The following pending petitions involve issues of interest to capital habeas litigators:
Whitton v. Dixon, 25-580 (cert. petition filed Nov. 12, 2025)
(case below: 2025 WL 1305158 (11th Cir.) (up))
Questions presented:
Petitioner established below, and the Eleventh Circuit agreed, that petitioner’s capital murder trial was tainted by a Giglio violation. Ordinarily, a petitioner who makes such an extraordinary showing of prosecutorial misconduct would be entitled to habeas relief under 28 U.S.C. § 2254.
But the Eleventh Circuit deemed the violation immaterial. The Eleventh Circuit held that the Florida Supreme Court reasonably concluded that, even without the Giglio-tainted testimony, the evidence against petitioner was “overwhelming.” The Eleventh Circuit reached that determination almost entirely on the basis of evidence that Florida developed a decade after petitioner’s trial and that flatly contradicted unrebutted evidence presented by the defense at the actual trial.
The decision below opens a direct circuit split with the Second, Sixth, and Tenth Circuits, United States v. Jean-Baptiste, 166 F.3d 102 (2d Cir. 1999); Apanovitch v. Bobby, 648 F.3d 434 (6th Cir. 2011); Browning v. Trammell, 717 F.3d 1092 (10th Cir. 2013), and the North Carolina Supreme Court, State v. Best, 376 N.C. 340, 852 S.E.2d 191 (2020), on a question of exceptional importance. It is also in deep tension with this Court’s recent decision in Glossip v. Oklahoma, 604 U.S. 226 (2025).
The questions presented are:
1. Whether in determining whether a constitutional error had a prejudicial effect on the outcome of a trial a court must consider only that evidence that was presented to the jury at the trial.
2. Whether the prejudice from the Giglio violation in this case met the standards for relief under Giglio and Brecht.
Odeku v. Texas, 25-290 (cert. petition filed Sept. 11, 2025)
(case below: ___ S.W.3d ___, 2025 WL 1129131 (Tex. App.))
Question presented:
Are a complainant’s statements to a sexual assault nurse examiner (SANE) testimonial for purposes of the Sixth Amendment’s Confrontation Clause?
Reed v. Goertz, 24-1268 (cert. petition filed June 10, 2025)
Question presented:
In 2023, the Court reversed the Fifth Circuit’s holding that Rodney Reed’s DNA-testing suit was untimely and rejected District Attorney Bryan Goertz’s jurisdictional arguments. Reed v. Goertz, 598 U.S. 230 (2023). The case now returns on the merits, as Goertz continues refusing to test the murder weapon.
Reed has been on death row for over a quarter century for a crime he steadfastly maintains he didn’t commit. Since he was convicted, Reed has amassed a “substantial body of evidence” refuting the state’s theory of the case. Reed v. Texas, 140 S. Ct. 686, 689 (2020) (statement of Sotomayor, J., respecting the denial of certiorari). Despite the resulting “pall of uncertainty over Reed’s conviction,” id. at 690, Goertz refuses to DNA-test the murder weapon—testing that Reed’s attorneys have offered to pay for and that could prove his innocence. Instead, Goertz relies on the Texas Court of Criminal Appeal’s (CCA) authoritative construction of Texas’s postconviction DNA-testing statute, Article 64 of the Texas Code of Criminal Procedure, to insist that Reed isn’t entitled to DNA testing. The CCA’s construction rests, among other things, on the notion that potentially “contaminated” evidence cannot yield probative DNA results—a notion that science disproves and that Texas itself rejects in many cases when seeking to prove guilt.
The question presented is whether Article 64, as authoritatively construed by the CCA, violates due process by arbitrarily denying prisoners access to postconviction DNA testing, rendering illusory prisoners’ state-created right to prove their innocence through newly discovered evidence.
Fields v. Plappert, 23-6912 (cert. petition filed March 4, 2024 and denied June 10, 2024; rehearing petition filed July 31, 2025)
(case below: 86 F.4th 218 (6th Cir.) (en banc))
Question presented:
This Court has held that a jury’s verdict must rest on the evidence developed at the trial. Turner v. Louisiana, 379 U.S. 466, 472-73 (1965). Yet during deliberations in this capital case, the jury—to test the Commonwealth’s theory of guilt—conducted an experiment in the jury room involving extrinsic evidence and then considered and relied on that extrinsic evidence to convict Samuel Fields. The extrinsic evidence went to the central issue in the case: whether someone other than Fields could have committed the murder of Bess Horton.
Under 28 U.S.C. § 2254(d)(1), a petitioner may obtain habeas corpus relief from a state-court judgment if the state court decision rejecting a constitutional claim was contrary to or unreasonable application of clearly established federal law. In this case, the warden concedes that “it is clearly established that jurors must decide a case based on the evidence at trial.” Warden’s CA6 Br. at 21. Every federal judge who has considered this habeas case, including the entire Sixth Circuit en banc panel, likewise has recognized that a jury’s verdict must rest on the evidence developed at the trial. Nonetheless, a majority of the en banc Sixth Circuit determined—in contrast to decisions of other courts of appeals—that this rule does not satisfy § 2254(d)(1)’s “clearly established law” requirement because (1) the rule is too general and (2) this Court has not applied the rule to a fact pattern involving a jury experiment.
This case thus presents the following questions:
Does this Court’s rule requiring that a verdict be based only on the evidence presented in the courtroom at trial satisfy 28 U.S.C. § 2254(d)(1)’s “clearly established” requirement, and if so, can a jury’s consideration of and reliance on extrinsic evidence as part of a jury experiment violate this rule?
The rehearing petition relies on the Supreme Court's decision in Andrew v. White, 145 S.Ct. 75 (2025).