Panetti v. Quarterman
127 S.Ct. 2842 (2007)
In this Texas capital case, the Court (5-4) reversed the denial of relief on petitioner’s
Ford v. Wainwright, 477 U.S. 399 (1986), claim and remanded for further proceedings. After the
conclusion of the first round of federal habeas review, the Texas state court set petitioner’s execution
date, and petitioner responded with a state habeas challenge to his competency to be executed, which was
summarily dismissed. Petitioner then returned to the federal habeas court with a petition challenging his
competency and a request to stay his execution to permit review of the competency claim. The district court
granted the stay and petitioner returned to state court and renewed his request for a determination of his
competency. Petitioner supported his state court challenge with written statements from a psychologist and
a law professor, and moved for, inter alia, appointment of counsel, funding for expert assistance, a
competency hearing, and a transcript of the proceedings. While the state court initially pledged to hold a
status conference, it reneged on that pledge (and informed only the prosecution that it was doing so) in
favor appointing its own experts, without input from the parties, to examine petitioner’s competency claim.
After the court-selected experts reported that petitioner was malingering, petitioner – still without
appointed counsel, funds for expert assistance, or a proceeding at which to challenge the court’s experts’
conclusions – renewed his requests for those items and explained their importance to a fair determination
of the issues. The state court responded by closing the case. Petitioner did not appeal this action, but
instead returned to federal district court, where he secured appointment of counsel, funds for expert
assistance, and an evidentiary hearing. The district court found that the state court proceedings had been
inadequate under both state law and Ford, but denied relief on the merits because petitioner
satisfied the Fifth Circuit’s test for competency, which required only that he “know no more than the fact
of his impending execution and the factual predicate for the execution.” Against this background, the
Supreme Court addressed several issues.
Writing for the Court, Justice Kennedy (joined by Stevens, Souter, Ginsburg, and Breyer, JJ.) began by
resolving the jurisdictional question left open in Stewart v. Martinez-Villareal, 523 U.S. 637
(1998), i.e., whether a Ford claim presented for the first time in a second federal habeas petition
should be treated as “second or successive” and subjected to the requirements of 28 U.S.C. §2244(b). Noting
the state’s acknowledgment that Ford claims“are not ripe until after the time has run to file a
first federal habeas petition,” and that a rule mandating that prisoners include unripe Ford claims
in first habeas petitions would be “counterintuitive” and “would add to the burden imposed on courts,
applicants, and the States, with no clear advantage to any,” the Court took a more pragmatic approach.
127 S.Ct. at 2852. Looking to “‘the implications for habeas practice,’” 127 S.Ct. at 2852, the Court held
that “Congress did not intend the provisions of AEDPA addressing ‘second or successive’ petitions to
govern a filing in the unusual posture presented here: a §2254 application raising a Ford
-based incompetency claim filed as soon as that claim is ripe.” 127 S.Ct. at 2853. Thus, “[t]he
statutory bar on ‘second or successive’ applications does not apply to a Ford claim brought in an
application filed when the claim is first ripe.” 127 S.Ct. at 2855.
Having resolved the jurisdictional question, the Court moved on to consideration of petitioner’s Ford
claim. Before discussing the constitutional merits, the Court addressed petitioner’s contention that the state
court proceedings involved an unreasonable application of Ford, and “agree[d] with petitioner that no
deference is due.” 127 S.Ct. at 2855. First, the Court observed that, “[w]hen there is no majority opinion,
the narrower holding controls,” and found that, “[u]nder this rule, Justice Powell’s opinion [in Ford]
constitutes the ‘clearly established’ law for purposes of §2254 and sets the minimum procedures a State must
provide to a prisoner raising a Ford-based competency claim.” 127 S.Ct. at 2856. After identifying the
procedural guarantees prescribed by Ford, the Court identified a series of defects in the state court’s
handling of petitioner’s claim. For example, the state court: (1) refused to transcribe the proceedings; (2)
failed to supply petitioner with evenhanded or accurate information about the proceedings; (3) may have violated
state law by failing to hold a competency hearing; (4) appeared to reject petitioner’s claim “solely on the basis
of the examinations performed by the psychiatrists it had appointed -- precisely the sort of adjudication
Justice Powell warned would ‘invit[e] arbitrariness and error,’” 127 S.Ct. at 2857; (5) “failed to provide
petitioner with an adequate opportunity to submit expert evidence in response to the report filed by the
court-appointed experts” after leading petitioner’s counsel to reasonably believe that the outstanding request
for funds with which to consult experts would be ruled upon, 127 S.Ct. at 2857; and (6) “failed to provide
petitioner with a constitutionally adequate opportunity to be heard,”127 S.Ct. at 2858. With regard to the
implications of these defects under §2254(d), the Court stated that “[t]he state court’s denial of certain of
petitioner’s motions rests on an implicit finding: that the procedures it provided were adequate to resolve the
competency claim. . . . [T]his determination cannot be reconciled with any reasonable application of the
controlling standard in Ford.” “That the standard is stated in general terms,” the Court emphasized,
“does not mean the application was reasonable.” 127 S.Ct. at 2858; see also id. (quoting Carey v. Musladin,
(Kennedy, J., concurring in judgment)) (“AEDPA does not ‘require . . . some nearly identical factual pattern
before a legal rule must be applied’”); id. (quoting Lockyer v. Andrade, 538 U.S. 63, 76 (2003))
(“application of a principle [can be] unreasonable when it involves a set of facts ‘different from those of the
case in which the principle was announced’”). Finally, the Court concluded as follows with regard to §2254(d):
When a state court’s adjudication of a claim is dependent on an antecedent unreasonable application of
federal law, the requirement set forth in §2254(d)(1) is satisfied. A federal court must then resolve the
claim without the deference AEDPA otherwise requires. . . . Here, due to the state court’s unreasonable
application of Ford, the factfinding procedures upon which the court relied were ‘not adequate for
reaching reasonably correct results’ or, at a minimum, resulted in a process that appeared to be ‘seriously
inadequate for the ascertainment of the truth.’”
127 S.Ct. at 2858 (quoting Ford, 477 U.S. at 423-424 (Powell, J., concurring in part and concurring in
judgment)).
Turning at last to the merits of petitioner’s Ford claim, the Court found “much in the record to
support the conclusion that petitioner suffers from severe delusions,” and identified the “legal inquiry”
as “whether these delusions can be said to render him incompetent.” 127 S.Ct. at 2860. While the Fifth
Circuit resolved this question against petitioner by confining the competency inquiry to whether petitioner
was aware “that he [is] going to be executed and why he [is] going to be executed,” the Court found this
standard “too restrictive.” 127 S.Ct. at 2860 (internal quotation marks omitted). The Court explained that
whereas Justice Powell’s opinion in Ford construed the Eighth Amendment to forbid the execution of
“those who are unaware of the punishment they are about to suffer and why they are to suffer it,” the
Fifth Circuit’s rule “treats a prisoner’s delusional belief system as irrelevant if the prisoner knows that
the State has identified his crimes as the reason for his execution.” 127 S.Ct. at 2861. Observing that
“[t]he principles set forth in Ford are put at risk by a rule” like the Fifth Circuit’s, the Court
found that “[a] prisoner’s awareness of the State’s rationale for an execution is not the same as a
rational understanding of it. Ford does not foreclose inquiry into the latter.” 127 S.Ct. at
2861-2862. Here, the record indicated that petitioner “suffers from a severe, documented mental illness
that is the source of gross delusions preventing him from comprehending the meaning and purpose of the
punishment to which he has been sentenced.” 127 S.Ct. at 2862. “This argument,” the Court held, “should
have been considered.” Id. Finally, the Court made clear that it was not attempting “to set down a rule
governing all competency determinations,” noting that the record was not sufficiently informative due to
the district court having been bound by the Fifth Circuit’s unduly restrictive test at the time the record
was developed. 127 S.Ct. at 2862. Describing the need for a remand for further consideration, the Court
observed that “[t]he conclusions of physicians, psychiatrists, and other experts in the field will bear
upon the proper analysis . . . [a]nd there is precedent to guide a court conducting the Eighth Amendment
analysis.” 127 S.Ct. at 2863 (citing Roper v. Simmons, 543 U.S. 551, 560-564 (2005);
Atkins v. Virginia, 536 U.S. 304, 311-314 (2005); Ford, 477 U.S. at 406-410).
