Cert Petitions Granted with Decision Pending

The Supreme Court has granted certiorari in the following cases involving issues of interest to capital habeas litigators:

Ramirez v. Collier, 21-5592 (cert. petition granted Sept. 8, 2021)
(case below: ___ F.4th ___, 2021 WL 4047106 (5th Cir.))

Questions presented:

(1) Under the Free Exercise Clause and Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc–2000cc– 5 (2000), does the State’s decision to allow Ramirez’s pastor to enter the execution chamber, but forbidding the pastor from laying his hands on his parishioner as he dies, substantially burden the exercise of his religion, so as to require the State to justify the deprivation as the least restrictive means of advancing a compelling governmental interest? (2) Under the Free Exercise Clause and Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc–2000cc– 5 (2000), does the State’s decision to allow Ramirez’s pastor to enter the execution chamber, but forbidding the pastor from singing prayers, saying prayers or scripture, or whispering prayers or scripture, substantially burden the exercise of his religion, so as to require the State to justify the deprivation as the least restrictive means of advancing a compelling governmental interest?

Click here to view the certiorari petition.  On September 10, 2021, the Court issued an order stating:

The parties are directed to submit briefs that address whether petitioner adequately exhausted his audible prayer claim under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). The parties are also directed to address whether petitioner has satisfied his burden under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) to demonstrate that a sincerely held religious belief has been substantially burdened by restrictions on either audible prayer or physical contact. The parties are further directed to address whether the government has satisfied its burden under RLUIPA to demonstrate its policy is the least restrictive means of advancing a compelling government interest. Finally, the parties are directed to address the type of equitable relief petitioner is seeking, the appropriate standard for this relief, and whether that standard has been met here. See Hill v. McDonough, 547 U. S. 573, 584 (2006) (setting forth a four- factor test for equitable relief). The parties may address other relevant issues, avoiding repetition of discussion in prior briefing.

The case has been set for argument on November 1, 2021.  

Shinn v. Ramirez, 20-1009 (cert. granted May 17, 2021)
(case below: 937 F.3d 1230 (9th Cir.))

Question presented:

     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?

Click here to view Shinn's merits brief.  Click here to view the amicus brief of Jonathan F. Mitchell and Adam K. Mortara in support of petitioners.  Click here to view the amicus brief of Texas, Alabama, Arkansas, Florida, Georgia, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oregon, Soth Carolina, South Dakota, Utah, and West Virginia in support of petitioners.  Click here to view the amicus brief of the Criminal Justice Legal Foundation in support of petitioners.  Click here to view Respondents's merits brief.  Click here to view the amicus brief of the Arizona Justice Project and Robert Bartels in support of respondents.  Click here to view the amicus brief of the Arizona Capital Representation Project & Arizona Center for Disability Law in support of respondents.  Click here to view the amicus brief of the Federal Defender Capital Habeas Unit in support of respondents.  Click here to view the amicus brief of Habeas Scholars in support of respondents.  Click here to view the amicus brief of Former State Supreme Court Justices and Former Federal Judges in support of respondents.  Click here to view the amicus brief of the American Bar Association in support of respondents.  Click here to view amicus brief of Habeas Scholars in support of respondents.  Click here to view the amicus brief of the Innocence Network in support of respondents.  Click here to view the amicus brief of Bispartisan Former Department of Justice Officials and Former Federal Prosecutors in support of respondents.  The case has been set for argument on November 1, 2021.

Hemphill v. New York, 20-637 (cert. granted April 19, 2021)
(case below: 150 N.E.3d 356)

Question presented:

     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.

Click here to view Hemphill's merits brief.  Click here to view the amicus brief of National Association of Criminal Defense Lawyers in support of petitioner.  Click here to view the amicus brief of the Constitutional Accountability Center in support of petitioner.  Click here to view the amicus brief of The Bronx Defenders, et al., in support of petitioner.  Click here to view the amicus brief of Criminal Defense Lawyers of New Jersey in support of petitioner.  Click here to view the amicus brief of Evidence and Criminal Procedure Professors in support of petitioner.  Click here to view the amicus brief of the Innocence Project and Innocent Network in support of petitioner.  Click here to view the amicus brief of the American Civil Liberties Union, et al., in support of petitioner.  Click here to view the amicus brief of Richard D. Friedman in support of petitioner.  Click here to view New York's merits brief.  Click here to view the amicus brief of Adam Oustatcher in support of respondent.  Click here to view the amicus brief of the District Attorneys Association of the State of New York and the National District Attorneys Association in support of respondent.  Click here to view the amicus brief of Utah, Arizona, Arkansas, Florida, Hawaii, Kansas, Louisiana, Minnesota, Mississippi, Nebraska, North Dakota, Soth Carolina and South Sakota in support of respondent.  Click here to view Hemphill's reply brief.  The case was argued on October 5, 2021.

Brown v. Davenport, 20-826 (cert. granted April 5, 2021)
(case below:  964 F.3d 448 (6th Cir.))

Question presented:

     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?

Click here to view Brown's merits brief.  Click here to view the amicus brief of the Criminal Justice Legal Foundation in support of petitioner.  Click here to view the amicus brief of the States of Arkansas, Alabama, Alaska, Arizona, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, and Utah in support of petitioner.  Click here to view the amicus brief of Jonathan F. Mitchell and Adam K. Montara in support of petitioner.  Click here to view Davenport's merits brief.  Click here to view Brown's reply brief.  The case was argued on October 5, 2021.

United States v. Tsarnaev, 20-443 (cert petition granted March 22, 2021)
(case below: 968 F.3d 24 (1st Cir.))

Questions presented:

(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.

Click here to view the certiorari petition.  Click here to view the United States's merits brief.  Click here to view the amicus curiae brief of the Criminal Justice Legal Foundation in support of petitioner. Click here to view the amicus curiae brief of National Fraternal Order of Police in support of petitioner.  Click here to view the amicus curiae brief of the American Bar Association in support of neither party.  Click here to view Tsarnaev's merits brief.  Click here to view the amicus curiae brief of James Fetzer, Ph.D., et al., in support of respondent.  Argument will be heard on October 13, 2021.