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On January 14, 2022, the Supreme Court granted review in two cases of note to capital habeas petitioners.  In Shoop v. Twyford, 21-511, the questions presented are:

(1) 28 U.S.C. §2241(c) allows federal courts to issue a writ of habeas corpus ordering the transportation of a state prisoner only when necessary to bring the inmate into court to testify or for trial. It forbids courts from using the writ of habeas corpus to order a state prisoner’s transportation for any other reason. May federal courts evade this prohibition by using the All Writs Act to order the transportation of state prisoners for reasons not enumerated in §2241(c)? (2) Before a court grants an order allowing a habeas petitioner to develop new evidence, must it determine whether the evidence could aid the petitioner in proving his entitlement to habeas relief, and whether the evidence may permissibly be considered by a habeas court?

The case below is 11 F.4th 518 (6th Cir. 2021)Click here to view the warden's certiorari petition.

In Nance v. Ward, 21-439, the questions presented are:

     (1) Whether an inmate’s as-applied method-of-execution challenge must be raised in a habeas petition instead of through a § 1983 action if the inmate pleads an alternative method of execution not currently authorized by state law.  (2) Whether, if such a challenge must be raised in habeas, it constitutes a successive petition where the challenge would not have been ripe at the time of the inmate’s first habeas petition.

The case below is 981 F.3d 1201 (11th Cir. 2020)Click here to view the commissioner's certiorari petition.

On January 10, 2022, the Supreme Court granted a certiorari petition in a non-capital drug and firearm case, Kemp v. United States, 21-5726, on the following:

     Federal Rule of Civil Procedure 60(b)(1) authorizes relief from final judgment based on “mistake,” as well as inadvertence, surprise, or excusable neglect.

     The question presented is:

          Whether Rule 60(b)(1) authorizes relief based on a district court’s error of law.

The case below is Kemp v. United States, 857 Fed. Appx 573 (11th Cir. 2021).

On September 8, 2021, the Supreme Court granted John Ramirez's application for stay of execution and his petition for writ of certiorari, which presents the following questions:  (1) Under the Free Exercise Clause and Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc–2000cc– 5 (2000), does the State’s decision to allow Ramirez’s pastor to enter the execution chamber, but forbidding the pastor from laying his hands on his parishioner as he dies, substantially burden the exercise of his religion, so as to require the State to justify the deprivation as the least restrictive means of advancing a compelling governmental interest? (2) Under the Free Exercise Clause and Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc–2000cc– 5 (2000), does the State’s decision to allow Ramirez’s pastor to enter the execution chamber, but forbidding the pastor from singing prayers, saying prayers or scripture, or whispering prayers or scripture, substantially burden the exercise of his religion, so as to require the State to justify the deprivation as the least restrictive means of advancing a compelling governmental interest?

The Clerk was directed to establish a briefing schedule that will allow the case to be argued in October or November 2021.

The Supreme Court decided today that the rule of Ramos v. Louisiana, 590 U.S. ___ (2020)--that a state jury must be unanimous to convict a criminal defendant of a serious offense--is a new rule of criminal procedure and, as such, it does not apply retroactively to cases on federal collateral review.  Edwards v. Vannoy, 593 U.S.

On May 17, 2021, the Supreme Court granted the certiorari petition of the Arizona Director of the Department of Corrections, Rehabilitation and Reentry in Shinn v. Ramirez, 20-1009.  The case below is Ramirez v. Ryan, 937 F.3d 1230 (9th Cir. 2019).

The question presented is:

     The Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254(e)(2), precludes a federal court from considering evidence outside the statecourt record when reviewing the merits of a claim for habeas relief if a prisoner or his attorney has failed to diligently develop the claim’s factual basis in state court, subject to only two statutory exceptions not applicable here. In the cases below, the Ninth Circuit concluded that AEDPA’s bar on evidentiary development does not apply to a federal court’s merits review of a claim when a court excuses that claim’s procedural default under Martinez v. Ryan, 566 U.S. 1 (2012), because the default was caused by post-conviction counsel’s negligence. The question presented, which drew an eight-judge dissent from the denial of en banc rehearing in each case, is:

     Does application of the equitable rule this Court announced in Martinez v. Ryan render 28 U.S.C. § 2254(e)(2) inapplicable to a federal court’s merits review of a claim for habeas relief?

The Supreme Court issued its decision in Jones v. Mississippi, 593 U.S. ___ (April 22, 2021), ruling that its precedent does not require a sentencer to make a finding of permanent incorrigibility before sentencing an individual who committed a homicide when he or she was under 18 to a sentence of life without parole.  Although the Court adhered to its holding in Montgomery v. Louisiana, 577 U. S. 190 (2016) that its decision in Miller v. Alabama, 567 U. S.

Today, the Supreme Court granted a certiorari petition in a non-capital habeas case from the Sixth Circuit Court of Appeals, Brown v. Davenport, 20-826.  The question presented is:

On March 29, 2021, the Supeme Court issued a per curiam decision reversing a grant of habeas relief by the Sixth Circuit Court of Appeals in a Tennessee death penalty case on a claim that trial counsel had been ineffective at the guilt and sentencing phases of the trial by failing to suggest that the man who discovered the victim’s body was the actual killer.  Mays v. Hines, 592 U.S.

Governor Ralph Northam today signed legislation abolishing the death penalty, making Virginia the 23rd state, and the first in South, to stop executions.  Governor Northam signed the death penalty repeal into law during a ceremony outside the Greensville Correctional Center in Jarratt, Virginia. Prior to the bill signing, he toured the facility’s execution chamber, where 102 people have been executed since its opening in 1991.

The Supreme Court granted the government's certiorari petition in United States v. Tsarnaev, 20-443.  The petition presents the following questions:

1. Whether the court of appeals erred in concluding that respondent’s capital sentences must be vacated on the ground that the district court, during its 21-day voir dire, did not ask each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard, or seen about respondent’s case. 2. Whether the district court committed reversible error at the penalty phase of respondent’s trial by excluding evidence that respondent’s older brother was allegedly involved in different crimes two years before the offenses for which respondent was convicted.

The First Circuit Court of Appeals opinion under review is United States v. Tsarnaev, 968 F.3d 24 (1st Cir. 2020)

The Supreme Court denied the certiorari petition of Texas death row inmate Charles Victor Thompson, 20-5951.  The questions presented were: