not mention Brecht v. Abrahamson, but looked instead to the state court's application of Chapman v. California:

We may not grant respondent's habeas petition . . . if the state court simply erred in concluding that the State's errors were harmless; rather, habeas relief is appropriate only if the Ohio Court of Appeals applied harmless-error review in an "objectively unreasonable" manner. Lockyer v. Andrade, 538 U.S. 63, 75-77 (2003); see also Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam); [(additional citations omitted)].

After briefly reviewing the jury instructions and noting that, "[a]fter all, [respondent] was the only defendant charged in the indictment," the Court concluded that, "[u]nder these circumstances, we cannot say that the state court's conclusion that respondent was convicted of a capital offense [requiring a finding of "principal offender" status] was objectively unreasonable. That being the case, we may not set aside its decision on habeas review." The Court observed in a footnote that evidence had come to light in District Court indicating that another person may in fact have been involved in the robbery-murder. Because such evidence had not been presented to the jury, it had no bearing on the correctness of the state court decision finding harmless error.

The Court reversed the Sixth Circuit's judgment and remanded for further proceedings.

 

Banks v. Dretke
540 U.S. ___, 2004 WL 330040 (Feb. 24, 2004) .

In an opinion authored by Justice Ginsburg, the Supreme Court finds that Texas death row inmate Delma Banks is entitled to sentencing phase relief based on a Brady violation. Justice Thomas, joined by Justice Scalia, dissents from this holding. The Court is unanimous, however, in concluding that the Fifth Circuit erred in denying a certificate of appealability (COA) on a second alleged Brady violation. The case is remanded for further proceedings on that claim. Although the grant of certiorari included a question related to Banks’s claim of ineffective assistance of counsel at the sentencing phase, the Court does not address that claim in light of its determination that a Brady violation requires vacation of the death sentence.

The Crime and the Trial

On April 14, 1980, the body of Richard Whitehead was found. He had been shot three times. Two witnesses informed the police that Whitehead had been in the company of petitioner, Delma Banks, a few evenings before Whitehead’s body was discovered. A week or so later, a confidential informant told police that Banks was planning a trip to Dallas in order to get a weapon. Banks was followed by the police to a residence in Dallas. His vehicle was stopped as he was making his return from Dallas and a handgun was recovered. When the police went to the residence that Banks had visited, they encountered Charles Cook. Cook provided the police with a gun that Banks had allegedly left with Cook several days earlier. This second gun was later identified as the murder weapon.

At a pretrial hearing, defense counsel unsuccessfully sought information about the confidential informant. Several weeks later the prosecutor informed defense counsel that litigation over discovery would be unnecessary. The prosecutor promised to provide the defense with everything to which it was entitled without any request.

At trial, witnesses testified to seeing Banks with Whitehead in the victim’s green Mustang on April 11^th, and to hearing gunshots in the park in the early hours of April 12^th. Cook testified that Banks arrived at his Dallas residence that same morning driving a green Mustang. Banks had blood on his leg and eventually confessed to having killed a "white boy" for the hell of it, and taking the victim’s car. A few days later Banks left Dallas by bus, leaving behind the Mustang and a gun. Cook abandoned the Mustang, and sold the gun to a neighbor. According to Cook, Banks requested the gun when he returned to Dallas.

Three times while on the stand Cook represented that he had not spoken to anyone about his testimony. During closing argument, the prosecutor asserted that "Cook brought you absolute truth."

Partially corroborating Cook’s testimony was Robert Farr. He told the jury that he had accompanied Banks to Dallas in order to retrieve the gun. Farr denied every receiving anything from the police and claimed that he had not spoken to anyone about the case until a few days before trial.

The defense presented no evidence and Banks was convicted of capital murder. The penalty phase of the trial was conducted under prior Texas law, which provided that a sentence of death would be imposed if the jury answered three special issues affirmatively. The key question centered around whether Banks, who had no prior criminal history, would pose a danger in the future. To establish that he would, the prosecution presented two witnesses. The first testified that Banks had struck him across the face with a gun and threatened to kill him. The second witness was Farr. He gave further details about the Dallas trip, contending that the gun was sought in order to pull some robberies. According to Farr, Banks said he would "take care of it" if trouble came up during commission of future crimes. During cross-examination, Farr denied having told the investigating officer, Huff, about the Dallas trip. He also denied having previously attempted to obtain prescription drugs by fraud. Although defense counsel was able to present two witnesses to impeach Farr regarding the drug charge and his prior unreliable service as an informant, both witnesses were themselves impeached.

Following good character testimony, Banks himself took the stand. He admitted traveling with Farr to Dallas in order to obtain a gun. He claimed, however, that it was Farr who had wanted a weapon in order to commit robberies alone.

In arguing future dangerousness, the prosecution emphasized Farr’s testimony about Banks’s willingness to "take care of it." He also urged that Farr’s admission that he used narcotics established that he was being truthful in the rest of his testimony. The jury agreed that Banks posed a future danger and Banks was sentenced to death.

State Post-Conviction Proceedings

Following affirmance of the convictions and death sentence, and two unsuccessful postconviction motions, Banks filed a third state postconviction motion. In it he alleged on information and belief that the prosecution violated Brady v. Maryland by withholding evidence that Farr was a police informant and that Banks’s arrest was a set up. He also alleged that evidence of a generous deal received by Cook had been withheld.

The State responded by asserting that nothing had been withheld from the defense. Although the State expressly denied any deal with Cook, it said nothing specifically about Farr. The state court found that no deal had been made with Cook. It made no finding about Farr, but simply rejected the claims.

District Court Proceedings

Shortly before the Antiterrorism and Effective Death Penalty Act (AEDPA) was enacted, Banks filed a federal habeas petition. Thus, this case is not governed by amended § 2254(d). In the petition Banks repeated his allegations about Farr, and asserted that the prosecution concealed evidence of Cook’s "enormous incentive" to testify in a manner favorable to the prosecution. The magistrate judge allowed Banks discovery concerning Cook, but concluded there was insufficient justification for discovery related to Farr.

Some months later, Banks renewed his request for discovery, as well as for an evidentiary hearing. This request was supported by affidavits from both Farr and Cook. In Farr’s affidavit, he confirmed that he had set Banks up by proposing the trip to Dallas, and by tipping off investigating officer Huff. Establishing his prior unavailability, Farr explained that he had left Texas sometime after Banks’s trial because his police informant work had endangered his life. Cook stated in his affidavit that he had been through three or four practice sessions with police prior to trial and had been told by the prosecutors to testify as they wanted or else Cook would spend the rest of his life in prison.

The Magistrate Judge determined that Banks was entitled to an evidentiary hearing on his Brady claims, and ordered further discovery. Disclosed to Banks for the first time was a 74-page transcript of an interrogation of Cook that took place shortly before trial. In it, the prosecutors rehearsed Cook’s testimony with him and showed him how to reconcile his testimony with his earlier statements. Although the transcript did not establish that Cook had received a deal, as had been alleged by Banks, it showed that his trial testimony regarding the absence of pre-trial preparation was false. The transcript was admitted into evidence without objection. At the hearing, investigating officer Huff acknowledged for the first time that Farr was a paid informant who had received $200 for his work on Banks’s case.

Banks was ultimately granted sentencing relief in light of the State’s failure to disclose Farr’s informant status, and ineffective assistance of counsel. The Brady claim related to Cook was denied because Banks failed to show that there had been a deal. Regarding the suppressed rehearsal transcript, the district court concluded it was not properly before the court given Banks’s failure to amend or supplement his petition to include allegations about the transcript after it was discovered. The district court rejected Banks’s contention that the Brady claim based on the transcript had been aired by implied consent under Federal Rule of Civil Procedure 15(b), which provides: "When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time … ." . The district court also denied a COA on this contention.

The Fifth Circuit

In an unpublished opinion, the Fifth Circuit reversed the grant of sentencing phase relief on the Farr Brady claim, and denied a COA on the Cook-related claim. In the view of the Fifth Circuit, Banks had not been entitled to an evidentiary hearing on his Farr Brady claim because he was guilty of having failed to develop the facts in state court proceedings. The Fifth Circuit opined that Banks should have attempted to locate and interview Farr, Huff and other officers who investigated the Whitehead killing. If those efforts proved unavailing, Banks could have sought assistance from the state court.

The Fifth Circuit also found that Farr’s informant status was not "material," given that the defense had brought out that he was an unreliable informant in another state, and his testimony was largely corroborated. In addition, the district court had mistakenly relied on the cumulative effect of the Farr Brady violation and trial counsel’s ineffectiveness even though Banks had not himself urged this position. Apparently viewing Federal Rule of Civil Procedure 15(b) inapplicable in federal habeas proceedings, a COA was again denied on the Cook Brady claim.

Discussion

The Supreme Court began by addressing the claim related to Farr. Looking to what was alleged in the third state postconviction petition, the Court found that a Brady claim was legally exhausted. In a footnote, it observed that the parties disputed whether Banks had properly raised and exhausted a claim under Napue v. Illinois and Giglio v. United States that the prosecution had failed to correct false testimony. Because the Court concluded that Banks was entitled to relief on the Farr Brady claim, it left unresolved whether a Giglio claim must be pleaded separately from a Brady claim.

