Cert Petitions Granted with Decision Pending

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

Kahler v. Kansas, 18-6135 (cert. petition granted March 18, 2019)
(case below: 410 P.3d 105 (Kansas))

Question presented:

Do the Eighth and Fourteenth Amendments permit a state to abolish the insanity defense?

Click here to view the certiorari petition.  

Ramos v. Louisiana, 18-5924 (cert. petition granted March 18, 2019)
(case below: 231 So.3d 44 (La. App.))

Question presented:

Whether the Fourteenth Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict?

Click here to view the certiorari petition.  

Mathena v. Malvo, 18-217 (cert. petition granted March 18, 2019)
(case below: 893 F.3d 265 (4th Cir.))

Question presented:

     In Miller v. Alabama, 567 U.S. 460 (2012), this Court held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’ ” Id. at 465. Four years later, in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the Court held that “Miller announced a substantive rule of constitutional law” that, under Teague v. Lane, 489 U.S. 288 (1989), must be given “retroactive effect” in cases where direct review was complete when Miller was decided. Montgomery, 136 S. Ct. at 736.

     The question presented is:

     Did the Fourth Circuit err in concluding—in direct conflict with Virginia’s highest court and other courts—that a decision of this Court (Montgomery) addressing whether a new constitutional rule announced in an earlier decision (Miller) applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question?

Click here to view the warden's certiorari petition. 

Flowers v. Mississippi, 17-9572 (cert. petition granted November 2, 2018)
(case below: 240 So.3d 1082 (Miss.)

Question presented in the petition:

     Petitioner Curtis Flowers has been tried six times for the same offense in Mississippi state court. Through the first four trials, prosecutor Doug Evans relentlessly removed as many qualified African American jurors as he could. He struck all ten African Americans who came up for consideration during the first two trials, and he used all twenty-six of his allotted strikes against African Americans at the third and fourth trials. (The fifth jury hung on guilt-or-innocence and strike information is not in the available record). Along the way, Evans was twice adjudicated to have violated Batson v. Kentucky – once by the trial judge during the second trial, and once by the Mississippi Supreme Court after the third trial.

     At the sixth trial Evans accepted the first qualified African American, then struck the remaining five. When Flowers challenged those strikes on direct appeal, a divided Mississippi Supreme Court reviewed Evans’ proffered explanations for the strikes deferentially and without taking into account his extensive record of discrimination in this case, and affirmed. Flowers then sought review here, asking: “Whether a prosecutor’s history of adjudicated purposeful race discrimination must be considered when assessing the credibility of his proffered explanations for peremptory strikes against minority prospective jurors?” This Court responded by granting certiorari, vacating the Mississippi Supreme Court’s judgment, and remanding “for further consideration in light of Foster v. Chatman, 136 S. Ct. 1737 (2016).” Flowers v. Mississippi, 136 S. Ct. 2157 (2016).

     On remand, a divided Mississippi Supreme Court again affirmed. Over three dissents, the state court majority emphasized deference to the trial court, and insisted both that the “[t]he prior adjudications of the violation of Batson do not undermine Evans’ race neutral reasons,” and that “the historical evidence of past discrimination ... does not alter our analysis ....” Flowers v. Mississippi, 240 So.3d 1082, 1124 (Miss. 2018). The state court majority then repeated, nearly word-for-word, its previous, history-blind evaluation of Evans’ strikes.

     Because a prosecutor’s personal history of verified, adjudicated discrimination is highly probative of both his propensity to discriminate and his willingness to mask that discrimination with false explanations at Batson’s third step, the barely altered question presented is:

Whether a prosecutor’s history of adjudicated purposeful race discrimination may be dismissed as irrelevant when assessing the credibility of his proffered explanations for peremptory strikes against minority prospective jurors?

Question presented on grant of cert:

Whether the Mississippi Supreme Court erred in how it applied Batson v. Kentucky, 476 U.S. 79 (1986) in this case.

Click here to view Flowers's merits brief.  Click here to view the amicus brief of Former Justice Department Officials in support of Flowers.  Click here to view the merits brief of Mississippi.  Argument was heard on March 20, 2019.

Gamble v. United States, 17-646 (cert. petition granted June 28, 2018)
(case below: 11th Cir. (unpublished))

Question presented:

Whether the Supreme Court should overrule the "separate sovereigns" exception to the double jeopardy clause.

Click here to view Gable's merits brief. Click here to view the amicus brief of Howard University School of Law Thurgood Marshall Civil Rights Center in support of neither party. Click here to view the amicus brief of Law Professors in support of petitioner. Click here to view the amicus brief of U.S. Navy-Marine Corps Appellate Defense Division, et al. in support of petitioner. Click here to view the Constitutional Accountability Center, et al. in support of petitioner. Click here to view the amicus brief of Criminal Defense Experts in support of petitioner.  Click here to view the amicus brief of National Association of Criminal Defense Lawyers, et al. in support of petitioner.  Click here to view the amicus brief of Criminal Procedure Professors in support of petitioner.   Click here to view the amicus brief of Senator Orrin Hatch in support of petitioner.  Click here to view the amicus brief of the Rutherford Institute in support of petitioner.  Click here to view the merits brief of the United States. Click here to view the amicus brief of Texas, et al. in support of respondent.  Click here to view the amicus brief of National Association of Counties, et al. in support of respondent.  Click here to view the amicus brief of National Indigenous Women's Resource Center, et al. in support of respondent.  Argument was heard on December 6, 2018.

Carpenter v. Murphy, 17-1107 (cert. petition granted May 21, 2018)
(case below: 866 F.3d 1164 (10th Cir.))

Question presented:

Whether the 1866 territorial boundaries of the Creek Nation within the former Indian Territory of eastern Oklahoma constitute an "Indian reservation" today under 18 U.S.C. § 1151(a).

Click here to view the warden's merits brief.  Click here to view the amicus brief of International Municipal Lawyers Association, et al. in support of the warden.  Click here to view the amicus brief of Oklahoma Independent Petroleum Association in support of the warden.  Click here to view the amicus brief of Oklahoma Sheriffs' Association, et al. in support of the warden.  Click here to view the amicus brief of the States of Nebraska, Kansas, Louisiana, Michigan, Montana, South Dakota, Texas, Utah, Wyoming, and Paul R. LePage, Governor of Maine in support of the warden.  Click here to view the amicus brief of Environmental Federation of Oklahoma, Inc., et al. in support of the warden.  Click here to view the amicus brief of the United States in support of the warden.  Click here to view Murphy's merits brief.  Click here to view the amicus brief of David Boren, et al. in support of Murphy.  Click here to view the amicus brief of National Congress of American Indians in support of Murphy.  Click here to view the amicus brief of Historians, Legal Scholars, and Cherokee Nation in support of Murphy.  Click here to view the amicus brief of Muscogee (Creek) Nation in support of Murphy.  Click here to view the amicus brief of Former United States Attorneys in support of Murphy. Click here to view the amicus brief of National Indigenous Women's Resource Center, et al. in support of Murphy.  Click here to view the warden's reply brief.  The joint motion of Murphy and Moscogee (Creek) Nation for leave for Moscogee (Creek) Nation to participate in oral argument as amicus curiae and for divided argument was granted.  The Solicitor General's motion for leave to participate in oral argument as amicus curiae and for divided argument was granted.  Argument was heard on November 27, 2018.