Recent Decisions
Burton v. Stewart
___S.Ct.___, 2007 WL 43832 (Jan. 9, 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. 2007 WL 43832 at *3. 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. 2007 WL 43832 at *4. 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.”
2007 WL 43832 at *4 (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.”
2007 WL 43832 at *5. 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.
2007 WL 43832 at *5.
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.
Lawrence v. Florida
549 U.S. ___, 127 S.Ct. 1079 (2007)
On February 20, 2007, the Supreme Court issued its ruling in Lawrence v. Florida. The majority
opinion was authored by Justice Thomas, and joined by the Chief Justice, as well as Justices
Kennedy, Scalia and Alito. The majority held that there was no statutory tolling of the AEDPA
Chapter 153 limitations period during the time when Lawrence sought certiorari review of the
state courts’ denial of post-conviction relief. Nor was Lawrence entitled to equitable tolling,
assuming such tolling is permissible.
Gary Lawrence was sentenced to death in Florida. The judgment became final on January 20, 1998,
when the Supreme Court denied a petition for writ of certiorari concerning the direct
appeal. 364 days later, his state post-conviction attorney filed a petition for post-conviction
relief, thereby tolling the federal limitation period which had one day remaining. State post-
conviction proceedings in Florida courts concluded on November 18, 2002. Counsel for
Lawrence then filed a certiorari petition in the Supreme Court. Before it was denied, he filed a
federal habeas petition. The federal petition was timely only if the state post-conviction
proceedings were still “pending” during the certiorari process, or if Lawrence was entitled to
equitable tolling.
The majority first held that an application for state post-conviction relief is no longer “pending”
after the post-conviction review is completed in state court and so § 2244(d)(2) does not toll the
one-year limitation period during the pendency of a petition for writ of certiorari in the Supreme
Court.
In a footnote, the majority addressed Lawrence’s contention that a substantial delay in the
appointment of state post-conviction counsel, as well as other issues outside of his control, ate up
much of the one-year limitation period. The majority found these facts to be of little relevance
given that Lawrence failed to seek certiorari on the question of whether such facts entitled
Lawrence to equitable tolling. Further, the majority pointed out that Lawrence had been able to
file his state post-conviction petition within the one-year state limitation period despite the
problems. Finally, the majority pointed out that Lawrence’s argument to the Court was that
attorney error was the reason the federal limitation period was missed, not that he was denied
sufficient time to prepare the petition.
Turning to the other grounds for tolling raised by Lawrence, the majority assumed without
deciding that equitable tolling is available to habeas petitioners such as Lawrence. To be entitled
to equitable tolling, Lawrence was required to show: (1) that he was pursuing his rights
diligently; and (2) that some extraordinary circumstance prevented him from timely filing his
federal habeas petition. Lawrence’s first argument for equitable tolling – uncertainty in the law –
failed because at the relevant time the Eleventh Circuit, as well as every other circuit to have
addressed the issue, had ruled that certiorari petitions off of state post-conviction proceedings do
not toll the limitation period. The second ground raised by Lawrence – simple attorney error –
was found insufficient to warrant equitable tolling. The fact that Florida appointed and
supervised post-conviction counsel did not make any difference to the majority, which
explained: “[A] State’s effort to assist prisoners in postconviction proceedings does not make the
State accountable for a prisoner’s delay.” In reaching this conclusion, the majority noted that
Lawrence had “not alleged that the State prevented him from hiring his own attorney or from
representing himself.” As for Lawrence’s assertion that his mental incapacity justified his
reliance on appointed counsel, and, therefore, equitable tolling, the majority did not decide
whether incapacity could in some instances support equitable tolling. Instead, the majority found
equitable tolling unavailable because Lawrence failed to make a factual showing of incapacity.
Justice Ginsburg, joined by Justices Stevens, Souter and Breyer, dissented. Ginsburg interpreted
the relevant statute as providing for tolling if a petitioner seeks certiorari review related to state
post-conviction proceedings. Because not presented in this case, Ginsburg did not address
whether the statute should also be construed to provide for tolling during the time a certiorari
petition could be filed even if no such petition was filed. Ginsburg also did not discuss equitable
tolling.
Whorton v. Bockting
549 U.S. ___, 127 S.Ct. 1173 (2007)
On February 28, 2007, the Supreme Court issued its decision in Whorton v. Bockting, a non-
capital habeas case from Nevada. Justice Alito wrote for the unanimous Court, ruling that
Crawford v. Washington, 541 U.S. 36 (2004) announced a new rule under Teague v. Lane, 489
U.S. 288 (1989), and that the rule failed to meet the Teague exception for watershed rules of
criminal procedure that implicate the fundamental fairness and accuracy of the criminal
proceeding. Therefore, because Bockting’s conviction was final on direct review before the
Crawford decision, he could not receive the benefit of the rule in federal habeas proceedings.
In discussing why Crawford did not meet the Teague exception, the Court noted, among other
things, that it was unclear whether Crawford actually improved accuracy given Crawford’s
“elimination of Confrontation Clause protection against the admission of unreliable out-of-court
nontestimonial statements.”
Ayers v. Belmontes
549 U.S. ___, 127 S.Ct. 469 (2006)
The Supreme Court issued its decision in Ayers v. Belmontes on Monday, November 13, 2006.