As for factual exhaustion, the Court acknowledged that Banks had failed to present the state court with evidence substantiating his claim that Farr had served as a police informant in the case. Thus, in order to be permitted to present such evidence in federal court, Banks was required to show "cause" for his failure to develop the factual basis of the claim in state court, and that he was prejudiced. Looking to Strickler v. Greene, 527 U.S. 263 (1999), the Court explained that the cause and prejudice analysis overlapped largely with consideration of the Brady claim. The cause requirement could be satisfied by establishing the second element of Brady – suppression by the State. And if Banks met the third Brady element – materiality – prejudice would be established.

As for the first prong of Brady, it was unquestionable that Farr’s informant status was "favorable." Turning to suppression, or "cause," the Court found the case controlled by Strickler. As in Strickler, the prosecution failed to reveal favorable information, i.e., Farr’s relationship with Huff. Also like in Strickler, the prosecution affirmatively (and falsely) asserted that all Brady material was being provided. Banks, therefore, could not be faulted for relying on that representation. Finally, in the third state postconviction petition Banks alleged that Farr was a police informant, despite the absence of supporting evidence. The State responded by denying the allegation, again confirming its prior (false) representation that all relevant information had been disclosed. The Court concluded that "because the State persisted in hiding Farr’s informant status and misleadingly represented that it had complied in full with its Brady disclosure obligations, Banks had cause for failing to investigate, in state postconviction proceedings, Farr’s connections to Deputy Sheriff Huff."

The Court further noted that Banks presented an even stronger case for "cause" than in Strickler given that in this case Farr affirmatively lied during trial about his dealings with the police and the prosecution allowed his false testimony to stand uncorrected. The Court observed, "[i]f it was reasonable for Banks to rely on the prosecution’s full disclosure representation, it was also appropriate for Banks to assume that his prosecutors would not stoop to improper litigation conduct to advance prospects for gaining a conviction."

The Court strenuously rejected the argument by respondent that Banks should have more aggressively investigated his suspicions about Farr while in state court, characterizing the rule requested by respondent as "prosecutor may hide, defendant must seek." Similarly unpersuasive to the Court was the Fifth Circuit’s conclusion that Banks showed a lack of diligence by failing to seek state assistance in investigating Farr’s role in the case. Given that all Banks had at the time of his third state postconviction proceeding was an affidavit from a witness stating that Farr was "well-connected" to law enforcement, "Banks had little to proffer in support of a request for assistance from the state postconviction court." The Court refused to assign "overriding significance to Banks’s failure to invoke state-court assistance to which he had no clear entitlement." Lastly, the Court disposed of respondent’s contention that Roviaro v. United States, 353 U.S. 53 (1957), placed the burden on Banks to move for disclosure of privileged information concerning a confidential informant. The Court stated: "Nothing in Roviaro, or any other decision of this Court, suggests that the State can examine an informant at trial, withholding acknowledgment of his informant status in the hope the defendant will not catch on, so will make no disclosure motion."

Turning to materiality, the Court looked to the importance of Farr’s testimony in establishing Banks’s future dangerousness. Importantly, the prosecution had placed heavy reliance on the uncorroborated portions of Farr’s testimony in arguing for a death sentence. And while there was some impeachment by defense counsel at trial, it was largely ineffective. Looking to what the jury did not know about Farr and his role in the case, as well as the fact that Banks was without any criminal record, the Court easily concluded that materiality was established as to the sentencing phase. Thus, all three elements of the Brady test were satisfied. In reaching this conclusion, the Court also observed in a footnote that the remaining prosecution witness at the sentencing phase had provided additional details about his encounter with Banks during the federal habeas proceedings. The witness explained that he had actually initiated the incident by making disrespectful comments towards Banks’s girlfriend, and that he was the one who became angry at Banks’s response, leading to the fight during which he was struck by Banks.

The Court next addressed the Cook Brady claim, the claim on which Banks had been unable to even obtain a COA from the district court or court of appeals. At oral argument, respondent had conceded that it was "debatable among jurists of reason" whether, as asserted by Banks, Federal Rule of Civil Procedure 15(b) applied in habeas proceedings. In the unanimous view of the Court, Banks was entitled to a COA on this issue. In reaching this conclusion, it observed that it had in two earlier cases assumed the applicability of Rule 15(b) to federal habeas petitions. See Harris v. Nelson, 394 U.S. 286, 294 n.5 (1969) and Withrow v. Williams, 507 U.S. 680, 696 and n. 7 (1993). In Withrow the Court found that the claim at issue had never been presented, either through pleadings, an evidentiary hearing, or even argument. Thus, there was no trial by implied consent. Here, in contrast, the claim was aired at the evidentiary hearing and the transcript itself was admitted into evidence without objection. Although the Fifth Circuit found no authority for equating an evidentiary hearing with a trial, the Court saw reason "why an evidentiary hearing should not qualify so long as the respondent gave ‘any sort of consent’ and had a full and fair ‘opportunity to present evidence bearing on th[e] claim’s resolution." Id. at 696.

The Court was also unpersuaded by the Fifth Circuit’s belief that application of Rule 15(b) to pre-AEDPA habeas proceedings would undermine the State’s exhaustion and procedural default defenses. The Court pointed out that both exhaustion and procedural default could be waived pre-AEDPA by the State’s conduct. In making this observation, it noted that it was taking no position on the applicability of Rule 15(b) under the AEDPA regime, where waive of exhaustion must be express. Because jurists of reason clearly could disagree with the district court’s finding that Rule 15(b) was inapplicable to habeas proceedings, a COA should have issued.

The case is remanded to the Fifth Circuit for further proceedings.

Justice Thomas, joined by Justice Scalia, joined the portion of the opinion related to the Rule 15(b) question, but otherwise dissented. While he conceded that the Farr Brady claim presented a "very close question," he ultimately was unable to conclude that the State’s failure to disclose Farr’s informant status was prejudicial. In a footnote, he stated that he would not address the possible application of the standard from Giglio given his agreement with the Fifth Circuit that the issue was not properly raised below, and went beyond the questions on which certiorari was granted.

As for the Farr Brady claim, Thomas did not believe that the revelation that Huff had requested Farr’s assistance in retrieving the gun, and that Farr had received $200 for this assistance, created a reasonable probability that the jury would have altered its conclusion regarding Banks’s future dangerousness. In reaching this conclusion, Thomas looked first to the facts of the "horrible crime," where Banks, "apparently on a whim, executed Whitehead simply to get his car." Further, the jury heard from Banks himself that he was willing to assist a man obtain a gun with full knowledge that the weapon would be used in future armed robberies. And then there was the pistol whipping of the other prosecution witness, which occurred only one week before the capital offense. While new evidence showed that the man accepted responsibility for starting the fight, even assuming it was appropriate to mix and match prejudice from the Brady and ineffective assistance of counsel claims, Banks’s reaction was vastly disproportionate to the witness’s actions. On this record, Thomas could not find that Banks’s was prejudiced by the State’s failure to disclose Farr’s true status.

Because of this conclusion, Thomas did not resolve the question of "cause." He nevertheless questioned whether cause was shown in this case. He pointed out that in state postconviction proceedings, the State denied the allegation that the prosecution "knowingly" withheld material to which Banks was entitled under Brady. Thomas then observed that there was little evidence showing that the prosecutor had actual knowledge of Huff’s payment to Farr. Thus, the State may merely have been denying the "knowing" aspect of the allegation. Or, in the alternative, the State may have been denying that the withheld information fell under Brady because, in its view, it was not material. In either case, this put the case outside of what occurred in Strickler, and Thomas thus found the majority’s reliance on Strickler to be "less than compelling."

Finally, Thomas turned to the ineffective assistance of counsel claim that the majority found unnecessary to consider. In his view, Banks came no where close to satisfying Strickland v. Washington’s prejudice prong.

 

Baldwin v. Reese
541 U.S. ___, 2004 WL 372501 (March 2, 2004) .

In a 8-1 decision authored by Justice Breyer, the Supreme Court ruled that "a state prisoner does not ‘fairly present’ a claim to a state court if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so." Reese’s alternative argument – that his claim was exhausted because the state law standard was identical to the federal standard – was not considered because it had been raised for the first time in Reese’s brief on the merits. Justice Stevens dissented, contending that the alternative argument should be considered and that it provided a basis for upholding the Ninth Circuit’s ruling that the claim at issue was legally exhausted.

Under 28 U.S.C. § 2254(b)(1), a state prisoner is required to first present his federal constitutional claim to the state court in order to give the state the opportunity to correct violations of federal rights. At issue here was whether a constitutional claim was "fairly presented" to the Oregon Supreme Court.

After Michael Reese’s convictions for kidnapping and sodomy were affirmed by the state court, Reese initiated collateral relief proceedings. Following denial by the lower courts, Reese petitioned the state supreme court for discretionary review. Several legal claims were raised, including the allegation that Reese had received "ineffective assistance of both trial court and appellate court counsel." The petition added that Reese’s imprisonment violated Oregon law. Reese further specified that trial counsel’s conduct violated several provisions of the Federal Constitution. The Oregon Supreme Court denied review.

Reese then filed a federal habeas petition. Among his claims was that appellate counsel was ineffective in violation of Reese’s federal constitutional rights. The district court ruled that Reese had failed to "fairly present" the claim to the state supreme court because he had not indicated that he was complaining about a federal law violation. On appeal, a divided panel of the Ninth Circuit concluded that the claim had been properly exhausted. While the state petition on its face may not have mentioned the federal basis for the claim, the appeals court noted that the state supreme court had the opportunity to read the lower court’s opinion which was being challenged by the petition for review. Had the state supreme court done so, it would have been alerted to the federal nature of the claim.

