In Jenkins v. Hutton, 582 U.S. ___ (June 19, 2017) (per curiam), the Supreme Court reversed a grant of sentencing phase relief where the Sixth Circuit erred in reaching the merits of Ohio death row inmate’s defaulted claim that his due process rights were violated because the trial court failed to instruct the jury that, when weighing aggravating and mitigating factors, the jury was limited to the two aggravating factors it found at the guilt phase of the trial. The first reason the Sixth Circuit gave for excusing the default was that the jury had not found the existence of aggravating circumstances. In fact, at the guilt phase the jury had found: (1) defendant engaged in a course of conduct designed to kill multiple people; and (2) defendant committed the murder in the course of kidnaping. The second reason given by the Sixth Circuit for excusing the default rested on a legal error in applying the miscarriage of justice test of Sawyer v. Whitley, 505 U.S. 333 (1992). The Court assumes, without deciding, that the alleged instructional omission can provide a basis for excusing default. The appeals court concluded that the allegedly improper weighing instruction could have allowed the jury to rely on invalid aggravating circumstances when it recommended a death sentence. The correct inquiry under Sawyer, however, assuming instructional error occurred, was “[w]hether, given proper instructions about the two aggravating circumstances, a reasonable jury could have decided that those aggravating circumstances outweighed the mitigating circumstances.”
Neither Hutton nor the Sixth Circuit has “show[n] by clear and convincing evidence that” - if properly instructed - “no reasonable juror would have” concluded that the aggravating circumstances in Hutton’s case outweigh the mitigating circumstances. Sawyer, 505 U.S., at 336. In fact, the trial court, Ohio Court of Appeals, and Ohio Supreme Court each independently weighed these factors and concluded that the death penalty was justified. On the facts of this case, the Sixth Circuit was wrong to hold that it could review Hutton’s claim under the miscarriage of justice exception to procedural default.