The following pending petitions involve issues of interest to capital habeas litigators:
King v. Emmons, 23-668 (cert. petition filed December 18, 2023)
(case below: 69 F.4th 856 (11th Cir.))
Questions presented:
A Georgia jury convicted and sentenced to death Warren King, a black man, for murdering a white woman during a robbery attempt when he was 18 years old. Abundant evidence demonstrates that the prosecutor discriminated against black and female jurors in selecting King’s jury. The prosecutor struck 87.5% of the black jurors in the pool, while striking only 8.8% of white jurors, all women. When the defense challenged his strikes, the prosecutor embarked on not one, but two rants, in which he “angr[ily]” told the court that it was “improper for this Court to tell me that I cannot decide” who to strike, and that Batson was unnecessary because often “it was a physical impossibility if you wanted to strike every black off a jury.” Pet. App. 46-48a.
On appeal, the Georgia Supreme Court affirmed without mentioning the prosecutor’s rants or his grossly disproportionate strike rate, and notwithstanding the prosecutor’s inconsistent, flimsy, and factually inaccurate rationales for many of his strikes. On habeas review, a divided Eleventh Circuit panel ultimately held that although the record was “troubling,” the state court had not acted unreasonably.
The questions presented are:
1.Whether the Georgia Supreme Court’s decision was based on “an unreasonable determination” of the facts. 28 U.S.C. § 2254(d)(2).
2. Whether the Georgia Supreme Court “unreasonably applied.” Batson v. Kentucky, 476 U.S. 79 (1986). 28 U.S.C. § 2254(d)(1).
Click here to view the certiorari petition.
Hamm v. Smith, 23-167 (cert. petition filed Aug. 17, 2023)
(case below: 67 F.4th 1335 (11th Cir.))
Questions presented:
(1) Whether Hall and Moore mandate that courts deem the intellectual-functioning prong satisfied when an offender’s lowest IQ score, decreased by one standard error of measurement, is 70 or below. (2) Whether the Court should overrule Hall and Moore or at least clarify that they permit courts to consider multiple IQ scores and the probability that an offender’s IQ does not fall at the bottom of the lowest IQ score’s error range.
Click here to view the certiorari petition. Click here to view Brief of Idaho and 13 Other States as Amici Curiae in Support of Petitioner.
Glossip v. Oklahoma, 22-6500 (cert. petition filed Jan. 3, 2023)
(case below: unpiblished (Okla.Crim.App.))
Questions presented:
Petitioner, Richard Glossip, faces execution on February 16, 2023 for a conviction premised on the State’s theory that he hired Justin Sneed, who is the undisputed actual killer, to kill the owner of a motel where Mr. Glossip was the manager. Sneed’s testimony was the only evidence of any agreement, and his testimony, for which he received assurance he would not face a death sentence, was critical to this case where, as one federal judge put it, “the evidence of guilt was not overwhelming.”
At Mr. Glossip’s first trial, his attorney failed to undertake even rudimentary efforts in his defense, resulting in a full reversal. Chief among the failings was a failure to impeach Sneed with evidence he had been coached to implicate Glossip, whom the interviewing detective brought up six times before Sneed implicated him in the murder.
At retrial, Mr. Sneed was impeached to some extent about having been led to identify Mr. Glossip and about inconsistencies in his account of the murder.
Recently, in post-conviction proceedings, Mr. Glossip learned that prior to the retrial, Sneed had expressed his desire to “recant” and that immediately prior to meeting with Sneed during the second trial, the prosecutor wrote in a memo that the “biggest problem” with the case would be if Sneed repeated his initial statement to police and that she needed to “get to him” before he testified.
This petition presents the following questions:
1. Whether a court may require a defendant to demonstrate by clear and convincing evidence that no reasonable fact finder would have returned a guilty verdict to obtain relief for a violation of Brady v. Maryland, 373 U.S. 83 (1963).
2. Whether suppressed impeachment evidence of the State’s key witness is per se non-material under Brady v. Maryland because that witness’s credibility had been otherwise impeached at trial.
Click here to view the certiorari petition. The case has been rescheduled for conference multiple time. On May 5, 2023, the Supreme Court granted Glossip's application for stay of execution pending disposition of this petition, and the petition filed in 22-7466.