The Supreme Court rejected the notion that providing the state supreme court with the opportunity to discover the true nature of a claim through review of the lower court’s opinion satisfies the exhaustion requirement. It reasoned that the Ninth Circuit’s approach would require appellate courts to read the lower court decisions in order to avoid forfeiting the right to first decide a federal law claim. This would force state appellate courts to alter their practices, because in many instances a discretionary petition can be disposed of without review of the lower court’s decision. This in turn would impose a serious burden on appellate courts already under heavy workloads. The Court was unable to find the Ninth Circuit’s approach necessary in order to avoid imposing unreasonable procedural burdens on state prisoners. It explained:

A litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state court petition or brief, for example, by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim "federal."

The Court therefore reversed the Ninth Circuit’s ruling that the ineffective assistance of appellate counsel claim had been "fairly presented" to the Oregon Supreme Court.

Reese argued in the alternative that it was wrong to assume that the state supreme court had not been fairly alerted to the federal nature of the claim through the petition for review. This was because "ineffective" assistance of counsel is a term of art in Oregon that refers only to federal law claims. In contrast, state law claims are referred to as "inadequate" assistance of counsel. The Oregon Supreme Court should have known by use of the word "ineffective" that a federal constitutional claim was being raised.

The Court was not convinced that Oregon law uses the term "ineffective" in the manner asserted by Reese. The Court pointed to a case decided under the Oregon Constitution that described the claim at issue as "ineffective" assistance of counsel. Further, Reese’s petition used both "inadequate" and "ineffective" at different points to refer to what was apparently the same claim.

Reese also contended that the standards for adjudicating state and federal "inadequate/ineffective assistance of appellate counsel" claims are identical in Oregon. Thus, according to Reese, he was not required to specifically alert the state court to the federal nature of the claim since by raising a state law claim he would necessarily be "fairly presenting" the corresponding federal claim.

The Court refused to address this last argument because it was never raised in the Ninth Circuit, and it first appeared in Reese’s brief on the merits. Under the Supreme Court’s Rule 15.2, "a nonjurisdictional argument not raised in a respondent’s brief in opposition to a petition for writ of certiorari may be deemed waived." Caterpillar Inc. v. Lewis, 519 U.S. 61, 75, n. 13 (1996) (internal quotation marks omitted). The Court exercised its discretion under Rule 15.2 to find the argument waived, noting that the argument was complex "and its broad implications suggest[ed] that its consideration by the lower courts would help in its resolution."

Justice Stevens dissented, finding it appropriate to disregard Rule 15.2 in this case. He found that Reese had satisfactorily demonstrated the absence of a significance difference between ineffective assistance of appellate counsel claims predicated on the Oregon Constitution and those based on federal law. The Oregon Supreme Court therefore was fairly presented with the federal claim.

 

Middleton v. McNeil
541 U.S. ___, 124 S.Ct. 1830 (2004) (per curiam).

In this second degree murder case from California, the Supreme Court summarily reversed the Ninth Circuit’s grant of habeas relief. Not reaching the merits of the claim at issue, the Supreme Court instead ruled that the state court did not unreasonably apply federal law when it concluded there was no reasonable likelihood that an error in the jury instructions would have led the jury to misunderstand the elements of imperfect self-defense. Thus, habeas relief was precluded by 28 U.S.C. § 2254(d).

Sally McNeil was charged with murdering her husband. Her defense was that she killed her husband out of fear for her own life. Under state law, a killing is reduced from murder to voluntary manslaughter where the act occurred from an unreasonable, but genuine, fear of imminent peril.

McNeil’s jury was correctly informed that the "specific intent for voluntary manslaughter," as opposed to murder, arose under the circumstance where a defendant harbored an unreasonable belief "in the necessity to defend [herself] against imminent peril to her life or great bodily injury." Further, the jury was told that the burden was on the prosecution to establish beyond a reasonable doubt that the act which caused the victim’s death "was not done . . . in the honest, even though unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury." The instructions further accurately stated that a person killing someone under such circumstances did not commit murder, and this was true even if a reasonable person in the same situation would not have held the same belief about the danger posed. Where the instructions went astray was in the definition of "imminent peril," which stated: "An ‘imminent’ peril is one that is apparent, present, immediate and must be instantly dealt with, or must so appear at the time to the slayer as a reasonable person." (Emphasis added.) The last four words were apparently added in error.

Following McNeil’s conviction for second degree murder, she appealed. The California Court of Appeal acknowledged that error had occurred, but nevertheless upheld McNeil’s conviction. The state appellate court found that when the instructions were considered in their entirety it was not reasonably likely that the jury would have misunderstood the requirements for imperfect self-defense. The court further noted that the prosecution in its argument correctly set forth the appropriate standard.

After McNeil unsuccessfully sought habeas relief in the federal district court, the Ninth Circuit Court of Appeals reversed. The court of appeals reasoned that the erroneous imminent peril instruction effectively eliminated McNeil’s imperfect self-defense claim. In its view, the state appellate court unreasonably applied federal law by "completely ignor[ing] unchallenged and uncorrected instructions to the jury." 344 F.3d at 999. While acknowledging the need to consider the jury charge as a whole, the Ninth Circuit concluded the other instructions were irrelevant in this case because the only time imminent peril was defined was in the erroneous instruction on imperfect self-defense.

The Supreme Court found that this conclusion by the Ninth Circuit "failed to give appropriate deference to the state court’s decision." The Ninth Circuit was wrong in describing the state court as having ignored the faulty instruction. Rather, the state court had found that the erroneous instruction was not reasonably likely to have misled the jury in light of the multiple other instances where the jury was correctly informed that for purposes of voluntary manslaughter McNeil’s belief about the situation could have been unreasonable. The Supreme Court concluded: "Given three correct instructions and one contrary one, the state court did not unreasonably apply federal law when it found that there was no reasonable likelihood the jury was misled."

The Ninth Circuit was mistaken in its belief that the multiple correct references to unreasonableness were "irrelevant" because they were not included in the imminent peril definition. The Supreme Court explained, "whether one defines imminent peril in terms of an unreasonable belief or instead defines imperfect self-defense as allowing an unreasonable belief in imminent peril, the import of the instruction is the same."

Attempting to reconstruct the Ninth Circuit’s rationale for its decision, the Supreme Court found it possible that the Ninth Circuit had reasoned that the erroneous instruction caused the jurors to interpret the correct instructions as permitting an unreasonable belief in the necessity to defend, but not an unreasonable belief in the actual existence of the imminent peril. The Supreme Court responded to that possibility as follows: "This interpretation would require such a rare combination of extremely refined lawyerly parsing of an instruction, and extremely gullible acceptance of a result that makes no conceivable sense, that the state court’s implicit rejection of the possibility was surely not an unreasonable application of federal law."

As for the Ninth Circuit’s finding that the state court erred in relying on the prosecution’s argument, the Supreme Court pointed out that this was not a case where the instructions clearly said one thing and the prosecutor argued another. Rather, the instructions here were simply ambiguous at worst because they were internally inconsistent. Although instructions from a judge are presumed to have more influence than arguments of counsel (Boyde v. California, 494 U.S. 370, 384 (1990)), "[n]othing in Boyde precludes a state court from assuming that counsel’s argument clarified an ambiguous jury charge." Indeed, "[t]his assumption is particularly apt when it is the prosecutor’s arguments that resolves an ambiguity in favor of the defendant."

 

 

Dretke v. Haley
541 U.S. ___, 124 S.Ct. 1847 (2004).

In this non-capital case from Texas, the Supreme Court vacated the judgment and remanded to the district court to consider alternative grounds for relief urged by respondent Haley that could obviate the need for the Supreme Court to reach the question that certiorari was granted on – whether the actual innocence exception to the procedural default doctrine applies to noncapital sentencing error. The Court (O’Connor, Rehnquist, Scalia, Thomas, Ginsburg, and Breyer) held that where a habeas petitioner alleges actual innocence, whether of the crime charged or of the sentence received, in order to overcome a procedural bar, the federal court must first address all nondefaulted claims for comparable relief and other grounds for excusing the procedural default. Stevens filed a dissenting opinion, which was joined by Kennedy and Souter. Kennedy also filed a separate dissenting opinion.

Respondent Michael Wayne Haley was arrested in 1997 for stealing a calculator from a Wal-Mart and attempting to exchange it for other merchandise. He was convicted of theft of property valued less than $1,500. Because he already had two prior theft convictions, Haley’s conviction was punishable by a maximum of two years in prison. Haley was further charged as a habitual offender. The indictment alleged that the first of his two prior felony convictions (a 1991 conviction for delivery of amphetamine) had become final before the commission of his second felony conviction (a 1992 robbery). The timing of the convictions and offenses was critical because the Texas habitual offender statute only applied if the second crime was committed after the first conviction became final. The punishment under the habitual offender statute was two to twenty years in prison.

After Haley was convicted of the Wal-Mart crime, a separate penalty proceeding was held on the habitual offender allegation. Although the records introduced by the State indicated that Haley had committed the 1992 robbery three days before his first felony conviction became final, this was overlooked by everyone (i.e., prosecutor, defense counsel, trial judge, witness who authenticated the records, and the jury). After the jury returned a guilty verdict on the habitual offender allegation, Haley was sentenced to 16 ½ years in prison.