Justice Thomas (joined by Roberts, C.J., and Scalia and Thomas, JJ.) dissented contending that
petitioner’s claim should have been dismissed as second or successive because it was not presented, unripe,
in his first federal habeas petition, that the state court’s decision did not involve an unreasonable
application of Ford because petitioner had not presented that court with enough to trigger Ford’s
procedural requirements, and that the Court’s holding – “that the Eighth Amendment requires ‘rational
understanding,’” 127 S.Ct. at 2874 – lacked support in existing Eight Amendment jurisprudence.
Bowles v. Russell
127 S.Ct. 2360 (2007)
In this non-capital habeas case, the Court (Thomas, J., joined by Roberts, C.J., Scalia, Kennedy and Alito,
JJ.) held that petitioner’s untimely notice of appeal deprived the court of appeals of jurisdiction,
notwithstanding the fact that it was filed in reliance upon a district court order purporting to extend the
time for filing. The Court began by describing 28 U.S.C. §2107 (a) and Rule 4(a)(6), which set the filing
period for a notice of appeal and prescribe the procedure under which a district court may reopen the time
for filing “‘for a period of 14 days after the date when its order is entered . . .’” 127 S.Ct. 2363. The
Court then noted that it has “long held that the taking of an appeal within the prescribed time is
“‘mandatory and jurisdictional,’” 127 S.Ct. at 2363, and explained that petitioner’s non-compliance with
the statutory deadline established by §2107 “deprived the Court of Appeals of jurisdiction.” 127 S.Ct. at
2366. The Court went on to reject petitioner’s request that his untimeliness be excused under the “‘unique
circumstances’ doctrine,” reasoning that, “[b]ecause this Court has no authority to create equitable
exceptions to jurisdictional requirements, use of the ‘unique circumstances’ doctrine is illegitimate.” 127
S.Ct. at 2366. The Court concluded by observing that, “[i]f rigorous rules like the one applied today are
thought to be inequitable, Congress may authorize courts to promulgate rules that excuse compliance with
the statutory time limits.” 127 S.Ct. 2367.
Justice Souter (joined by Stevens, Ginsburg and Breyer, JJ.) dissented, contending, inter alia, that “[i]t
is intolerable for the judicial system to treat people this way, and there is not even a technical
justification for condoning this bait and switch.” 127 S.Ct. 2367.
Fry v. Pliler
127 S.Ct. 2321 (2007)
In this non-capital California murder case, the Court unanimously held that “in §2254 proceedings a court
must assess the prejudicial impact of constitutional error in a state-court criminal trial under the
‘substantial and injurious effect’ standard set forth in Brecht [v. Abrahamson, 507 U. S. 619
(1993)], whether or not the state appellate court recognized the error and reviewed it for harmlessness
under the ‘harmless beyond a reasonable doubt’ standard set forth in Chapman [v. California,
386 U. S. 18 (1967)].” 127 S.Ct. at 2328. Writing for the Court, Justice Scalia first established that
Brecht “did not turn on whether the state court itself conducted Chapman review,” and that
Brecht clearly assumed that the Kotteakos standard [which was adapted from direct federal
review to federal habeas review in Brecht] would apply in virtually all §2254 cases.” 127 S.Ct. at
2325. The Court then rejected petitioner’s contention that “§2254(d)(1), as interpreted in [Mitchell
v.] Esparza, [540 U.S. 12 (2003) (per curiam),] eliminates the requirement that a petitioner also
satisfy Brecht’s standard [in addition to satisfying §2254(d)].” 127 S.Ct. at 2326. The Court
explained:
That conclusion is not suggested by Esparza, which had no reason to decide the point. Nor is it
suggested by the text of AEDPA, which sets forth a precondition to the grant of habeas relief . . ., not an
entitlement to it. Given our frequent recognition that AEDPA limited rather than expanded the availability of
habeas relief, . . . it is implausible that, without saying so, AEDPA replaced the Brecht standard of
“‘actual prejudice,’” with the more liberal AEDPA/Chapman standard which requires only that the state
court’s harmless-beyond-a-reasonable-doubt determination be unreasonable. That said, it certainly makes no
sense to require formal application of both tests (AEDPA/Chapman and Brecht) when the latter
obviously subsumes the former.
127 S.Ct. at 2327 (internal citations omitted) (emphasis by the Court).
Finally, the Court refused to review the Ninth Circuit’s determination that the state trial court’s error in
excluding third party guilt evidence from petitioner’s trial was harmless under Brecht because
“[t]hat argument . . . is not fairly encompassed within the question presented.” 127 S.Ct. at 2327.
Justice Stevens (joined by Souter and Ginsburg, JJ. and joined in part by Breyer, J.), joined all of
the Court’s opinion except its refusal to “answer the question whether the constitutional error was
harmless under . . . Brecht . . .” 127 S.Ct. at 2328. Justice Stevens noted that the parties
appeared to regard that question as fitting “within the awkwardly drafted question that we agreed to
review,” and that “our answer to the question . . . would emphasize the important point that the Brecht
standard . . . imposes a significant burden of persuasion on the State.” iD. After pointing out that the jury –
petitioner’s third after two previous juries hung – deliberated for five weeks before returning a verdict, and
that Chambers v. Mississippi 410 U.S. 284 (1973), error like that in this case “is by nature prejudicial,
” Justice Stevens could not “agree with the Ninth Circuit’s conclusion that the erroneous exclusion of
[petitioner’s evidence] was harmless under [Brecht].” 127 S.Ct. at 2329.
Justice Breyer joined the Court’s determination that Brecht applies in all habeas cases, and joined
Justice Stevens’ call for review of the Ninth Circuit’s application of Brecht in this case. He wrote
separately, however, to emphasize that prejudice is ordinarily inherent in true Chambers error, and
to state his view that the case should be remanded to the Ninth Circuit for reconsideration of whether
Chambers error actually occurred in this case.
Roper v. Weaver
127 S.Ct. 2022 (2007) (per curiam)
The Court granted certiorari in this Missouri capital case to “decide whether the Court of Appeals had
exceeded its authority under 28 U.S.C. §2254(d)(1) by setting aside a capital sentence on the ground that
the prosecutor’s closing statement was ‘unfairly inflammatory.’” 127 S.Ct. at 2022. After briefing and oral
argument, however, the Court dismissed the writ as improvidently granted. The Court noted that two other
capital cases involving “essentially the same” closing arguments by the same prosecutor resulted in grants
of federal habeas relief under pre-AEDPA law. 127 S.Ct. at 2022-2023. In this case, Weaver filed his
initial federal habeas petition before the AEDPA took effect, but that petition was dismissed by the
district court on the ground that Weaver’s simultaneous pursuit of a writ of certiorari seeking Supreme
Court review of the state court’s denial of post-conviction relief rendered the petition unexhausted and
required its dismissal. Weaver re-filed his petition after the AEDPA took effect. Noting Weaver’s contention
that, pursuant to Lawrence v. Florida, 127 S.Ct. 1079 (2007), the AEDPA should not apply to his case, the
Court acknowledged that Lawrence “conclusively establishes that the district court was wrong to” dismiss
the pre-AEDPA petition, but found it “unnecessary to resolve” the question of whether this “unusual procedural
history” rendered “the AEDPA standard . . . inapplicable . . .” 127 S.Ct. at 2024. “Regardless of the answer to
that question,” the Court concluded, “we find it appropriate to exercise our discretion to prevent these three
virtually identically situated litigants from being treated in a needlessly disparate manner, simply because the
District Court erroneously dismissed respondent’s pre-AEDPA petition.” 127 S.Ct. at 2024.