The High Court ruled 5-4 that there was no reasonable likelihood that jurors interpreted an
instruction given at the sentencing phase of Belmontes’s capital trial as precluding consideration
of forward-looking mitigation evidence concerning Belmontes’s ability to positively contribute to
society if given a life sentence. Justice Kennedy wrote the opinion for the majority, joined by
the Chief Justice and Justices Scalia, Thomas, and Alito. Justice Scalia, joined by Justice Thomas,
wrote a concurring opinion. Justice Stevens, joined by Justices Souter, Ginsburg and Breyer,
dissented.
In his case for life, Belmontes presented evidence of his past positive activities when in custody
as a juvenile, as well as predictions of continued good acts if given a life sentence. The
instructions directed the jury to a number of specific factors to consider in making the sentencing
decision. The final factor, factor (k), told the jury it was to consider “[a]ny other circumstance
which extenuates the gravity of the crime even though it is not a legal excuse for the crime.” The
Ninth Circuit (2-1), agreed with Belmontes’s contention that there was a reasonable likelihood
that jurors would have interpreted this instruction as precluding consideration of his mitigating
evidence about positive adjustment to incarceration. The Supreme Court initially granted the
warden’s certiorari petition and remanded the case for reconsideration in light of Brown v.
Payton, 544 U.S. 133 (2005), which involved a challenge to the same instruction. On remand, the
Ninth Circuit, again 2-1, continued to find Belmontes entitled to habeas relief. Payton was
distinguished by the court of appeals on the ground that Payton´s habeas petition was governed
by AEDPA and Belmontes’s petition was not. The Supreme Court again granted certiorari
review.
The majority found that the Ninth Circuit “erred by adopting a narrow and . . . unrealistic
interpretation of factor (k).” In the Ninth Circuit’s view, the most natural reading of the
instruction would limit the jury to consideration of evidence that bore on the commission of the
capital offense. Both Payton and an earlier decision upholding the instruction, Boyde v.
California, 494 U.S. 370 (1990), showed that this interpretation “was too confined.” Just as pre-
crime background and character evidence (Boyde) falls under factor (k) as possibly excusing the
crime, as does post-crime rehabilitation (Payton), so too does a likelihood of future good conduct
fall within factor (k) because it can make a person less deserving of the death penalty. The
majority went on to explain how its interpretation of factor (k) was the one “most consistent with
the evidence presented to the jury, the parties’ closing arguments, and the other instructions
provided by the trial court.” As for questions by the jurors, which the Ninth Circuit construed to
show confusion about the permissible scope of mitigation, the majority concluded the lower
court’s analysis was flawed.
Justice Scalia’s concurrence reiterated his belief that the Eighth Amendment does not prohibit
limitations on the sentencer’s discretion to consider all mitigating evidence. He also observed
that even accepting the Court’s contrary jurisprudence, this was an “easy case” in light of
Johnson v. Texas, 509 U.S. 350, 372 (1993), where the Court held that a jury need not be able to
give effect to mitigating evidence in every conceivable manner in which the evidence might be
relevant. But because the warden did not rely on Johnson, as did the dissenting judge on the
Ninth Circuit panel, Justice Scalia was content to join in what he deemed the majority’s proper
application of Boyde.
Justice Stevens dissented. In his reading of the record, there was ample reason to believe the jury
was at the very least confused about whether it could consider evidence of Belmontes’s capacity
for redemption in deciding his sentence. In Justice Stevens’s view, “[t]hat confusion has created
a risk of error sufficient to warrant relief for a man who has spent more than half his life on death
row.”
Abdul-Kabir v. Quarterman
___S.Ct.___, 2007 WL 1201582 (April 25, 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: (1) testimony from two
relatives describing his history of neglect and abandonment; and (2) 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.” [page numbers not yet
available]. 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. 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.’” (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.” 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.”
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.’” 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.’” (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.” 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”; (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”; 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.” “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.”
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,” 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.
(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, ___S.Ct.___, 2007 WL
1201609 (April 25, 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
ever-changing analyses,” such that there was no clearly established federal law to which the state
courts could properly be held under §2254(d)(1).
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.” 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.”
Brewer v. Quarterman
___S.Ct.___, 2007 WL 1201609 (April 25, 2007)
In this companion case to Abdul-Kabir v. Quarterman, ___S.Ct.___, 2007 WL 1201582
(April 25, 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.” Referencing the more extended discussion set forth in
Abdul-Kabir, the Court observed that it has “repeatedly emphasized that a 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).” (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. 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.” 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.” 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.’” 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.’” “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)). 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.”
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.), mirrored their views in Abdul-
Kabir. Chief Justice Roberts could not find from the Supreme Court’s jurisprudence at the time of the
state court’s decisions the “clearly established law” identified by the majority. According to the Chief
Justice, “Whatever the law may be today, the Court’s ruling that ‘twas always so – and that state
courts were ‘objectively unreasonable’ not to know it – is utterly revisionist.” (Internal citation
omitted.)
Justice Scalia began by repeating his view that limiting a jury’s discretion to consider all
mitigating evidence does not violate the Eighth Amendment, a view long agreed to by Justice
Thomas. Justice Scalia went on to argue in Part I, joined by Justices Thomas and Alito, 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.” In section II of Justice Scalia’s dissent, (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.”
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.”