On appeal, appellate counsel failed to challenge the sufficiency of the evidence to support the habitual offender enhancement. It was not until state postconviction proceedings that the three day discrepancy was finally raised as a basis for ineligibility for the enhancement. The state postconviction court refused to address the claim on the merits because Haley had failed to raise the claim at trial or on direct appeal. Haley’s related claim of ineffective assistance of counsel was rejected on the merits with a summary ruling that counsel was not ineffective in failing to object to or to appeal the enhancement.

Haley next turned to the federal district court. There, the State conceded that Haley did not qualify as a habitual offender under Texas law. Despite this concession, the State refused to agree to resentencing and instead argued that the claim was procedurally defaulted. The Magistrate Judge recommended excusing the default and granting relief on the claim because Haley was actually innocent of the sentencing enhancement. Given this recommendation, the Magistrate Judge did not consider the ineffective assistance of counsel claim Haley also raised in his federal habeas petition. The recommendation was adopted by the District Court.

On appeal, the Fifth Circuit affirmed and ruled that the actual innocence exception to the procedural default doctrine applies to noncapital sentencing procedures involving a habitual or career offender. The court of appeals assumed, without discussion, that challenges to the sufficiency of noncapital sentencing evidence are cognizable in habeas proceedings under Jackson v. Virginia, 443 U.S. 307 (1979). The Supreme Court granted the State’s petition for writ of certiorari in light of "a growing divergence of opinion in the Courts of Appeals regarding the availability and scope of the actual innocence exception in the noncapital sentencing context." Ultimately, however, it declined to reach the question of how, if at all, the actual innocence exception applies in the context of noncapital sentencing. Instead, it remanded for consideration of the nondefaulted claims for comparable relief and other grounds for cause to excuse the procedural default.

In deciding this was the most appropriate procedure for a federal court to take before addressing actual innocence, the Court noted that claims of ineffective assistance of counsel often result in the cause necessary to overcome a default or provide a freestanding basis for relief. Indeed, in this case the State had both conceded that Haley had a strong ineffectiveness claim and had agreed not to raise any procedural bar to the claim on remand. Should Haley succeed on the merits of the claim, he would receive all of the relief that he seeks – resentencing. Further, a finding of ineffective assistance of counsel would provide cause to excuse the procedural default of his sufficiency of the evidence claim.

In the view of the majority, the judge-made rules related to procedural default should only be added to or expanded when necessary, which is not the case where alternative remedies are available. The restraint employed by the Court here was further justified by the State’s assurance that it would not seek to reincarcerate Haley during the pendency of the ineffective assistance of counsel claim. Also justifying restraint was the fact that "many threshold legal questions often accompany claims of actual innocence." As an example, the Court noted that Haley relied upon Jackson v. Virginia for his claim of insufficient evidence to support the recidivist enhancement. But the "constitutional hook" in Jackson was In re Winship, 397 U.S. 358 (1970), which held that due process requires proof of each element of a criminal offense beyond a reasonable doubt. Notably, the Court has not extended Winship’s protections to proof of prior convictions used to support recidivist enhancements. Almendarez-Torres v. United States, 523 U.S. 224 (1998). While Haley argued that Almendarez-Torres should be overruled, or that it was inapplicable given that the fact-finder in his case also was required to make a finding on the sequence of the prior convictions, the Court concluded that such "difficult constitutional questions" should "be avoided if possible."

Stevens dissented, joined by Kennedy and Souter. In Stevens’ view, "[t]his should be a simple case." Given the agreement by everyone that there was no factual basis for Haley’s conviction as a habitual offender, "it follows inexorably that [Haley] has been denied due process of law." Further, because the constitutional error resulted in imposition of an unauthorized sentence, respondent was a victim of a miscarriage of justice and "entitled to immediate and unconditional release." The only basis for depriving Haley of relief was a procedural rule of the Court’s own invention. In Stevens’ view, this unusual case – where it was undisputed that an unauthorized sentence had been imposed – justified the Court recognizing a narrow exception to its complex procedural default jurisprudence rather than remanding for other proceedings.

Stevens also observed that the State’s opposition to habeas relief in this case "might cause some to question whether the State has forgotten its overriding ‘obligation to serve the cause of justice.’" United States v. Agurs, 427 U.S. 97, 111 (1976.) He went on, however, to point out that the Court itself "is surely no less at fault," and accused the majority of having "lost sight of the basic reason why the ‘writ of habeas corpus indisputably holds an honored position in [the Court’s] jurisprudence.’ Engle v. Isaac, 456 U.S. 107, 126 (1982)."

Although joining Stevens’ dissent, Kennedy wrote separately because he found that the case merited a "further comment concerning the larger obligation of state or federal officials when they know an individual has been sentenced for a crime he did not commit." He noted, among other things, that "[e]xecutive discretion and clemency can inspire little confidence if officials sworn to fight injustice choose to ignore it." Acknowledging that some might conclude that Haley’s innocence "is a mere technicality," Kennedy responded: "In a society devoted to the rule of law, the difference between violating or not violating a criminal statute cannot be shrugged aside as a minor detail."

 

 

Nelson v. Campbell
541 U.S. ___, 2004 WL 1144374 (May 24, 2004)

In this capital case from Alabama, the Supreme Court unanimously ruled that a civil rights action under 42 U.S.C. § 1983 was an appropriate vehicle for petitioner’s Eighth Amendment claim seeking a temporary stay of execution and permanent injunctive relief preventing the State from engaging in a certain procedure to access petitioner’s veins for purposes of executing him. In so ruling, the Court made clear it was not deciding "the difficult question of how to categorize method-of-execution claims generally."

Petitioner David Nelson was sentenced to death in Alabama. At the time the Eleventh Circuit affirmed the denial of his habeas petition, in June 2002, the method of execution in Alabama was electrocution. That was changed in July 2002, when lethal injection was adopted as the method of execution unless an inmate expressly opted for death by electrocution by a certain deadline. Nelson did not choose the electric chair and thereby waived his "right" to that means of execution.

Because of Nelson’s years of drug abuse, his peripheral veins are severely compromised and are inaccessible by standard techniques for gaining intravenous access. In August 2003, anticipating that an execution date would be set in the near future, Nelson’s counsel contacted the warden to discuss how Nelson’s condition might impact the lethal injection procedure. At that time, the attorney expressly requested a copy of the written protocol for gaining venous access prior to execution. Counsel also asked that a physician consult with Nelson about the procedure. The warden refused to disclose the protocol but assured counsel that medical personnel would be present during the execution and that a prison physician would evaluate and speak with Nelson when he arrived at Holman Correctional Facility prior to his execution.

On September 3, 2003, the Alabama Supreme Court set petitioner’s execution for October 9, 2003. (Nelson had not objected to the setting of a date; in fact, he had agreed with the Attorney General that his execution should be promptly scheduled.) Nelson was transferred to Holman shortly thereafter where he was examined by a prison nurse. The nurse confirmed that Nelson’s veins were compromised. The warden then informed Nelson that prison personnel would cut a 0.5-inch incision in Nelson’s arm and catheterize his vein 24 hours before the execution. At a second meeting on October 3, 2003, however, the warden provided a dramatically different description of the procedure that would be followed. According to the warden, prison personnel would make a 2-inch incision in either Nelson’s arm or leg. This procedure would take place one hour before the execution and only local anesthesia would be used. There was no assurance that a physician would perform the procedure or would even be present. In response to this news, Nelson’s counsel again made an unsuccessful attempt to obtain the execution protocol.

Three days before the scheduled execution, Nelson filed the § 1983 action alleging that the planned "cut down" procedure violated the Eighth Amendment. Nelson sought a permanent injunction against use of the cut-down, a temporary stay of execution so that the District Court could consider the merits of the claim, a copy of the execution protocol, and the promulgation of a venous access protocol that comports with contemporary standards of medical care. In support of the complaint was an affidavit by a physician who explained that the cut-down is a dangerous and antiquated medical procedure that should only be employed by a trained physician in a clinical environment with the patient under deep sedation. The physician further noted that there are safer and less-invasive methods of venous access.

Respondents moved to dismiss the complaint on jurisdictional grounds, arguing that the claim and the accompanying stay request were the functional equivalent of a second or successive habeas petition which is subject to the gatekeeping provisions of 28 U.S.C. § 2244(b). The District Court agreed and dismissed the complaint because it had not been authorized by the court of appeals. A divided panel of the Eleventh Circuit affirmed, looking to Fugate v. Department of Corrections, 301 F.3d 1287 (11^th Cir. 2002), where it had held that § 1983 claims challenging the method of execution sound in habeas. The appeals court further found that even if the complaint were construed as a request for authorization to file a second habeas petition, the request had to be denied since Nelson could not establish that but for the purported Eighth Amendment violation, no reasonable factfinder would have found him guilty of the underlying offense. See 28 U.S.C. § 2244(b)(2)(B)(ii). Thus, Nelson was without recourse in the federal courts to challenge the constitutionality of the cut down procedure.