Chief Justice Roberts concurred in the result, but wrote separately to note, without elaboration, that he
did “not agree with all the reasons given in the per curiam for the discretionary decision to dismiss
the writ as improvidently granted . . .” 127 S.Ct. at 2024.
Justice Scalia (joined by Thomas and Alito, JJ.) dissented, contending, inter alia, that the
district court’s erroneous dismissal of Weaver’s first petition did not justify “aborting this argued
case,” 127 S.Ct. at 2025; and that the Eighth Circuit’s “grossly erroneous” decision granting Weaver
relief should not be permitted to remain “on the books,” 127 S.Ct. at 2027.
Schriro v. Landrigan
127 S.Ct. 1933 (2007)
In this Arizona capital case, the Court (Thomas, J., joined by Roberts, C.J., and Scalia, Kennedy and Alito,
JJ.) reversed the en banc Ninth Circuit’s decision remanding Landrigan’s case for an evidentiary hearing
on his ineffective assistance of counsel claim. At the penalty phase of the trial, counsel had two witnesses –
Landrigan’s mother and ex-wife – available to testify, but Landrigan refused to allow them to be called. During
a brief colloquy, Landrigan purported to confirm that he did not want mitigating evidence presented, and during
trial counsel’s subsequent attempt to proffer the information the witnesses would have provided, Landrigan
interrupted to add details portraying himself in a less favorable light. After his conviction and death sentence
were affirmed, Landrigan sought state post- conviction relief on the ground that trial counsel was ineffective
for failing to explore additional mitigating information concerning a “‘biological component’ of his violent
behavior by interviewing his biological father and other relatives.” The state post-conviction judge – who also
presided at trial – rejected Landrigan’s assertion that he would have cooperated with this effort, called his
claim “frivolous,” and refused his request for an evidentiary hearing. Landrigan pursued the claim in a
subsequent federal habeas petition. After permitting expansion of the record, however, the district court
concluded that “Landrigan could not demonstrate that he was prejudiced by any error his counsel may have
made,” that he “could not make out even a ‘colorable’ ineffective-assistance-of-counsel claim,” and that he
was therefore not entitled to an evidentiary hearing. 127 S.Ct. at 1938. A Ninth Circuit panel affirmed,
but the en banc court disagreed, finding that trial counsel was deficient in failing to conduct an
adequate pre-trial investigation, and that the state post-conviction court’s conclusion that Landrigan’s
purported waiver covered all available mitigating evidence was based on an unreasonable determination of
the facts. The en banc Ninth Circuit therefore remanded the case for an evidentiary hearing.
The Supreme Court began its discussion by noting that while district judges retain discretion to hold
evidentiary hearings, AEDPA’s changes to “the standards for granting federal habeas relief” inform the
exercise of that discretion. 127 S.Ct. at 1939-1940. The Court explained:
In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing
could enable an applicant to prove the petition’s factual allegations, which, if true, would entitle the
applicant to federal habeas relief. See, e.g., Mayes v. Gibson, 210 F. 3d 1284, 1287 (CA10 2000).
Because the deferential standards prescribed by §2254 control whether to grant habeas relief, a federal
court must take into account those standards in deciding whether an evidentiary hearing is appropriate.
See id., at 1287-1288 (“Whether [an applicant’s] allegations, if proven, would entitle him to habeas relief
is a question governed by [AEDPA]”). ¶ It follows that if the record refutes the applicant’s factual
allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary
hearing.
127 S.Ct. at 1940.
Having identified these principles, the Court went on to conclude that the district court “was well within
its discretion to determine that, even with the benefit of an evidentiary hearing, Landrigan could not
develop a factual record that would entitle him to habeas relief.” 127 S.Ct. at 1940. First, the Court o
bserved that if Landrigan did instruct counsel “not to offer any mitigating evidence,” “counsel’s failure
to investigate further could not have been prejudicial under Strickland.” 127 S.Ct. at 1941. The
Court then found that Landrigan’s colloquy provided a sufficient basis from which to conclude that the
state court’s finding as to the scope of his instruction to counsel was reasonable. Addressing the Ninth
Circuit’s findings that Landrigan’s prohibition had been limited to the two witnesses that were present
at trial, and that he could not have waived the presentation of other evidence because had not developed
that evidence, the Court found both that the evidence Landrigan sought to present in federal habeas
“overlaps” what his mother would have testified to at trial, and that, in any event, “Landrigan would
have undermined the presentation of any mitigating evidence that his attorney might have uncovered.” 127
S.Ct. at 1941. After emphasizing that this case involved a uniquely clear record of obstruction by a
defendant, the Court concluded that the district court did not abuse its discretion in finding that
“Landrigan could not overcome §2254(d)(2)’s bar to granting federal habeas relief.” 127 S.Ct. at 1942.
The Court turned next to the Ninth Circuit’s ”two alternative reasons for holding that Landrigan’s
inability to make a showing of prejudice under Strickland did not bar any potential habeas relief
and, thus, an evidentiary hearing.” 127 S.Ct. at 1942. As to the first – that the state court’s
characterization of Landrigan’s claim as “frivolous” and “meritless” involved an unreasonable application
of the Court’s ineffective assistance of counsel jurisprudence – the Court emphasized that this case was
not like other cases. “Neither Wiggins nor Strickland,” the Court explained, “addresses a
situation in which a client interferes with counsel’s efforts to present mitigating evidence to a
sentencing court. . . . Indeed, we have never addressed a situation like this.” 127 S.Ct. at 1942. The
Court also distinguished Rompilla v. Beard, explaining that although “the defendant refused to
assist in the development of a mitigation case, [he] did not inform the court that he did not want
mitigating evidence presented.” 127 S.Ct. at 1942. “In short,” the Court concluded, “at the time of the
Arizona postconviction court’s decision, it was not objectively unreasonable for that court to conclude
that a defendant who refused to allow the presentation of any mitigating evidence could not establish
Strickland prejudice based on his counsel’s failure to investigate further possible mitigating
evidence.” Id.
As to the second of the Ninth Circuit’s “alternative reasons” – that Landrigan’s purported waiver was not
“knowing and informed” – the Court noted that it had “never imposed an ‘informed and knowing’ requirement
upon a defendant’s decision not to introduce evidence,” and that, even if such a requirement exists,
“Landrigan cannot benefit from it, for three reasons.” 127 S.Ct. at 1942. First, because he did not present
this “claim” to the state courts, “Landrigan failed to develop [it] . . ., and §2254(e)(2) therefore barred
the District Court from granting an evidentiary hearing on that basis.” 127 S.Ct. at 1942-1943. Second,
trial counsel represented that he had “carefully explained to Landrigan the importance of mitigating
evidence,” and the record provided no basis for rejecting that representation. 127 S.Ct. at 1943. And
third, Landrigan’s own remarks at trial indicated that he understood that the consequences of his stance
would include imposition of a death sentence.
