Supreme Court Developments March 22, 2021

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:

I.  Did the circuit court err in holding that a federal habeas court may never hold a hearing on a punishment issue without first considering 28 U.S.C. § 2254 (e)(2)’s threshold inquiry as required by Williams v. Taylor? II. Does the Fifth Circuit’s two-pronged agency test for Sixth Amendment Massiah claims, which is not followed by other circuit courts, conflict with this Court’s Sixth Amendment Jurisprudence. III. Did the lower courts misapply the rule established in Harrington v. Richter and Johnson v. Williams by applying AEDPA deference to a constitutional claim that was granted by the state court, but for which the state court failed to consider harm, and should the lower courts have instead applied the rule established by Wiggins v. Smith and its progeny?

Justice Kagan, joined by Justices Breyer and Sotomayor, issued a statement concurring in the denial of the petition.  Justice Kagan addressed only the first question presented.  The Fifth Circuit Court of Appeals found that Thompson was barred from receiving an evidentiary hearing in the district court because the claims for which a hearing was sought went only to punishment and, according to the Fifth Circuit, the second condition of §2254(e)(2) demands that the applicant’s claims refute his guilt.  Justice Kagan observed that there is a circuit split on that issue but focused instead on whether the Fifth Circuit had erred in applying the conditions of §2254(e)(2) at all.   Those conditions come into play only if the applicant failed to develop the factual basis for the claims in state court.  And yet the Fifth Circuit was silent on the question of Thompson's diligence when it addressed his request for an evidentiary hearing.  Notably, the Fifth Circuit had granted a certificate of appealability on the merits of the claims even though they were procedurally defaulted.  It did so because of its conclusion that "jurists of reason could debate” whether the default resulted not from Thompson’s neglect but from the State’s concealment of evidence.  Justice Kagan then pointed out:

If Thompson’s claims went undeveloped in state court not through his own fault, but because “the prosecution concealed the facts,” then §2254(e)(2) would drop out of the picture. Williams, 529 U. S., at 434. So in failing to address the (concededly debatable) diligence issue, the Fifth Circuit may have wrongly deprived Thompson of an evidentiary hearing. 

Justice Kagan nevertheless determined that intervention by the Supreme Court was unwarranted.  She "doubt[ed] that the Fifth Circuit meant to adopt a novel view of §2254(e)(2), in conflict with how this Court has construed the provision and how every other Court of Appeals applies it. . . . Indeed, several prior Fifth Circuit decisions have gotten the law right."  If the opinion below merely represented "a one-off misapplication of law," Supreme Court Rules counseled against granting review.  And denying review was deemed "all the more appropriate here" given that a later decision in Thompson’s case raised "serious questions about whether an evidentiary hearing would have led to granting him relief on the merits. See Thompson v. Davis, 941 F. 3d 813, 816 (CA5 2019)."

The Supreme Court also denied the certiorari petition in Smith v. Titus, 20-633:

The question presented by this petition is whether the Sixth Amendment’s public trial guarantee, within the review apparatus imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) applies (1) to all phases of a defendant’s criminal trial; or (2) only to pretrial suppression hearings and juror voir dire.

Justice Sotomayor issued an opinion dissenting from the denial of the certiorari petition.  The courtroon closure at issue in this case occurred when the trial court ruled on the admissibility of certain testimony.  In finding no constitutional violation, the Minnesota Supreme Court ruled that “administrative proceedings,” including “routine evidentiary rulings,” categorically “do not implicate the Sixth Amendment right to a public trial.”  In denying federal habeas corpus relief, the Eighth Circuit Court of Appeals concluded that the Minnesota Supreme Court’s decision did not contravene clearly established federal law because the Supreme Court has never specifically “addressed whether . . . ‘administrative’ proceedings . . . implicate the Sixth Amendment right to a public trial.” 958 F. 3d 687, 692 (8th Cir. 2020). It further determined that the Minnesota Supreme Court did not “unreasonably apply” Supreme Court precedents.  According to Justice Sotomayor:

Today’s decision denying Smith’s request for plenary review is the last in a long series of misguided rulings. First, the Minnesota trial court violated the Sixth Amendment by closing the courtroom without adequate justification. Next, the Minnesota Supreme Court wrongly exempted the closed proceeding from the Sixth Amendment entirely, relying on a brand new administrative-proceeding exception that finds no basis in the Constitution or this Court’s precedent. Then, by creatively redefining the meaning of “dicta,” the Eighth Circuit erroneously concluded that the Minnesota Supreme Court’s decision was not contrary to clearly established Supreme Court precedent. And today, this Court misses the opportunity to correct these compounding injustices