The Supreme Court began its analysis by discussing the historical relationship between § 1983 actions and habeas proceedings. Supreme Court precedent has established that constitutionally based claims that challenge the fact of conviction or the duration of a sentence must be raised in a habeas petition, even where they would appear to fit within the literal language of § 1983. In contrast, constitutional claims that challenge only the conditions of confinement must be brought under § 1983. The Court had not yet decided "whether civil rights suits seeking to enjoin the use of a particular method of execution – e.g., lethal injection or electrocution – fall within the core of federal habeas corpus or, rather, whether they are properly viewed as challenges to the conditions of a condemned inmate’s death sentence." The Court observed that while such a law suit does not directly challenge the validity of the death sentence, if the result is a permanent injunction on the only authorized method of execution, it could in effect amount to a challenge to the fact of the sentence itself. The Court ultimately concluded that it need not reach in this case "the difficult question of how to categorize method-of-execution claims generally." It pointed out respondent’s concession at oral argument that § 1983 would be the appropriate vehicle to challenge the cut down procedure if it was being used for medical treatment of a prisoner unrelated to an execution. The Court saw "no reason on the face of the complaint to treat [Nelson’s] claim differently solely because he has been condemned to die." Simply because something is labeled as part of the execution procedure, the Court found, "is insufficient to insulate it from a § 1983 action."

The Court noted that respondent’s position would be stronger if the cut-down method were statutorily mandated, or if Nelson were unable or unwilling to concede that alternative measures for accessing the veins were available. Under those scenarios, success on the merits coupled with injunctive relief "would call into question the death sentence itself." Here, however, there was no statute nor duly enacted regulations requiring use of the cut-down. In addition, Nelson was clear that his complaint was that the cut-down, as well as the warden’s refusal to provide reliable information about the procedure to be used, were "wholly unnecessary to gaining venous access." Indeed, Nelson had himself alleged alternative procedures that the State could have adopted and which would have allowed the execution to proceed as scheduled.

The Court acknowledged that should the District Court on remand conduct an evidentiary hearing and conclude that the cut-down procedure is in fact necessary for administration of the lethal injection, it will have to address "the broader question left open here, of how to treat method-of-execution claims generally." The Court then noted, however, that it appeared that such a hearing would be unnecessary as the State now showed willingness to implement Nelson’s proposed alternatives.

The Court noted that its holding here is consistent with its approach to civil rights damages actions. The Court has permitted inmates to pursue claims for damages under § 1983, premised, for example, on an unreasonable search, so long as success on the merits would not necessarily imply that the plaintiff’s conviction was unlawful. "In the present context, focusing attention on whether [Nelson’s] challenge to the cut down procedure would necessarily prevent Alabama from carrying out its execution both protects against the use of § 1983 to circumvent any limits imposed by the habeas statute and minimizes the extent to which the fact of a prisoner’s imminent execution will require differential treatment of his otherwise cognizable § 1983 claims."

Next, the Court turned to the question of whether Nelson’s request for a temporary stay of execution, later recharacterized as a request for a preliminary injunction, somehow transformed his conditions of confinement claim into a challenge to the validity of the death sentence. The Court concluded that in the normal case, such a request would not. It explained, "[i]f a request for a permanent injunction does not sound in habeas, it follows that the lesser-included request for a temporary stay (or preliminary injunction) does not either." Here, however, there was a complication. In his prayer for relief, Nelson had included a vague request for an order granting injunctive relief and staying the execution. Although he failed to specify the injunctive relief he sought, the Court found it clear from the complaint that he wanted only to enjoin use of the cut-down by the State. It was troubled, in contrast, with the broad stay request which undermined Nelson’s assertion that the action was not brought as a delay tactic, and that he was not challenging the fact of his execution. Because the execution warrant had expired, that stay request was moot. The Court stated, however, that if Nelson sought a similarly broad stay in the future, "the District Court will need to address the question whether a request to enjoin the execution, rather than merely to enjoin an allegedly unnecessary precursor medical procedure, properly sounds in habeas."

Finally, the Court addressed respondent’s contention that by reversing the Eleventh Circuit the Supreme Court would open the floodgates to assorted method-of-execution challenges, as well as last minute stay requests. It first reiterated that its holding was extremely limited and that it was not resolving the question of how to treat general method-of-execution challenges. The Court then pointed out that its decision in Gomez v. United States District Court, 503 U.S. 653 (1992) (per curiam), made clear that "the mere fact than an inmate states a cognizable § 1983 claim does not warrant the entry of a stay as a matter of right." Before a district court can grant a stay, "it must consider not only the likelihood of success on the merits and the relative harm to the parties, but also the extent to which the inmate has delayed unnecessarily in bringing the claim." In fact, "there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay." Furthermore, although a § 1983 action avoids the many procedural impediments applicable to habeas corpus proceedings, the Prison Litigation Reform Act of 1995 imposes hurdles to civil rights suits that will prevent the onslaught predicted by respondent.

 

Schriro v. Summerlin
542 U.S. ___, 124 S.Ct. 2519 (2004)

In this capital case from Arizona, the Supreme Court reversed the Ninth Circuit Court of Appeals and held that Ring v. Arizona, 536 U.S. 584 (2002), does not apply retroactively to cases already final on direct review. The majority opinion was written by Justice Scalia, and was joined by the Chief Justice, and Justices O’Connor, Kennedy and Thomas. Justice Breyer dissented, joined by Justices Stevens, Souter and Ginsburg.

Warren Summerlin was convicted of first-degree murder and sexual assault. Under Arizona law at the time of Summerlin’s trial, it was the sentencing judge who determined whether aggravating factors were present. A death sentence was only authorized if one or more statutorily enumerated aggravating factors was found by the judge. In Summerlin’s case, the judge determined that two aggravating factors existed, no mitigating circumstances were present and Summerlin was accordingly sentenced to death. During federal habeas proceedings, the Ninth Circuit found that Summerlin was entitled to habeas relief under Ring v. Arizona because he had been denied a jury trial on the aggravating factors. Although the Ninth Circuit agreed with Arizona’s contention that Ring announced a new rule, it held that Summerlin could rely on the new rule because it was substantive, or, in the alternative, because it was a "watershed" procedural rule entitled to retroactive effect.

Justice Scalia began by discussing what constitutes a "substantive rule." He explained: "A rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes. . . . In contrast, rules that regulate only the manner of determining the defendant’s culpability are procedural." Applied here, Scalia quickly concluded that Ring announced merely a procedural rule. Scalia pointed out that the Supreme Court in Ring did not itself add a new element that had to be found in order for a defendant in Arizona to be eligible for the death penalty. Rather, it held that because Arizona had made certain factual findings prerequisites for the death penalty, a jury had to make those findings. To the extent that Ring was premised on the Supreme Court’s altered understanding of Arizona’s law, what was critical was that the actual content of the state law was unchanged.

Turning to whether Ring announced a "watershed" rule, Scalia noted that the relevant issue was not whether the Framers believed that juries are more accurate factfinders, or whether juries are in fact more accurate in their factfindings than judges. The question instead was "whether judicial factfinding so ‘seriously diminishe[s]’ accuracy that there is an ‘impermissibly large risk’ of punishing conduct the law does not reach." (Citations omitted.) Scalia found the evidence "too equivocal to support that conclusion," noting the disparate views on whether juries or judges are better factfinders.

Further, Scalia pointed out that in DeStefano v. Woods, 392 U.S. 631 (1968) (per curiam), the Court refused to give retroactive effect to Duncan v. Louisiana, 391 U.S. 145 (1968), which applied the Sixth Amendment jury trial right to the States. Although DeStefano was decided under a pre-Teague v. Lane, 489 U.S. 288 (1989), retroactivity analysis, Scalia found its reasoning to be "germane." There, the Court was unable to conclude that every trial before a judge alone was necessarily unfair, or that a defendant could never be treated as fairly by a judge as by a jury. Scalia thus observed: "If under DeStefano a trial held entirely without a jury was not impermissibly inaccurate, it is hard to see how a trial in which a judge finds only aggravating factors could be."

Scalia then responded to the dissent’s contention that juries are more accurate because they better reflect community standards when deciding, for example, whether a killing was heinous, cruel or depraved, one of the aggravating factors found by the trial judge in Summerin’s case. Scalia pointed out that the Arizona statute did "not condition death eligibility on whether the offense is heinous, cruel, or depraved as determined by community standards." As for the dissent’s contentions that centered around the concept that death is different, Scalia stated that this was not an application of Teague, but rather a rejection of it in favor of a broader test involving the balancing of competing considerations. Even if the majority were inclined to revisit Teague in this manner, it would not agree with the conclusions of the dissent. And while DeStefano did consider factors other than enhanced accuracy that are no longer relevant in light of the Teague formula, DeStefano made clear that it would have reached the same result had accuracy been the sole criterion for retroactivity.

In dissent, Justice Breyer argued that Ring involved a "watershed" procedural ruling that was entitled to retroactive effect under the second Teague exception. This exception, when applied in the context of a death sentence, is for a new procedural rule that is central to an accurate determination that death is a legally appropriate punishment.

According to Breyer, the majority overlooked three considerations that lead to a finding that Ring is retroactively applicable to cases on collateral review. First, "the factfinder’s role in determining the applicability of aggravating factors in a death case is a special role that can involve, not simply the finding of brute facts, but also the making of death-related, community-based value judgments." As an example, Breyer cited to the "heinous, cruel or depraved" aggravator that was involved in this case. Breyer asserted that consideration of this aggravating factor requires reference to community based standards that a jury is better equipped to identify and apply accurately.

Second, Breyer took the position that "Teague’s retroactivity principles reflect the Court’s effort to balance competing considerations." In his view, the interest in an accurate death sentence is more substantial than that of finality, particularly here, where making Ring retroactive would impact only about 110 cases. Further, Breyer did not believe that an ordinary citizen

could comprehend how there can be two death row inmates each sentenced in an unconstitutional manner, and yet only one of the pair is saved while the other put to death "all through an accident of timing." He questioned:

How can the Court square the spectacle with what it has called the "vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason"? Beck v. Alabama, 447 U.S. 625, 637-638 (1980) (internal quotation marks omitted.)