Finally, the Court found that the Ninth Circuit “erred in rejecting the District Court’s finding that the
poor quality of Landrigan’s alleged mitigating evidence prevented him from making ‘a colorable claim’ of
prejudice.” 127 S.Ct. at 1943. After noting that almost all of the information Landrigan proposed to
present at a federal hearing could have been presented through his mother at trial, and that his “evidence
was weak,” the Court concluded as follows:
Even assuming the truth of all the facts Landrigan sought to prove at the evidentiary hearing, he still
could not be granted federal habeas relief because the state courts’ factual determination that Landrigan
would not have allowed counsel to present any mitigating evidence at sentencing is not an unreasonable
determination of the facts under §2254(d)(2) and the mitigating evidence he seeks to introduce would not
have changed the result. In such circumstances, a District Court has discretion to deny an evidentiary
hearing.
127 S.Ct. at 1944.
Justice Stevens (joined by Souter, Ginsburg and Breyer, JJ.) dissented contending, among other things,
that the Court’s assessments seriously misrepresented Landrigan’s proposed evidence, and that it’s
conclusions about whether Landrigan would have permitted the evidence to be presented, and the impact it
could have had at sentencing, were skewed by these misrepresentations and amounted to “pure guesswork.”
127 S.Ct. at 1944.
Brewer v. Quarterman
127 S.Ct. 1706 (2007)
In this companion case to Abdul-Kabir v. Quarterman, 127 S.Ct. 1654 (2007), the Supreme Court (Stevens,
J., joined by Kennedy, Souter, Ginsburg and Breyer, JJ.) granted relief from petitioner’s death sentence on the
ground that “the former Texas capital sentencing statute impermissibly prevented his sentencing jury from giving
meaningful consideration to constitutionally relevant mitigating evidence.” 127 S.Ct. at 1709. Referencing the
more extended discussion set forth in Abdul-Kabir, the Court observed that it has “repeatedly emphasized
that a Penry Penry [v. Lynaugh, 492 U.S. 302 (1989) (Penry I),] violation exists whenever a
statute, or a judicial gloss on a statute, prevents a jury from giving meaningful effect to mitigating evidence
that may justify the imposition of a life sentence rather than a death sentence. We do so again here, and hold
that the Texas state court’s decision to deny relief to Brewer under Penry I was both ‘contrary to’ and
‘involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of
the United States.’ 28 U. S. C. §2254(d).” 127 S.Ct. at 1710 (internal citation omitted).
As in Abdul-Kabir, the trial court in petitioner’s case refused all requested charges “designed to
give effect to the mitigating evidence,” and the prosecution urged the jury to focus strictly on answering
the Texas special issues as they had been posed. 127 S.Ct. at 1710. And as in Abdul-Kabir,
petitioner’s “mitigating evidence served as a ‘two-edged sword’ because it tended to confirm the State’s
evidence of future dangerousness as well as lessen his culpability for the crime.” 127 S.Ct. at 1712.
Acknowledging the possibility that petitioner’s “mitigating evidence was less compelling that Penry’s,” the Court
made clear that neither this “difference” nor the Fifth Circuit’s characterizations of the “quantity, degree or
immutability” of petitioner’s evidence could “provide an acceptable justification for refusing to apply the
reasoning in Penry I to this case.” 127 S.Ct. at 1712. Rather, the Court explained, even “[u]nder the
narrowest possible reading of . . . Penry I, the Texas special issues do not provide for adequate
consideration of a defendant’s mitigating evidence when that evidence functions as a ‘two-edged sword.’” 127
S.Ct. at 1713. Here, the Fifth Circuit’s reversal of the district court’s grant of relief on petitioner’s claim
“mischaracterized the law as demanding only that [mitigating] evidence be given ‘sufficient mitigating effect,’
and improperly equated ‘sufficient effect’ with ‘full effect.’” 127 S.Ct. at 1713. “This,” the Court explained,
“is not consistent with the reasoning of” Penry v. Johnson, 532 U. S. 782 (2001) (Penry II), and “has ‘no
foundation in the decisions of this Court.’” (quoting Tennard v. Dretke, 542 U. S. 274, 284 (2004)). 127
S.Ct. at 1713. The Court concluded by adding that the Fifth Circuit’s reasons for denying relief in this case
“fail to heed the warnings that have repeatedly issued from this Court regarding the extent to which the jury
must be allowed not only to consider such evidence, or to have such evidence before it, but to respond to it in
a reasoned, moral manner and to weigh such evidence in its calculus of deciding whether a defendant is truly
deserving of death.” 127 S.Ct. at 1714.
The dissenting opinions of Chief Justice Roberts (joined by Scalia, Thomas and Altio, JJ.), and Justice Scalia
(joined in full by Thomas, J., and joined as to part I by Alito, J.), are described in the summary of Abdul-Kabir.
Abdul-Kabir v. Quarterman
127 S.Ct. 1654 (2007)
In this Texas capital case, the Court (Stevens, J., joined by Kennedy, Souter, Ginsburg and Breyer, JJ.)
held that the instructions given to petitioner’s jury created a reasonable likelihood that the
constitutionally relevant mitigating evidence he had presented was not given meaningful consideration,
and that the state courts’ failure to recognize and remedy this error was both contrary to, and involved
an unreasonable application of, clearly established federal law.
At trial, petitioner presented two broad categories of mitigating evidence: testimony from two relatives
describing his history of neglect and abandonment; and testimony from two expert witnesses who described
the consequences of his troubled history, and acknowledged that petitioner would remain dangerous for some
time. As the Court described it, “the strength of [petitioner’s] mitigating evidence was not its potential
to contest his immediate dangerousness, to which end the experts’ testimony was at least as harmful as it
was helpful. Instead, its strength was its tendency to prove that his violent propensities were caused by
factors beyond his control – namely, neurological damage and childhood neglect and abandonment.” 127 S.Ct.
at 1661. In jury selection and closing argument, the prosecutor “discouraged jurors” from considering the
mitigating value of this evidence, and urged them instead to focus solely on Texas’ two “special issues” –
whether the offense had been deliberate, and whether petitioner would pose a future danger. 127 S.Ct. at
1661. In instructing the jury, the trial court made no mention of mitigation, and refused to give any
instruction authorizing jurors to answer one of the special issues in the negative if they believed
petitioner’s mitigating evidence warranted a sentence less than death. After his conviction and death
sentence were affirmed on direct appeal, petitioner – ultimately proceeding pro se – sought state habeas
relief on the ground that the instructions had deprived the jury of a means by which to give effect to his
mitigating evidence. The state trial judge recommended denying relief in an opinion which focused on
Graham v. Collins, 506 U.S. 461 (1993), and three subsequent state court decisions, and the Texas
Court of Criminal Appeals (CCA) accepted that recommendation with minor modifications. Petitioner’s
subsequent request for federal habeas relief was denied by the district court for lack of a “nexus”
between his mitigating evidence and the underlying offense, and that denial was eventually affirmed by the
Fifth Circuit on the grounds that the Texas special issues were sufficient to permit the jury to give full
consideration and effect to the mitigating evidence.
Against this backdrop, the Supreme Court began by acknowledging that AEDPA’s “provisions . . . govern the
scope of our review. We must therefore ask whether the CCA’s adjudication of [petitioner’s] claim on the
merits ‘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.’” 127 S.Ct. at 1664
(quoting 28 U.S.C. §2254(d)(1)). To answer this question, the Court first undertook a “careful review of
our jurisprudence,” which “ma[de] clear that well before . . . Penry [v. Lynaugh, 492 U.S.
