Cert Petitions Granted with Decision Pending

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

Cruz v. Arizona, 21-846 (cert. petition granted March 28, 2022)
(case below: 487 P.3d 991(Az.))

Question presented:

     Whether the Arizona Supreme Court’s holding that Arizona Rule of Criminal Procedure 32.1(g) precluded post-conviction relief is an adequate and independent state-law ground for the judgment.

Click here to view the certiorari petition.  The question presented in the grant of certiorari review was formulated by the Supreme Court.

Oklahoma v. Castro-Huerta21-429 (cert. petition granted Jan. 21, 2022)

Question presented:

Whether a State has authority to prosecute non-Indians who commit crimes against Indians in Indian country. 

Click here to view the certiorari petition.  Note that the Court did not include the second question (Whether McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), should be overruled) in the grant of review.

Shoop v. Twyford, 21-511 (cert. petition granted Jan. 14, 2022)
(case below: 11 F.4th 518 (6th Cir.))

Questions presented:

(1) 28 U.S.C. §2241(c) allows federal courts to issue a writ of habeas corpus ordering the transportation of a state prisoner only when necessary to bring the inmate into court to testify or for trial. It forbids courts from using the writ of habeas corpus to order a state prisoner’s transportation for any other reason. May federal courts evade this prohibition by using the All Writs Act to order the transportation of state prisoners for reasons not enumerated in §2241(c)? (2) Before a court grants an order allowing a habeas petitioner to develop new evidence, must it determine whether the evidence could aid the petitioner in proving his entitlement to habeas relief, and whether the evidence may permissibly be considered by a habeas court?

Click here to view the certiorari petition.

Nance v. Ward, 21-439 (cert. petition granted Jan. 14, 2022)
(case below: 981 F.3d 1201 (11th Cir.))

Questions presented:

     In Bucklew v. Precythe, 139 S. Ct. 1112 (2019), “all nine Justices” agreed that a person challenging a State’s method of execution could allege an alternative “not . . . authorized under current state law” and that there was therefore “little likelihood that an inmate facing a serious risk of pain will be unable to identify an available alternative.” Id. at 1136 (Kavanaugh, J., concurring).

     In the proceedings below, Petitioner filed a § 1983 suit bringing an as-applied challenge to Georgia’s sole statutorily authorized method of execution, lethal injection. Petitioner alleged the use of a firing squad as an alternative method. A divided panel held that Petitioner’s challenge could not be heard. The panel ruled that Petitioner must bring his challenge in habeas rather than via § 1983 because he had alleged an alternative method not currently authorized under Georgia law. It further held that Petitioner’s claim would be an impermissible successive petition notwithstanding that the claim would not have been ripe at the time of Petitioner’s first petition.

     The questions presented are:

     1. Whether an inmate’s as-applied method-of-execution challenge must be raised in a habeas petition instead of through a § 1983 action if the inmate pleads an alternative method of execution not currently authorized by state law.
     2. Whether, if such a challenge must be raised in habeas, it constitutes a successive petition where the challenge would not have been ripe at the time of the inmate’s first habeas petition.

Click here to view the certiorari petition.

Kemp v. United States, 21-5726 (cert. petition granted Jan. 10, 2022)
(case below: 857 Fed. Appx 573 (11th Cir.))

Question presented:

     Federal Rule of Civil Procedure 60(b)(1) authorizes relief from final judgment based on “mistake,” as well as inadvertence, surprise, or excusable neglect.

     The question presented is:

          Whether Rule 60(b)(1) authorizes relief based on a district court’s error of law.

Click here to view the certiorari petition.   

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 was set for argument on November 1, 2021 but was moved to December 8, 2021.  It was argued that day.

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.