Third, Breyer questioned the relevance of the DeStefano decision given that it was decided under a pre-Teague framework.

Beard v. Banks
542 U.S. ___, 124 S.Ct. 2504 (2004)

In this Pennsylvania capital case, Justice Thomas (joined by Rehnquist, C.J., and O’Connor, Scalia, and Kennedy, JJ.), framed the issue for decision as "whether the rule announced in Mills [v. Maryland, 485 U.S. 367 (1988),] and McKoy [v. North Carolina, 494 U.S. 433 (1990),] can be applied on federal habeas review to a defendant whose conviction became final in 1987." 124 S.Ct. at 2508.

The Court first rejected Banks’ argument that, because the Pennsylvania Supreme Court considered his Mills claim on the merits during state post-conviction proceedings in 1995 under its "relaxed waiver rule," his conviction was not was not final for Teague purposes until that point. Because the relaxed waiver rule was discretionary and not absolute, the Court held that the a state court’s discretionary practice declining to apply ordinary waiver principles "does not render convictions and sentences that are no longer subject to direct review nonfinal for Teague purposes." 124 S.Ct. at 2511. The Court, in fact, stated that Banks’ argument "reflects a fundamental misunderstanding of Teague. Teague’s non-retroactivity principle acts as a limitation on the power of federal courts to grant ‘habeas corpus relief to. . . state prisoner[s].’ That is why federal habeas courts ‘must apply Teague before considering the merits of [a] claim,’ whenever the State raises the question . . ." 124 S.Ct. at 2511. The Court further explained that Teague protects not only the reasonable judgments of state courts but also the state’s interest in finality quite apart from their courts.

The Court then surveyed the legal landscape as it existed in 1987, and found that while "the generalized Lockett rule (that the sentencer must be allowed to consider any mitigating evidence) could be thought to support the Court’s conclusion in Mills and McKoy," it did not "mandate the Mills rule." 124 S.Ct. at 2512. Lockett and Eddings, the Court explained, "specifically considered only obstructions to the sentencer’s ability to consider mitigating evidence," while Mills involved a "shift in focus to individual jurors." 124 S.Ct. at 2512. Thus reasonable jurists could differ as to whether the "Lockett principle compelled Mills." Furthermore, in McKoy, the dissent explained that the Mills rule governs how the sentencer considers evidence, not what evidence it considers. "Given the brand new attention Mills paid to individual jurors and the relevance of the what/how distinction . . . (which again distinguishes Mills from the Lockett line), we must conclude that the Mills rule ‘broke new ground.’ Accordingly, Mills announced a new rule, which does not apply to respondent on collateral review, unless, of course, it falls under one of Teague’s exceptions." 124 S.Ct. at 2513 (internal citations omitted).

Banks made no argument that Mills fell under Teague’s first exception, which applies to rules forbidding punishment of certain primary conduct or to rules prohibiting a certain category of punishment for a class of defendants because of their status or offense. The Court rejected Banks’ argument that Mills fell under the second exception for "watershed rules of criminal procedure." The majority first "emphasized the limited scope of the second Teague exception," which is meant to apply to "a small core of rules requiring observance of those procedures that. . . are implicit in the concept of ordered liberty." 124 S.Ct. at 2513 (internal citations omitted). Because it is so limited, the Court reasoned, "it should come as no surprise that we have yet to find a new rule that falls under the second Teague exception." 124 S.Ct. at 2513 -2514. The limited nature of the exception also explains why the Court has only referred to Gideon v. Wainwright, 372 U.S. 335 (1963), as providing guidance as to a rule which may fall within the exception. While the avoidance of potentially arbitrary impositions of the death sentence motivated the Court in Mills and McKoy, the "fact that a new rule removes some remote possibility of arbitrary infliction of the death sentence does not suffice to bring it within Teague’s second exception. However laudable the Mills rule might be, ‘it has none of the primary and centrality of the rule adopted in Gideon.’" 124 S.Ct. at 2515 (internal citations omitted).

Justice Stevens (joined by Souter, Ginsburg and Breyer, JJ.) dissented, arguing that Mills "simply represented a straightforward application of our longstanding view that the Eighth and Fourteenth Amendments cannot tolerate the infliction os a sentence of death under [a] legal system that permit[s] this unique penalty to be wantonly and . . . freakishly imposed." 124 S.Ct. at 2516 (internal citations omitted). In his view, "the kind of arbitrariness that would enable 1 vote in favor of death to outweigh 11 in favor of forebearance would violate the bedrock fairness principles that have governed our trial proceedings for centuries." 124 S.Ct. at 2516.

Justice Souter (joined by Ginsburg, J.) issued a separate dissenting opinion. He acknowledged that the majority’s view of the "reasonable jurist" was not necessarily inconsistent with some of Teague’s progeny, but dissented because he believed "that this reading of Teague gives too much importance to the finality of capital sentences and not enough to their accuracy." 124 S.Ct. at 2518.

Castro v. United States
540 U.S. ___, 124 S.Ct. 786 (2003)

In this §2255 case, the Supreme Court addressed the dangers associated with a federal district court’s recharacterization of a pro se litigant’s submission under something under than §2255 as a §2255 motion, thereby triggering the bar to second or successive challenges if and when the prisoner later seeks to file what he considers to be his first §2255 motion. Before reaching this issue, the Court (Breyer, J., writing for a unanimous Court) resolved the "jurisdictional matter" of whether it could consider this case in light of 28 U.S.C. §2244(b)(3)(E), holding that "this provision does not bar our review here." 124 S.Ct. at 790. Reading the statutory language strictly, the Court explained that to be barred from certiorari review as a "denial of an authorization by a court of appeals to file a second or successive application," "the ‘denial’ must be the ‘subject’ of the certiorari petition." 124 S.Ct. at 791. Here, "[t]he ‘subject’ of Castro’s petition is not the Court of Appeals’ ‘denial of an authorization.’ It is the lower courts’ refusal to recognize that this §2255 motion is his first, not his second. That is a very different question." Id.

Having concluded that this case was properly before it, the Court (Breyer, joined by Rehnquist, C.J., and Stevens, O’Connor, Kennedy, Souter and Ginsburg, JJ.) went on to "hold, as almost every Court of Appeals has already held, that the lower courts’ recharacterization powers are limited in the following way:

The limitation applies when a court recharacterizes a pro se litigant’s motion as a first §2255 motion. In such circumstances the district court must notify the pro se litigant that it intends to recharacterize the pleading, warn the litigant that this recharacterization means that any subsequent §2255 motion will be subject to the restrictions on 'second or successive' motions, and provide the litigant an opportunity to withdraw the motion or to amend it so that it contains all the §2255 claims he believes he has. If the court fails to do so, the motion cannot be considered to have become a §2255 motion for purposes of applying to later motions the law's 'second or successive' restrictions. §2255, & para ;8.

124 S.Ct. at 792. Applying this limitation to petitioner’s case, the Court concluded that his 1997 §2255 motion could not be treated as second or successive, notwithstanding the fact that his 1994 Rule 33 motion had been recharacterized and denied as a §2255 motion. The Court further held that this result was reinforced, rather than undermined, by the fact that petitioner had not challenged the recharacterization of his 1994 pleading during his appeal of the denial of relief on that submission. 124 S.Ct. at 793.

Justice Scalia, joined by Justice Thomas, concurred in the portions of the opinion (Parts I and II) resolving the jurisdictional question, and in the judgment of the Court, but wrote separately to express his disapproval of the Court’s casual acceptance of the practice of recharacterizing pro se submissions, and to contend instead that, "because of the risk involved, pleadings should never be recharacterized into first §2255 motions . . ." 124 S.Ct. at 795.

Holland v. Jackson
542 U.S. ___, 124 S.Ct. 2736 (2004) (per curiam).

In this Tennessee non-capital murder case, the Court reversed the grant of relief on petitioner’s ineffective assistance of counsel claim, finding that the Sixth Circuit erred in concluding that the state court’s decision was contrary to and involved an unreasonable application of Strickland v. Washington. Petitioner’s claim was based on an allegation – raised for the first time seven years after his conviction – that newly discovered evidence contradicted portions of an eyewitness’s testimony. In denying relief, the state court found that petitioner offered no satisfactory reason for the delay in locating the evidence supporting his allegations, and that "even crediting [the factual allegations in] respondent’s ‘unsubstantiated pleading,’ ‘it in no way rises to the level of contradicting what Hughes claims to have seen’ respecting the shooting itself." 124 S.Ct. at 2737. After the district court denied federal habeas relief, the Sixth Circuit reversed, finding relief to be warranted under §2254(d)(1) "on only two specific grounds: first, that the state court had unreasonably applied Strickland, given that [the new witness’s] statement undermined the credibility of [the eyewitness’s] testimony; and second, that the state court’s opinion was contrary to Strickland because it assessed prejudice under a preponderance-of-the-evidence standard rather than a reasonable-probability standard." 124 S.Ct. at 2737.