302 (1989) (Penry I)], our cases had firmly established that sentencing juries must be able to give
meaningful consideration and effect to all mitigating evidence that might provide a basis for refusing to
impose the death penalty on a particular individual, notwithstanding the severity of his crime or his
potential to commit similar offenses in the future.” 127 S.Ct. at 1664. The Court also explained that
Penry I held that while Texas’s special issues could be adequate to facilitate consideration of
mitigating evidence under some circumstances, “[w]hen the evidence proffered is double edged, or is as likely to
be viewed as aggravating as it is as mitigating, the statute most obviously fails to provide for adequate
consideration of such evidence.” 127 S.Ct. at 1669.
Having identified the relevant clearly established law, the Court turned to an examination of the state
courts’ decisions rejecting petitioner’s claim. The Court first noted that the “Texas trial judge did not
analyze Penry I itself,” and instead relied upon three subsequent state court decisions and the
Supreme Court’s decision in Graham, which the judge took to instruct that the issue raised by
petitioner “‘must be determined on a case by case basis, depending on the nature of the mitigating
evidence offered and whether there exists other testimony in the record that would allow consideration
to be given.’” 127 S.Ct. at 1671. The Supreme Court disagreed, explaining that “denying relief on the
basis of that formulation of the issue, while ignoring the fundamental principles established by our
most relevant precedents, resulted in a decision that was both ‘contrary to’ and ‘involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the United
States.’” 127 S.Ct. at 1671 (quoting 28 U.S.C. §2254(d)(1)). The Court added that “[t]he state court’s
primary reliance on Graham, to the exclusion of our other cases in this line of jurisprudence,
was misguided.” 127 S.Ct. at 1671. The Court likewise found the CCA’s decision was unreasonable for
three reasons: (1) “the ruling ignored the fact that even though [petitioner’s] mitigating evidence may
not have been as persuasive as Penry’s, it was relevant to the question of [his] moral culpability for
precisely the same reason as Penry’s,” 127 S.Ct. at 1672; (2) “the judge’s assumption that it would be
appropriate to look at ‘other testimony in the record’ to determine whether the jury could give mitigating
effect to the testimony of [petitioner’s relatives] is neither reasonable nor supported by the Penry
opinion,” 127 S.Ct. at 1672; and (3) “the fact that the jury could give mitigating effect to some of the
experts’ testimony, namely, their predictions that [petitioner] could be expected to become less dangerous
as he aged, provides no support for the conclusion that the jury understood it could give such effect to
other portions of the experts’ testimony or that of other witnesses,” 127 S.Ct. at 1672. “In sum,” the
Court concluded, “the judge ignored our entire line of cases establishing the importance of allowing
juries to give meaningful effect to any mitigating evidence providing a basis for a sentence of life
rather than death. His recommendation to the CCA was therefore unsupported by either the text or the
reasoning in Penry I.” 127 S.Ct. at 1672.
After additional discussion of several more recent cases which “lend support to the conclusion that the
CCA’s decision was unsupported by either the text or the reasoning of Penry I,” 127 S.Ct. at 1673,
the Court concluded as follows:
Our cases following Lockett have made clear that when the jury is not permitted to give meaningful effect
or a “reasoned moral response” to a defendant’s mitigating evidence – because it is forbidden from doing
so by statute or a judicial interpretation of a statute – the sentencing process is fatally flawed. For
that reason, our post-Penry cases are fully consistent with our conclusion that the judgment of the Court
of Appeals in this case must be reversed.
127 S.Ct. at 1675 (footnote omitted).
Chief Justice Roberts (joined by Scalia, Thomas and Altio, JJ.) dissented from the Court’s decisions in
this case and the companion case of Brewer v. Quarterman, 127 S.Ct. 1706 (2007), contending that
the Court’s relevant decisions between Penry I in 1989 and the state courts’ decisions in 1999 were
“a dog’s breakfast of divided, conflicting, and everchanging analyses,” such that there was no clearly
established federal law to which the state courts could properly be held under §2254(d)(1). 127 S.Ct. at
1676.
Justice Scalia also dissented from the Court’s decisions in this case and Brewer. In section I
(joined by Thomas and Alito, JJ.), Justice Scalia argued that the Court’s decision effectively overruled
Johnson v. Texas, 509 350 (1993), by reinstating the “full effect” approach of Penry I,
from which the Court “unambiguously drew back” in Johnson in favor of a “some effect” standard,
and that this was a result of the “changed . . . moral sensibilities of the majority of the Court.”
127 S.Ct. at 1686. In section II (joined only by Thomas, J.), Justice Scalia added that, “[i]f . . .
a majority of the Justices are going to govern us by their moral perceptions, in this area at least they
ought to get their moral perceptions right the first time. . . . [N]o one can be at ease with the stark
reality that this Court’s vacillating pronouncements have produced grossly inequitable treatment of those
on death row. Relief from sentence of death because of the jury’s inability to give “full effect” to all
mitigating factors has been made available only to those who have managed to drag out their habeas
proceedings until today. This is not justice. It is caprice.” 127 S.Ct. at 1686.
Whorton v. Bockting
127 S.Ct. 1173 (2007)
In this Arizona child molestation case, the Supreme Court unanimously held that Crawford v. Washington,
541 U.S. 36 (2004), announced a “new rule” within the meaning of Teague v. Lane, 489 U.S. 288 (1989),
and that Crawford’s rule did not satisfy either Teague exception against retroactive application
on collateral review. Writing for a unanimous Court, Justice Alito first found that “it is clear that
Crawford announced a new rule. The Crawford rule was not ‘dictated’ by prior precedent. Quite the
opposite is true: The Crawford rule is flatly inconsistent with the prior governing precedent, [Ohio
v.] Roberts, [448 U.S. 56 (1980),] which Crawford overruled.” 127 S.Ct. at 1181.
Turning to whether Crawford’s rule satisfied Teague’s second exception – for “watershed”
rules – the Court noted that “[i]n order to qualify as watershed, a new rule must meet two requirements.
First, the rule must be necessary to prevent ‘an “‘impermissibly large risk’”’ of an inaccurate conviction.
Second, the rule must ‘alter our understanding of the bedrock procedural elements essential to the fairness
of a proceeding.’” 127 S.Ct. at 1182 (internal citations omitted). Explaining that “the question” under the
first of these requirements “is whether the new rule remedied ‘an “‘impermissibly large risk’”’” of an
inaccurate conviction,” id. (citation omitted), the Court used Gideon v. Wainwright, 372 U.S. 335
(1963), as its yardstick and found that “[t]he Crawford rule is in no way comparable to the Gideon
rule” because Crawford is far less sweeping than Gideon, and in fact, “[i]t is . . . unclear whether
Crawford, on the whole, decreased or increased the number of unreliable out-of-court statements that may
be admitted in criminal trials.” Id. The Court went on to add that, in any event, “‘the question here is
not whether Crawford resulted in some net improvement in the accuracy of fact finding in criminal
cases. Rather, “the question is whether testimony admissible under Roberts is so much more
unreliable than that admissible under that the Crawford rule is ‘one without which the
likelihood of an accurate conviction is seriously diminished.’”’” 127 S.Ct. at 1183 (internal citations
omitted). “Crawford,” the Court answered, “did not effect a change of this magnitude.” Id.
The Court also found that Crawford “did not ‘alter our understanding of the bedrock procedural
elements essential to the fairness of a proceeding.’” Id. (citation omitted) (emphasis by the
Court). “[I]n order to meet this requirement,” the Court explained, “a new rule must itself constitute
a previously unrecognized bedrock procedural element that is essential to the fairness of a
proceeding.” 127 S.Ct. at 1183. Again citing Gideon as the paradigm, the Court declared that “Crawford,
while certainly important, is not in the same category as Gideon.” 127 S.Ct. at 1183-1184.
