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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 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. ___ (May 17, 2021).  The "watershed" rule exception to retroactivity of new procedural rules discussed in Teague has never been found to apply and is expressly eliminated.    

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. 460 (2012) is retroactive, it stated that "to the extent that Montgomery’s application of the Teague standard is in tension with the Court’s retroactivity precedents that both pre-date and post-date Montgomery, those retroactivity precedents—and not Montgomery—must guide the determination of whether rules other than Miller are substantive."

On April 19, 2021, the Supreme Court denied the certiorari petition of Frederick R. Whatley, a Georgia death row inmate.  The petition (20-363) had raised the following issue:

     A defendant asserting a claim for ineffective assistance of counsel must show that counsel’s “deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). This Court has also held that it is “inherently prejudicial” for a defendant to appear before a jury in shackles. Holbrook v. Flynn, 475 U.S. 560, 568 (1986).

     The circuits are split on the interaction of these bodies of law where a person in state custody brings a habeas petition asserting ineffective assistance because defense counsel failed to object to visible shackling at trial. The Seventh Circuit holds that a state court unreasonably applies federal law, under 28 U.S.C. § 2254(d), if the court fails to account for the inherently prejudicial effect of shackling. By contrast, the Ninth and Eleventh Circuits hold that a state court need not account for this Court’s shackling cases when assessing Strickland prejudice. That holding led the Eleventh Circuit here to deny a habeas petition by a death row inmate who was forced, at sentencing, to reenact his crime while visibly shackled before the jury, with the prosecutor playing the victim.

     The question presented is: Does a state court unreasonably apply federal law when, in determining whether a person suffered prejudice as a result of ineffective assistance of counsel, it disregards this Court’s case law recognizing that shackling is inherently prejudicial?

Justice Sotomayor issued an opinion dissenting from the denial of certiorari.  Because "[d]efense counsel’s unreasonable failure to object to Whatley’s shackling was plainly prejudicial under this Court’s precedent," Justice Sotomayor would "grant the petition, summarily reverse, and remand for a new sentencing proceeding."   

Also on April 19, 2021, the Supreme Court granted the certiorari petition in Hemphill v. New York, 20-637, which raises the following question:

     A litigant’s argumentation or introduction of evidence at trial is often deemed to “open the door” to the admission of responsive evidence that would otherwise be barred by the rules of evidence.

     The question presented is: Whether, or under what circumstances, a criminal defendant who opens the door to responsive evidence also forfeits his right to exclude evidence otherwise barred by the Confrontation Clause

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:

     In Brecht v. Abrahamson, 507 U.S. 619 (1993), the Court held that the test for determining whether a constitutional error was harmless on habeas review is whether the defendant suffered “actual prejudice.” Congress later enacted 28 U.S.C. § 2254(d)(1), which prohibits habeas relief on a claim that was adjudicated on the merits by a state court unless the adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law.” Although the Court has held that the Brecht test “subsumes” § 2254(d)(1)’s requirements, the Court declared in Davis v. Ayala, 576 U.S. 257, 267 (2015), that those requirements are still a “precondition” for relief and that a state-court harmlessness determination under Chapman v. California, 386 U.S. 18 (1967), still retains “significance” under the Brecht test. The question presented is:

     May a federal habeas court grant relief based solely on its conclusion that the Brecht test is satisfied, as the Sixth Circuit held, or must the court also find that the state court’s Chapman application was unreasonable under § 2254(d)(1), as the Second, Third, Seventh, Ninth, and Tenth Circuits have held?

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. ___ (March 29, 2021) (per curiam).  The victim worked at a motel where petitioner had rented a room.  Her body was found stabbed to death by a regular patron of the motel.  In state post-conviction proceedings, the patron’s account for his presence at the motel was shown to have been false.  While he claimed at trial to have simply stopped by to visit the motel owners and fortuitously found the victim when he entered a room to use the bathroom, in fact he was there for a regular tryst with a woman who was not his wife.  Although defense counsel was aware of the affair at the time of trial, defense counsel decided to forgo eliciting the embarrassing information.  In granting relief, the Sixth Circuit failed to “carefully consider all the reasons and evidence supporting the state court’s decision” that petitioner had failed to establish prejudice.  Instead of evaluating the substantial evidence linking petitioner to the crime, e.g., his “flight [from the motel] in a bloodstained shirt, his theft of the [victim’s] vehicle and money, and his ever-changing stories about stabbing and robbing various people on the day of the crime,” the court of appeals focused on all the reasons why it thought the third party “could have” been a viable alternative suspect.   “This approach plainly violated Congress’ prohibition on disturbing state-court judgments on federal habeas review absent an error that lies ‘beyond any possibility for fairminded disagreement.’” (Citations omitted.)

Also on March 29, 2021, the Supreme Court in Johnson v. Precythe, 20-287, directed the parties to file supplemental letter briefs addressing the following question: "Given that the District Court dismissed without prejudice, would petitioner be barred from filing a new complaint that proposes the firing squad as the alternative method of execution?" The certiorari petition was filed on August 28, 2020, and raises the following questions:

     In Bucklew v. Precythe, 139 S. Ct. 1112 (2019), this Court held, at the summary judgment stage and on the record in that case, that the State had a legitimate penological justification for rejecting the inmate’s proffered alternative method of execution because that method had not previously been used to perform an execution, and the inmate had presented no evidence that the method had been studied or could be carried out.