As to the first ground for relief, the Supreme Court held that the "Sixth Circuit erred in finding the state court’s application of Strickland unreasonable on the basis of evidence not properly before the state court. Although the state court had ventured that it would deny relief on the merits even taking [the new witness’s] statement into account, its judgment also rested on the holding that the statement was not properly before it. Granting relief in disregard of this independent basis for decision was error." 124 S.Ct. at 2737. The Court went to explain that its cases have "made clear that whether a state court’s decision was unreasonable must be assessed in light of the record the court had before it." 124 S.Ct. at 2737-2738. The Court further observed that petitioner may have been able to have the alleged newly discovered evidence considered with or without an evidentiary hearing, but consideration of that evidence by a federal court would require satisfaction of §2254(e)(2) – either through a finding that he had not been at fault for the absence of the evidence from the state court record, or through meeting §2254(e)(2)’s exceptions. As to the role of §2254(d) where the federal court accepts new evidence, the Court noted that "[w]here new evidence is admitted, some Courts of Appeals have conducted de novo review on the theory that there is no relevant state-court determination to which one could defer." 124 S.Ct. at 2738. After "[a]ssuming, arguendo, that this analysis is correct and that it applies where, as here, the evidence does not support a new claim but merely buttresses a previously rejected one," the Court found that "it cannot support the Sixth Circuit’s action" in this case. Id. This was so, the Court explained, because there had been no finding that petitioner was diligent in state court, and because the Sixth Circuit "simply ignored entirely the state court’s independent ground for its decision, that [the new witness’s] statement was not properly before it." Id.

Finally, the Court also rejected the Sixth Circuit’s determination that the state court’s decision was contrary to Strickland in that it "actually applied a preponderance standard," as opposed to the "reasonable probability" standard. 124 S.Ct. at 2738-2739. After noting that the state court began its opinion by "reciting the correct Strickland standard," the Court went on to describe "three subsequent passages from [the state court’s] opinion" on which the Sixth Circuit based its conclusion, including one in which the state court referred to petitioner’s "‘burden of proving that the outcome of the trial would probably have been different but for those errors.’" 124 S.Ct. at 2738-2739. Citing Woodford v. Visciotti, 537 U.S. 19 (2002) (per curiam), the Court stated as follows: "We have held that such use of the unadorned word ‘probably’ is permissible shorthand when the complete Strickland standard is elsewhere recited. ¶ As we explained in Visciotti, §2254(d) requires that ‘state-court decisions be given the benefit of the doubt.’ ‘[R]eadiness to attribute error is inconsistent with the presumption that state courts know and follow the law.’ The Sixth Circuit ignored those prescriptions." 124 S.Ct. at 2739.

 

Yarborough v. Alvarado
541 U.S. ___, 124 S.Ct. 2140 (2004).

In this non-capital California murder case, the Court (Kennedy, J., joined by Rehnquist, C.J., and O’Connor, Scalia and Thomas, JJ.) reversed the Ninth Circuit’s grant of habeas relief, finding that the state court’s decision that petitioner was not "in custody" at the time he made an inculpatory statement to police did not involve an unreasonable application of clearly established federal law within the meaning of §2254(d)(1). The Court began by recounting certain relevant facts about the murder, Alvarado’s involvement, and the circumstances of the questioning, which took place after Alvarado, who was 17 years old, was brought to the police station by his parents at the request of the police, and questioned for approximately two hours after his parents’ request to be present for the questioning was rejected. After identifying Thompson v. Keohane, 516 U.S. 9 (1995), as stating the relevant "clearly established federal law" governing Alvarado’s claim that his statement was given in violation of Miranda, and after recognizing that the state court had properly identified Thompson as supplying the governing rule, the Court made the following observations about assessing "reasonableness" for §2254(d) purposes:

The term "unreasonable" is "a common term in the legal world and, accordingly, federal judges are familiar with its meaning." [Williams v. Taylor, 529 U.S.362, 410 (2000)]. At the same time, the range of reasonable judgment can depend in part on the nature of the relevant rule. If a legal rule is specific, the range may be narrow. Applications of the rule may be plainly correct or incorrect. Other rules are more general, and their meaning must emerge in application over the course of time. Applying a general standard to a specific case can demand a substantial element of judgment. As a result, evaluating whether a rule application was unreasonable requires considering the rule’s specificity. The more general the rule, the more leeway courts have in reaching outcomes in case by case determinations. Cf. Wright v. West, 505 U. S. 277, 308-309 (1992) (KENNEDY, J., concurring in judgment).

124 S.Ct. at 2149.

Turning to the state court’s application of federal law in this case, the Court quickly concluded that it was reasonable. The Court explained that the record contained factors supporting both a finding that Alvarado was in custody, and a finding that he was not, and concluded that "[t]hese differing indications lead us to hold that the state court’s application of our custody standard was reasonable." 124 S.Ct. at 2150. As to the Ninth Circuit’s decision to the contrary, the Court flatly declared that "[t]he Court of Appeals was nowhere close to the mark . . ." 124 S.Ct. at 2150. The Court went on to explain that the Ninth Circuit reached its erroneous result "by placing considerable reliance on Alvarado’s age and inexperience with law enforcement," an approach the court of appeals deemed appropriate in light of the Supreme Court’s "emphasis on juvenile status in other contexts . . ." 124 S.Ct. at 2150. Noting that the Ninth Circuit found the state court’s failure to extend consideration of juvenile status to the Miranda context, the Court observed as follows in connection with §2254(d):

The petitioner contends that if a habeas court must extend a rationale before it can apply to the facts at hand then the rationale cannot be clearly established at the time of the state-court decision. There is force to this argument. Section 2254(d)(1) would be undermined if habeas courts introduced rules not clearly established under the guise of extensions to existing law. Cf. Teague v. Lane, 489 U. S. 288 (1989). At the same time, the difference between applying a rule and extending it is not always clear. Certain principles are fundamental enough that when new factual permutations arise, the necessity to apply the earlier rule will be beyond doubt.

124 S.Ct. at 2151 (first set of internal citations omitted). The Court went on to conclude that this is not a case calling for extension, noting that "[o]ur opinions applying the Miranda custody test have not mentioned the suspect’s age, much less mandated its consideration." 124 S.Ct. at 2151. The Court further explained that "[t]here is an important conceptual difference between the Miranda custody test and the line of cases from other contexts considering age and experience. The Miranda custody inquiry is an objective test" designed to guide police, while more subjective inquiries, such as voluntariness, serve different purposes. 124 S.Ct. at 2151. "For these reasons," the Court concluded, "the state court’s failure to consider Alvarado’s age does not provide a proper basis for finding that the state court’s decision was an unreasonable application of clearly established law." 124 S.Ct. at 2152.

Justice O’Connor concurred, but wrote separately to note that 17 1/2 year olds, like Alvarado, "vary widely in their reactions to police questioning, and many can be expected to behave as adults." 124 S.Ct. at 2152. In light of the difficulties police would be expected to have in gauging the impact of such a suspect’s age, Justice O’Connor agreed "that the state court’s decision in this case cannot be called an unreasonable application of federal law simply because it failed explicitly to mention Alvarado’s age." Id..

Justice Breyer (joined by Stevens, Souter and Ginsburg, JJ.) dissented, contending that Alvarado was clearly "in custody" at the time of questioning and challenging the majority’s failure to make any "real argument at all explaining why any court would believe that the objective fact of a suspect’s age could never be relevant." 124 S.Ct. at 2155 (emphasis by Justice Breyer).

 

Pliler v. Ford
542 U.S. ___, 124 S.Ct. 2441 (2004).

In this non-capital California murder case involving petitions initially dismissed "without prejudice" because they were "mixed," and subsequently dismissed as untimely following exhaustion in state court and refiling in federal court, the Supreme Court addressed the narrow question whether the district court was required to give the habeas petitioner two warnings crafted by the Ninth Circuit prior to dismissing the petition. The Court (Thomas, J., joined by Rehnquist, C.J., O’Connor, Scalia, and Kennedy, JJ.) held that the warnings articulated by the Ninth Circuit were not required.

The case came before the Court against the following backdrop. Respondent (the habeas petitioner below) filed his petitions (challenging separate convictions) five days before his limitations period expired; recognizing that the petitions contained unexhausted claims, respondent also moved to stay the proceedings so he could return to state court and exhaust his unexhausted claims; the federal magistrate gave respondent three options: (1) the petitions could be dismissed without prejudice, and be refiled after exhaustion; (2) the unexhausted claims could be dismissed and the cases could continue with only the exhausted claims before the court; or (3) respondent could keep the petitions on file and challenge the magistrate’s conclusion that some claims were unexhausted. Respondent was not advised either that his request to stay the proceedings could not be considered unless he first withdrew his unexhausted claims, or that, if he chose the first option presented by the magistrate, his petitions would be untimely the moment they were dismissed "without prejudice." Respondent accepted dismissal "without prejudice," returned to state court for exhaustion, then refiled his petitions in federal court, where they were dismissed as untimely. On appeal, the Ninth Circuit held that the district court should have given the following warnings to respondent: "first, that ‘[the district court] would not have the power to consider [a prisoner’s] motions to stay the [mixed] petitions unless he opted to amend them and dismiss the then-unexhausted claims,’ and, second, if applicable, ‘that [a prisoner’s] federal claims would be time-barred, absent cause for equitable tolling, upon his return to federal court if he opted to dismiss the petitions ‘without prejudice’ and return to state court to exhaust all of his claims." 124 S.Ct. at 2445-2446 (all but first modification by the Court) (internal citations omitted).