Lawrence v. Florida
127 S.Ct. 1079 (2007)
In this Florida capital case, the Court (Thomas, J., joined by Roberts, C.J., Scalia, Kennedy and Alito,
JJ.) held that an application for state post-conviction relief is not “still ‘pending’” within the meaning
of 28 U.S.C. §2244(d)(2) “when the state courts have entered a final judgment on the matter but a petition
for certiorari has been filed in this Court.” 127 S.Ct. at 1081. The Court explained its view of the
statutory language as follows:
Read naturally, the text of the statute must mean that the statute of limitations is tolled only while
state courts review the application. . . . This Court is not a part of a “State’s post-conviction
procedures.” State review ends when the state courts have finally resolved an application for state
postconviction relief. After the State’s highest court has issued its mandate or denied review, no other
state avenues for relief remain open. And an application for state postconviction review no longer exists.
All that remains is a separate certiorari petition pending before a federal court. The application for
state postconviction review is therefore not “pending” after the state court’s postconviction review is
complete, and §2244(d)(2) does not toll the 1-year limitations period during the pendency of a petition
for certiorari.
127 S.Ct. at 1083 (quoting Carey v. Saffold, 536 U.S. 214, 220 (2002)).
Having stated its view on the statute, the Court went on to add several further observations. First, the
Court noted that, “[i]f an application for state postconviction review were ‘pending’ during the pendency
of a certiorari petition in this Court, it is difficult to understand how a state prisoner could exhaust
state postconviction remedies without filing a petition for certiorari.” 127 S.Ct. at 1083. Second, the
Court rejected Lawrence’s contention that “pending” as used in §2244(d)(2) should be given the same
meaning as “final” under §2244(d)(1)(A). 127 S.Ct. at 1083. Additionally, the Court acknowledged that
§2263(b)(2) contains specific language limiting statutory tolling to the time an application for state
postconviction application remains pending in an opt-in case, and that this “differs from the language
of §2244(d)(2).” 127 S.Ct. at 1084. Nevertheless, the Court found it “clear that the language used in
both sections provides that tolling hinges on the pendency of state review,” and went on to suggest that,
given Congress’s clarity in §2263(b)(2), it went without saying that Congress intended the same meaning
for §2244(d)(2). 127 S.Ct. at 1084.
The Court next answered Lawrence’s concerns about the “awkward situations” prisoners would face if forced
to file federal habeas petitions while simultaneously seeking certiorari review in the Supreme Court,
noting as follows: first, this “awkwardness” obviously did not concern Congress when it created §2263,
and therefore “there is no reason for us to construe the statute to avoid it in §2244(d)(2),” 127 S.Ct.
at 1084; second, the Court does not grant many certiorari petitions in state post-conviction cases, which
makes the likelihood that district courts will duplicate the Supreme Court’s efforts “quite small,” and a
district court actually concerned with duplication can always stay a case until the Supreme Court has
disposed of it, 127 S.Ct. at 1084; and third, in the “extremely rare” case in which a prisoner prevails
in the state’s highest court and state authorities obtain a reversal in the Supreme Court, “equitable
tolling may be available[] in light of the arguably extraordinary circumstances and the prisoner’s
diligence,” 127 S.Ct. at 1085. The Court also added that “allowing the statute of limitations to be
tolled by certiorari petitions would provide incentives for state prisoners to file certiorari petitions
as a delay tactic.” 127 S.Ct. at 1085.
Finally, the Court turned to Lawrence’s request for equitable tolling. Emphasizing that it had “not
decided whether §2244(d) allows for equitable tolling,” and that it was merely assuming that it does
because the parties agree such tolling is available, the Court rejected each of Lawrence’s grounds. 127
S.Ct. at 1085. First, there was no “legal confusion” at the time Lawrence’s limitations period expired
since, at that time, every court of appeals that had addressed the issue had declined to extend tolling
through certiorari time. 127 S.Ct. at 1085. Second, Lawrence’s counsel’s mistake did not excuse his
untimely filing because “[a]ttorney miscalculation is simply not sufficient to warrant equitable
tolling.” 127 S.Ct. at 1085. This was true, the Court added, even though Florida appointed and purported
to supervise Lawrence’s state post-conviction lawyer. 127 S.Ct. at 1085-1086 (“But a State’s effort to
assist prisoners in postconviction proceedings does not make the State accountable for a prisoner’s delay.
Lawrence has not alleged that the State prevented him from hiring his own attorney or from representing
himself”). Finally, Lawrence’s unspecified “mental incapacity” was not supported by any “factual showing.
” 127 S.Ct. at 1086.
Based on these findings, the Court affirmed the lower courts’ dismissal of petitioner’s §2254 petition as
untimely.
Justice Ginsburg (joined by Stevens, Souter and Breyer, JJ.) dissented, contending, inter alia, that:
certiorari review of a state post-conviction relief action is necessarily a continuation of that state
proceeding; §2244(d)(1) and §2263(b)(2) support reading §2244(d)(2) to include certiorari time; the
exhaustion requirement is separate from, and would not be affected by, reading §2244(d)(2) as Lawrence
proposed; the Court’s reading of the statute will lead to unnecessary practical complications including
simultaneous filings and protective petitions; the Court’s concern about providing incentive to use
certiorari petitions as a “delay tactic has no basis in reality in the mine run of cases,” 127 S.Ct. at
1090; and, because prisoners can accomplish “the equivalent of tolling by filing a protective petition
in federal court and seeking a stay while a certiorari petition is pending, . . . today’s decision does
nothing to promote the finality of state-court determinations or the expeditious resolution of claims.
Rather, it imposes an unnecessary administrative burden on federal district judges who must determine
whether to grant a requested stay, and it sets a trap for those pro se litigants unaware of the need to
file duplicative petitions.” 127 S.Ct. at 1090.
Burton v. Stewart
127 S.Ct. 793 (2007) (per curiam)
The Court originally granted certiorari in this Washington rape, robbery and burglary case to consider
whether Blakely v. Washington, 542 U.S. 296 (2004), announced a new rule, and if so, whether it
applied retroactively. After briefing and argument, however, the Court concluded that, because the
petition in which the Blakely claim was raised was second or successive, and because petitioner
had not secured leave to file it from the court of appeals, the judgment below denying relief on the
merits was due to be vacated, and the petition dismissed for lack of jurisdiction.
Petitioner was originally convicted and sentenced in 1994. He was subsequently resentenced twice by the
state courts, with the latest resentencing occurring in 1998. While state court review of the last
resentencing proceeding was pending, petitioner sought federal habeas relief from his convictions, noting
on his petition that a state court challenge to his sentence was ongoing. Later, and after his initial
petition had been adjudicated by the federal courts, petitioner filed a second habeas petition, this time
challenging the constitutionality of the 1998 resentencing judgment. The lower federal courts determined
that this petition was not “second or successive” because petitioner had a “‘legitimate excuse for failing
to raise’ his sentencing challenges in the 1998 petition,” i.e., that they were unexhausted at the time
the petition was filed. 127 S.Ct. at 797. After assuming without decided “that the Ninth Circuit’s
‘legitimate excuse’ approach . . . is correct,” the Supreme Court concluded that the finding “that
Burton had a ‘legitimate excuse’ [in this case] is inconsistent with the” practices the Court has
prescribed. 127 S.Ct. at 797. The Court explained:
There is no basis in our cases for supposing, as the Ninth Circuit did, that a petitioner with
unexhausted claims . . . who elects to proceed to adjudication of his exhausted claims . . . may later
assert that a subsequent petition is not “second or successive” precisely because his new claims were
unexhausted at the time he filed his first petition. This reasoning conflicts with both [Rose v.]