     The questions presented are:

     1. Whether Bucklew established a categorical rule that a State may obtain dismissal of an Eighth Amendment method-of-execution claim by proffering a reason for rejecting the plaintiff’s opposed alternative method of execution that is legitimate in the abstract, regardless of whether the plaintiff has plausibly alleged that the State’s proffered reason is not legitimate or sufficient on the facts of the case.

     2. In the alternative, whether the court of appeals’ refusal to permit petitioner, after this Court’s decision in Bucklew was issued, to amend his complaint to propose a previously-used alternative method of execution warrants summary reversal. 

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 most recent execution in Virginia was carried out in 2017.  The legislation converts the sentences of the two individuals currently on death row in Virginia to life in prison without parole.

“Over our 400-year history, Virginia has executed more people than any other state,” said Governor Northam. “The death penalty system is fundamentally flawed—it is inequitable, ineffective, and it has no place in this Commonwealth or this country. Virginia has come within days of executing innocent people, and Black defendants have been disproportionately sentenced to death. Abolishing this inhumane practice is the moral thing to do. This is a truly historic day for Virginia, and I am deeply grateful to those who have fought tirelessly and for generations to put an end to capital punishment in our Commonwealth.”

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:

<p>
   On September 30, 2020, California Governor Newsom signed into law AB-2512 which amends&nbsp;California's statute (Cal. Penal Code section 1376) related to the prohibition on executing the intellectually disabled.&nbsp; The amendments alter the definition of intellectual disability, changing the third prong age of on-set requirement from "before 18 years of age" to "the end of the developmental period, as defined by clinical standards."&nbsp; A defendant or death row inmate is entitled to a determination of a claim of exemption from the death penalty due to intellectual disability upon a showing of a prima facie case.&nbsp; As&nbsp;defined in the amended statute, "'Prima facie showing of intellectual disability'&nbsp;means that the defendant’s allegation of intellectual disability is based on the type of evidence typically relied on by a qualified expert in diagnosing intellectual disability, as defined in current clinical standards, or when a qualified expert provides a declaration diagnosing the defendant as intellectually disabled."&nbsp; If an evidentiary hearing is held concerning a death row inmate's claim of intellectual disability, the statute now provides that "an expert may testify about the contents of out-of-court statements, including documentary evidence and statements from witnesses when those types of statements are accepted by the medical community as relevant to a diagnosis of intellectual disability if the expert relied upon these statements as the basis for their opinion."&nbsp;&nbsp;&nbsp;Under new subsection (g) of the statute, "The results of a test measuring intellectual functioning shall not be changed or adjusted based on race, ethnicity, national origin, or socioeconomic status."&nbsp;&nbsp;
</p>

On August 24, 2020, the Ninth Circuit Court of Appeals denied the petitions for rehearing en banc filed by the Director of the Arizona Department of Correction in the cases of Jones v. Shinn, 943 F.3d 1211 (9th Cir. 2019) and Ramirez v. Ryan, 937 F.3d 1230 (9th Cir. 2019).  In the Jones case, a three-judge panel of the Ninth Circuit affirmed a grant of habeas relief on a claim of ineffective assistance of counsel at the guilt-innocence phase of the trial.  Although that claim was procedurally defaulted, the ineffective assistance by state post-conviction counsel was found to have provided cause for excusing the default.  The evidence that was presented to demonstrate post-conviction counsel's ineffectiveness was also considered as to the merits of the trial ineffective assistance claim.  In the Ramirez case, a three-judge panel of the Ninth Circuit ruled that state post-conviction counsel's ineffectiveness provided cause to excuse the procedural default of a claim of ineffective assistance by trial counsel at sentencing.  It further found that the district court had erred in denying Ramirez evidentiarydevelopment of his ineffective assistance of trial counsel claim, and that on remand he was entitled to evidentiary development to litigate the merits of that claim.  Judge Collins, joined by Judges Callahan, Ikuta, R. Nelson, Lee, Bress, Bumatay and VanDyke, dissented from denial of the rehearing petitions.  Jones v. Shinn, 18-99006 (Order Aug. 24, 2020); Ramirez v. Shinn, 10-99023 (Order Aug. 24, 2020).  Judge Collins argues that the two panel decisions "disregard controlling Supreme Court precedent by creating a new judge-made exception to the restrictions imposed by the [AEDPA] on the use of new evidence in habeas corpus proceedings. See 28 U.S.C. § 2254(e)(2)."  Because in § 2254(e)(2), Congress explicitly abrogated the judicially created  "cause and prejudice" standard and replaced it with a much more demanding standard, the Ninth Circuit, according to Judge Collins, has "no authority to rewrite the statute and to engraft a judge-made Martinez exception onto it."

On July 15, 2020, the Sixth Circuit Court of Appeals granted rehearing en banc in Hill v. Anderson, 99-4317.  In 2018, death row inmate Danny Hill had prevailed in the Sixth Circuit on an Atkins claim.  Hill v. Anderson, 881 F.3d 483 (6th Cir. 2018).  The Supreme Court, in a per curiam opinion, reversed, holding that the Sixth Circuit erred in its 28 U.S.C. § 2254(d) analysis by relying on Supreme Court precedent that had yet to be decided at the time the state courts addressed the claim.  Shoop v. Hill, 139 S.Ct. 504 (2019).  On remand, the Sixth Circuit again found that Hill was entitled to relief on his Atkins claim.  Hill v. Anderson, 960 F.3d 260 (6th Cir. 2020).  In granting en banc review, the panel decision granting relief was vacated.  Argument before the en banc court will be heard on December 2, 2020, following the filing of supplemental briefs.