In the course of describing the procedural history of the case, the Court noted that "the district court correctly concluded that it did not have discretion to stay respondent’s mixed petitions." 124 S.Ct. at 2444. After further making clear that it was not "addressing the propriety of th[e] stay-and-abeyance procedure," the Court held that "federal district judges are not required to give pro se litigants these two warnings [articulated by the Ninth Circuit]." 124 S.Ct. at 2446. The Court explained: "District judges have no obligation to act as counsel or paralegal to pro se litigants . . . Explaining the details of federal habeas procedure and calculating statutes of limitations are tasks normally and properly performed by trained counsel as a matter of course. Requiring district courts to advise a pro se litigant in such a manner would undermine district judges’ role as impartial decisionmakers." 124 S.Ct. at 2446. The Court reasoned further that the first warning required by the Ninth Circuit could mislead some petitioners into seeking stay/abeyance when they would be better served by going forward only on exhausted claims. The Court also observed that the "second advisement [articulated by the Ninth Circuit] would force upon district judges the potentially burdensome, time-consuming, and fact-intensive task of making a case-specific investigation and calculation of whether the AEDPA limitations period has already run or will have run by the time the petitioner returns to federal court." 124 S.Ct. at 2446. Finally, the Court distinguished this case from its recent decision in Castro v. United States, 124 S.Ct. 786 (2003), which requires district judges to advise petitioners of their options before recharacterizing a filing as a §2255 motion. The Court explained that "Castro dealt with a district court, of its own volition, taking away a petitioner’s desired route . . . and transforming it, against his will, into a §2255 motion . . . Castro, then, did not address the question whether a district court is required to explain to a pro se litigant his options before a voluntary dismissal and its reasoning sheds no light on the question we confront." 124 S.Ct. at 2447.

Having concluded that the district court was not required to give the warnings formulated by the Ninth Circuit, and having declined to consider the propriety of stay-and-abeyance procedures, the Court remanded the case "for further proceedings given the court of appeals’ concern that respondent had been affirmatively misled quite apart from the district court’s failure to give the two warnings." 124 S.Ct. at 2447.

Justice O’Connor wrote separately to note that she joined the Court’s opinion "because it is limited to the narrow question whether the notifications crafted by the Ninth Circuit must be given." 124 S.Ct. at 2448. She further emphasized that "[t]he propriety of the stay-and-abeyance procedure generally is not addressed," and noted that "seven of the eight Circuits to consider it have approved stay-and-abeyance as an appropriate exercise of a district court’s equitable powers." Id. After expressing agreement with the Court’s views on the obligations of district judges, Justice O’Connor concluded as follows: "Nevertheless, if the petitioner is affirmatively misled, either by the court or by the State, equitable tolling might well be appropriate. This is a question for the Ninth Circuit to consider on remand." Id.

Justice Stevens (joined by Justice Souter) concurred in the judgment, stating that although he "fully agree[d] with the views expressed by Justice Ginsburg [in her dissent]," he was "persuaded that the judgment entered by the Court -- remanding to the Ninth Circuit to determine the propriety of equitable tolling -- is both consistent with those views and correct." 124 S.Ct. at 2448.

Justice Ginsburg (joined by Justice Breyer) dissented, contending that the Court should have addressed the "pivotal" issue of the propriety of stay-and-abeyance procedure, and noting that the magistrate’s "characterization of the dismissal orders as ‘without prejudice’ seems to me highly misleading." 124 S.Ct. at 2449.

Justice Breyer dissented, expressing his view that stay-and-abeyance is a proper and workable response to the problems created by the total exhaustion rule and the statute of limitations as construed in Duncan v. Walker, 533 U.S. 167 (2001). During the discussion of this view, Justice Breyer appeared to indicate a belief that the statute of limitations applies claim-by-claim, stating as follows: The limitations period "requires a prisoner to file a federal habeas petition with at least one exhausted claim within the 1-year period, and it prohibits the habeas petitioner from subsequently including any new claim." 124 S.Ct. at 2451.

 

Tennard v. Dretke
542 U.S. ___, 124 S.Ct. 2562 (2004).

In this Texas capital case, the Court (6 to 3) (O’Connor, J., joined by Stevens, Kennedy, Souter, Ginsburg and Breyer, JJ.) vacated the Fifth Circuit’s denial of a certificate of appealability (COA) and remanded for further consideration. Relying on Penry v. Lynaugh, 492 U.S. 302 (1989) (Penry I), petitioner contended that the Texas capital sentencing "scheme was inadequate for jurors to give effect to his evidence of low intelligence" -- namely an IQ score of 67 and evidence that petitioner was gullible. 124 S.Ct. at 2565. The state courts and the federal district court rejected his claim, and the Fifth Circuit, after briefing and oral argument, denied a COA.

In rejecting petitioner’s request for a COA, the Fifth Circuit applied its own "screening test" for Penry claims, which the Supreme Court described as "a threshold inquiry into whether the petitioner presented ‘constitutionally relevant’ mitigating evidence, that is, evidence of a ‘"uniquely severe permanent handicap with which the defendant was burdened through no fault of his own,"’ and evidence that ‘"'the criminal act was attributable to this severe permanent condition."’" 124 S.Ct. at 2568 (citations omitted). Under this test, the Fifth Circuit determined that petitioner failed in two ways: first, "evidence of low IQ alone does not constitute a uniquely severe condition," and second, petitioner "did not show that the crime he committed was attributable to his low IQ." 124 S.Ct. at 2568.

Before examining the Fifth Circuit’s decision, the Supreme Court reiterated the standard for issuance of a COA, and added this statement about the role of §2254(d):

The petitioner’s arguments ultimately must be assessed under the deferential standard required by 28 U. S. C. §2254(d)(1): Relief may not be granted unless the state court adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."

124 S.Ct. at 2569.

Turning to the analysis in this case, the Court began by observing that "[d]espite paying lipservice to the principles guiding issuance of a COA . . . the Fifth Circuit’s analysis proceeded along a distinctly different track. Rather than examining the District Court’s analysis of the Texas court decision, it invoked its own restrictive gloss on Penry I[.]" 124 S.Ct. at 2569. The Court went on to declare that the Fifth Circuit’s "test for ‘constitutional relevance’" of evidence mitigating when considering a Penry claim "has no foundation in the decisions of this Court." 124 S.Ct. at 2570. The Court went on to note that it has previously described "the relevance standard applicable to mitigating evidence . . . in the most expansive terms." 124 S.Ct. at 2570. Explaining that the "Fifth Circuit’s test is inconsistent with these principles," the Court observed that, "[m]ost obviously, the test will screen out any positive aspect of a defendant’s character, because good character traits are neither ‘handicap[s]’ nor typically traits to which criminal activity is "‘attributable.’" Id. After further criticism of the Fifth Circuit’s "constitutional relevance" test, the Court summed up its conclusions as follows:

We have never denied that gravity has a place in the relevance analysis, insofar as evidence of a trivial feature of the defendant's character or the circumstances of the crime is unlikely to have any tendency to mitigate the defendant's culpability. . . However, to say that only those features and circumstances that a panel of federal appellate judges deems to be "severe" (let alone "uniquely severe") could have such a tendency is incorrect. Rather, the question is simply whether the evidence is of such a character that it "might serve ‘as a basis for a sentence less than death.’"

124 S.Ct. at 2571 (internal citations omitted).

As to the "nexus" requirement applied by the court of appeals, the Court declared that "[t]he Fifth Circuit was likewise wrong to have refused to consider the debatability of the Penry question on the ground that Tennard had not adduced evidence that his crime was attributable to his low IQ." 124 S.Ct. at 2571. The Court explained that "[n]othing in our opinion [in Atkins v. Virginia, 536 U.S. 304 (2002),] suggested that a mentally retarded individual must establish a nexus between her mental capacity and her crime before the Eighth Amendment prohibition on executing her is triggered. Equally, we cannot countenance the suggestion that low IQ evidence is not relevant mitigating evidence -- and thus that the Penry question need not even be asked -- unless the defendant also establishes a nexus to the crime." 124 S.Ct. at 2571-2572.

Having concluded that "the Fifth Circuit’s screening test has no basis in our precedents and, indeed, is inconsistent with the standard we have adopted for relevance in the capital sentencing context," the Court "turn[ed] to the analysis the Fifth Circuit should have conducted[.]" 124 S.Ct. at 2572. The Court went on to find that "[r]easonable jurists could conclude [both] that the low IQ evidence Tennard presented was relevant mitigating evidence . . . [and that] the Texas Court of Criminal Appeals’ application of Penry to the facts of Tennard’s case was unreasonable." Explaining the second of these conclusions, the Court noted that "[i]mpaired intellectual functioning has mitigating dimension beyond the impact it has on the individual’s ability to act deliberately." Id.

Finally, the Court again reiterated that "the Fifth Circuit’s ‘uniquely severe permanent handicap’ and ‘nexus’ tests are incorrect, and we reject them," then concluded by holding that petitioner was entitled to a COA and remanded the case for further proceedings. 124 S.Ct. at 2573.

Chief Justice Rehnquist dissented, contending that reasonable jurists would not "disagree with the district court’s conclusion that the jury in this case had the ability to give mitigating effect to Tennard’s evidence of low intelligence through the first and second [Texas] special issues." 124 S.Ct. at 2575.

Justice Scalia dissented to repeat his view that "unchanneled sentencer discretion has no basis in the Constitution," and to explain that he "cannot require the issuance of a COA when the insubstantial right at issue derives from case law in which this Court has long left the Constitution behind and embraced contradiction." 124 S.Ct. at 2575.

Justice Thomas dissented separately to express his agreement with Justice Scalia.

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