Lundy and §2244(b) and would allow prisoners to file separate habeas petitions in the not uncommon
situation where a conviction is upheld but a sentence is reversed. Such a result would be inconsistent
with both the exhaustion requirement, with its purpose of reducing “piecemeal litigation,” and AEDPA,
with its goal of “streamlining federal habeas proceedings.”
127 S.Ct. at 797 (citations omitted).
After further rejecting petitioner’s efforts to analogize his case to Stewart v. Martinez- Villareal
and Slack v. McDanial, the Court addressed petitioner’s contention that, had he waited for the state
court litigation of his resentencing claims to conclude before bringing his first habeas petition, “he
risked losing the opportunity to challenge his conviction in federal court due to AEDPA’s 1-year statute
of limitations.” 127 S.Ct. at 798. Finding that this argument “misreads AEDPA,” the Court explained as
follows:
[The Act] states that the limitations period applicable to “a person in custody pursuant to the judgment
of a State court” shall run from, as relevant here, “the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for seeking such review.” §2244(d)(1)(A).
“Final judgment in a criminal case means sentence. The sentence is the judgment.”
Berman v. United States, 302 U.S. 211, 212 (1937). Accordingly, Burton’s limitations period did
not begin until both his conviction and sentence “became final by the conclusion of direct review or the
expiration of the time for seeking such review” – which occurred well after Burton filed his 1998 petition.
127 S.Ct. at 798-799.
Ayers v. Belmontes
127 S.Ct. 469 (2006)
In this California capital case in which an earlier Ninth Circuit decision granting relief had previously
been vacated with instructions to reconsider in light of Brown v. Payton, 544 U.S. 133 (2005), the
Court reversed the Ninth Circuit’s grant of relief on the ground that California’s “factor (k)” mitigation
instruction prevented jurors from considering forward-looking mitigating evidence.
Writing for the Court, Justice Kennedy (joined by Roberts, C.J., and Scalia, Thomas and Alito, JJ.)
began by noting that the Court had considered and rejected challenges to factor (k) twice before, first
in Boyde v. California, 494 U.S. 370 (1990), and more recently Payton, which involved a
claim that, like Belmontes’s, that factor (k) prevented the jury from giving effect to forward-looking
evidence. While the Ninth Circuit distinguished Payton on the basis that it was an AEDPA case
while Belmontes’s case was not, the Supreme Court found that the court of appeals was “mistaken . . to
find a ‘reasonable probability’ that the jury did not consider respondent’s future potential,” and that
the court of appeals “failed to heed the full import of Payton’s holding, a holding that has
significance even where AEDPA is inapplicable.” 127 S.Ct. at 475. After a discussion of the evidence,
arguments and jury instructions at Belmontes’s trial, the Court concluded as follows:
In this case, as in Boyde and as in Payton, the jury heard mitigating evidence, the trial
court directed the jury to consider all the evidence presented, and the parties addressed the mitigating
evidence in their closing arguments. This Court’s cases establish, as a general rule, that a jury in such
circumstances is not reasonably likely to believe itself barred from considering the defense’s evidence as
a factor “extenuat[ing] the gravity of the crime.” The factor (k) instruction is consistent with the
constitutional right to present mitigating evidence in capital sentencing proceedings.
127 S.Ct. at 480.
Justice Scalia (joined by Thomas, J.) concurred to note his adherence to the “view that limiting a jury’s
discretion to consider all mitigating evidence does not violate the Eighth Amendment.” 127 S.Ct. at 480.
Justice Stevens (joined by Souter, Ginsburg and Breyer, JJ.) dissented, noting that Belmontes’s 1982 death
sentence was imposed at a time when “significant residual confusion” existed as to scope of the evidence
juries were required to consider as mitigation. 127 S.Ct. at 481. Justice Stevens went on to contend that,
notwithstanding the Court’s reading of the instruction in Boyde, factor (k) would have been
understood by jurors as precluding consideration of forward-looking evidence, and that the record in this
case established that the jurors would have conducted their deliberations under the unconstitutional
impression that Belmontes’s future prospects in prison were not a proper consideration.
Carey v. Musladin
127 S.Ct. 649 (2006)
In this non-capital California murder case, the Supreme Court (Thomas, J., joined by Roberts,
C.J., Scalia, Ginsburg, Breyer and Alito, JJ.) reversed the Ninth Circuit’s grant of relief on
petitioner’s claim that the presence during trial of spectators wearing buttons depicting the victim
violated his Sixth and Fourteenth Amendment rights. Framing the issue as whether the state
court of appeal’s conclusion that the buttons worn by spectators did not “deny respondent his
right to a fair trial . . . was contrary to or an unreasonable application of clearly established
federal law as determined by this Court,” the Court held “that it was not.” 127 S.Ct. at 651. The
Court began by reiterating its statement in (Terry) Williams v. Taylor that “‘clearly established
Federal law’ in §2254(d)(1) ‘refers to the holdings, as opposed to the dicta, of this Court’s
decisions as of the time of the relevant state-court decision.’” 127 S.Ct. at 653. After
acknowledging that both respondent and the state court of appeal had looked to Estelle v.
Williams and Holbrook v. Flynn for the rule governing the claim, the Court found that neither
of these decisions clearly established a rule for the circumstances presented by this case. The Court
explained that “[b]oth Williams and Flynn dealt with government-sponsored practices,” and “in
both cases, this Court noted that some practices are so inherently prejudicial that they must be
justified by an ‘essential state’ policy or interest.” 127 S.Ct. at 653. Emphasizing that this case
involved not state-sponsored conduct, but spectator conduct, however, the Court found that it had
“never addressed a claim that such private-sector courtroom conduct was so inherently
prejudicial that it deprived a defendant of a fair trial.” 127 S.Ct. at 653; see also id. at 653-654
(“And although the Court articulated the test for inherent prejudice that applies to state conduct
in Williams and Flynn, we have never applied that test to spectators’ conduct. Indeed, part of the
legal test of Williams and Flynn – asking whether the practices furthered an essential state
interest – suggests that those cases apply only to state-sponsored practices”). The Court went on
to note that the “lack of guidance from this Court” on spectator conduct was reflected in the fact
that “lower courts have diverged widely on their treatment of defendants’ spectator-conduct
claims.” 127 S.Ct. at 654. “Given the lack of holdings from this Court regarding the potentially
prejudicial effect of spectators’ courtroom conduct of the kind involved here,” the Court
concluded, “it cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established
Federal law.’ §2254(d)(1). No holding of this Court required the California Court of Appeal to
apply the test of Williams and Flynn to the spectators’ conduct here. Therefore, the state court’s
decision was not contrary to or an unreasonable application of clearly established federal law.”
127 S.Ct. at 654.
Justice Stevens concurred in the judgment, but wrote separately to point out that Justice
O’Connor’s statement in Williams that “clearly established Federal law” “refers to the holdings,
as opposed to the dicta, of this Court’s decisions” was itself “dictum,” and to contend that this
dictum “represents an incorrect interpretation of [§2254(d)(1)’s] text . . .” 127 S.Ct. at 655.
Justice Stevens went on to explain that “[v]irtually every one of the Court’s opinions announcing
a new application of a constitutional principle contains some explanatory language that is
intended to provide guidance to lawyers and judges in future cases,” and that “[i]t is quite wrong
to invite state court judges to discount the importance of such guidance on the ground that it may
not have been strictly necessary as an explanation of the Court’s specific holding
in the case.”
