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