127 S.Ct. at 655.
Justice Kennedy concurred in the judgment, but wrote separately to explain that the Court’s past
decisions do establish that a new trial is required “when a defendant shows his conviction has
been obtained in a trial tainted by an atmosphere of coercion or intimidation similar to that
documented in the [Court’s cases],” and that, if spectator buttons gave rise to such intimidation
in a particular case, habeas relief “would likely be available even in the absence of a Supreme
Court case addressing the wearing of buttons.” 127 S.Ct. at 656; see also id. (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) (plurality opinion)) (“While general rules
tend to accord courts ‘more leeway . . . in reaching outcomes in case-by-case determinations,’
AEDPA does not require state and federal courts to wait for some nearly identical factual pattern
before a legal rule must be applied”). Justice Kennedy went on to explain that in this case “there
is no indication the atmosphere at respondent’s trial was one of coercion or intimidation to the
severe extent demonstrated in the cases” the Court has previously decided, nor did this case
“present the issue whether as a preventative measure, or as a general rule to preserve the calm
and dignity of a court, buttons proclaiming a message relevant to the case ought to be prohibited
as a matter of course.” 127 S.Ct. at 657. “In all events,” Justice Kennedy concluded, “the case
as presented to us here does call for a new rule, perhaps justified as much as a preventative measure
as by the urgent needs of the situation[] [which] should be explored in the court system, and then
established in this Court before it can be grounds for relief in the procedural posture of this case.”
127 S.Ct. at 657.
Uttecht v. Brown
127 S.Ct.2218 (2007)
In this Washington capital case, the Supreme Court (5 to 4) reversed the Ninth Circuit’s decision
granting relief on respondent’s Witherspoon v. Illinois challenge to the trial court’s removal of a
prospective juror for cause. The Court (Kennedy, J., joined by Roberts, C.J., and Scalia, Thomas
and Alito, JJ.) began by reviewing its existing death qualification jurisprudence, which “establish
at least four principles of relevance here:
First, a criminal defendant has the right to an impartial jury drawn
from a venire that has not been tilted in favor of capital punishment
by selective prosecutorial challenges for cause. Second, the State
has a strong interest in having jurors who are able to apply capital
punishment within the framework state law prescribes. Third, to
balance these interests, a juror who is substantially impaired in his
or her ability to impose the death penalty under the state-law
framework can be excused for cause; but if the juror is not
substantially impaired, removal for cause is impermissible. Fourth,
in determining whether the removal of a potential juror would
vindicate the State’s interest without violating the defendant’s
right, the trial court makes a judgment based in part on the
demeanor of the juror, a judgment owed deference by reviewing
courts. Deference to the trial court is appropriate because it is in a
position to assess the demeanor of the venire, and of the
individuals who compose it, a factor of critical importance in
assessing the attitude and qualifications of potential jurors.
127 S.Ct. 2224 (internal citations omitted).
Examining respondent’s claim in light of these principles, the Court initially noted both that the
voir dire record as a whole indicated that the trial judge had presided evenhandedly over the jury
selection process, and that all prospective jurors had been provided with basic information about
how a sentencing phase would proceed before individual voir dire was conducted. The Court
then described the voir dire of the juror at issue – Juror Z – and observed that, notwithstanding
the instructions he had received, the juror maintained “serious misunderstandings about his
responsibility as a juror and an attitude toward capital punishment that could have prevented him
from returning a death sentence under the facts of this case.” Id., at 2226. More specifically, the
Court emphasized that while Juror Z had “no general opposition to the death penalty or scruples
against its infliction,” (id.), at his voir dire responses expressed less certainty where – as was the
case under Washington law – an opportunity for recidivism was foreclosed by the existence of
life without parole as the only alternative to a death sentence. The Court also noted that after the
prosecution lodged its challenge to Juror Z for cause, defense counsel stated, “We have no
objection.”
Turning to the Ninth Circuit’s decision granting relief “years after the conclusion of the voir
dire,” (id., at 2227) the Court rejected the court of appeals’ determinations that the state court’s
decision was contrary to and involved an unreasonable application of federal law. As to the
former, the Court criticized the Ninth Circuit’s conclusion that the state court’s failure to make a
finding that Juror Z was “substantially impaired” amounted to an application of the wrong legal
standard. The Court explained that “[t]his is an erroneous summary of the State Supreme Court’s
opinion. The state court did make an explicit ruling that Juror Z was impaired.” Id., at 2228.
After identifying the location of that finding in the state court’s opinion, the Court went on to add
that, “[r]egardless, there is no requirement in a case involving the Witherspoon-Witt rule that a
state appellate court make particular reference to the excusal of each juror. It is the trial court’s
ruling that counts.” Id. (citing Early v. Packer, 537 U. S. 3, 9 (2002) (per curiam)).
As to the state court’s application of the Witherspoon-Witt standard, the Court found that the trial
court had been “well within its discretion in granting the State’s motion to excuse Juror Z.” Id.
The Court explained that the trial court could have found “substantial impairment” merely from
the juror’s emphasis on future dangerousness, which would be negated by the LWOP alternative
to a death sentence. The Court also added the following:
[T]he trial court . . . is entitled to deference because it had an
opportunity to observe the demeanor of Juror Z. We do not know
anything about his demeanor, in part because a transcript cannot
fully reflect that information but also because the defense did not
object to Juror Z’s removal. Nevertheless, the State’s challenge,
Brown’s waiver of an objection, and the trial court’s excusal of
Juror Z support the conclusion that the interested parties present in
the courtroom all felt that removing Juror Z was appropriate under
the Witherspoon-Witt rule. . . . ¶ Juror Z’s assurances that he
would consider imposing the death penalty and would follow the
law do not overcome the reasonable inference from his other
statements that in fact he would be substantially impaired in this
case because there was no possibility of release. His assurances
did not require the trial court to deny the State’s motion to excuse
Juror Z.
Id., at 2229. The Court also emphasized that while the defense’s failure to object did not operate
as a default under state law, the fact that defense counsel “offered no defense of Juror Z” (id.)
warranted consideration. This was so, the Court later explained, “because of frequent defense
objections to the excusal of other jurors and the trial court’s request that if both parties wanted a
juror removed, saying so would expedite the process.” Id., at 2230. “In that context,” the Court
concluded, defense counsel’s “no objection” comment “was not only a failure to object but also
an invitation to remove Juror Z.” Id.
Before concluding that neither the trial nor state supreme courts’ decisions were contrary to or
involved an unreasonable application of federal law, the court observed as follows:
The need to defer to the trial court’s ability to perceive jurors’
demeanor does not foreclose the possibility that a reviewing court
may reverse the trial court’s decision where the record discloses no
basis for a finding of substantial impairment. But where, as here,
there is lengthy questioning of a prospective juror and the trial
court has supervised a diligent and thoughtful voir dire, the trial
court has broad discretion.
Id.
Justice Stevens (joined by Souter, Ginsburg and Breyer, JJ.) dissented, contending that the
Court’s decision constituted an erosion of the “strict rule” authorizing removal of a prospective
juror only for “substantial impairment.” Among other criticisms, Justice Stevens asserted as
follows:
[T]the perverse result of [the Court’s] opinion is that a juror who is
clearly willing to impose the death penalty, but considers the
severity of that decision carefully enough to recognize that there
are certain circumstances under which it is not appropriate (e.g.,
that it would only be appropriate in “severe situations,” App. 63),
is “substantially impaired.” It is difficult to imagine, under such a
standard, a juror who would not be considered so impaired, unless
he delivered only perfectly unequivocal answers during the
unfamiliar and often confusing legal process of voir dire and was
willing to state without hesitation that he would be able to vote for
a death sentence under any imaginable circumstance.
Id., at 2243 (Stevens, J., dissenting.)
Justice Breyer (joined by Souter, J.) also dissented to emphasize that defense counsel’s “no
objection” remark after Juror Z’s voir dire was “without significant legal effect” under state law,
and should therefore “play no role in [the Court’s] analysis.”