The Supreme Court has granted certiorari in the following cases involving issues of interest to capital habeas litigators:
Bowe v. United States, 24-5438 (cert. granted Jan. 17, 2025)
Case below: 11th Cir. (unpublished)
Questions Presented:
Under 28 U.S.C. § 2244(b)(1), “[a] claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.” (emphasis added).
The first question presented is:
Whether 28 U.S.C. § 2244(b)(1) applies to a claim presented in a second or successive motion to vacate under 28 U.S.C. § 2255.
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Under 28 U.S.C. § 2244(b)(3)(E), “[t]he grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition . . . for a writ of certiorari.” (emphasis added).
The second question presented is:
Whether 28 U.S.C. § 2244(b)(3)(E) deprives this Court of certiorari jurisdiction over the grant or denial of an authorization by a court of appeals to file a second or successive motion to vacate under 28 U.S.C. § 2255.
Click here to view the certiorari petition.
Rivers v. Lumpkin, 23-1345 (cert. granted December 6, 2024)
Case below: 99 F.4th 216 (5th Cir.)
Question presented:
Under the federal habeas statute, a prisoner "always gets one chance to bring a federal habeas challenge to his conviction," Banister v. Davis, 590 U.S. 504, 509 (2020). After that, the stringent gatekeeping requirements of 28 U.S.C. § 2244(b)(2) bar nearly all attempts to file a "second or successive habeas corpus application." Here, petitioner sought to amend his initial habeas application while it was pending on appeal. The Fifth Circuit applied § 2244(b)(2) and rejected the amended filing.
The circuits are intractably split on whether § 2244(b)(2) applies to such filings. The Fifth, Sixth, Seventh, Eighth, Ninth, and Eleventh Circuits hold that § 2244(b)(2) categorically applies to all second-in-time habeas filings made after the district court enters final judgment. The Second Circuit disagrees, applying § 2244(b)(2) only after a petitioner exhausts appellate review of his initial petition. And the Third and Tenth Circuits exempt some second-in-time filings from § 2244(b)(2), depending on whether a prisoner prevails on his initial appeal (Third Circuit) or satisfies a seven-factor test (Tenth Circuit).
The question presented is:
Whether § 2244(b)(2) applies (i) only to habeas filings made after a prisoner has exhausted appellate review of his first petition, (ii) to all second-in-time habeas filings after final judgment, or (iii) to some second-in-time filings, depending on a prisoner's success on appeal or ability to satisfy a seven-factor test.
Click here to view the certiorari petition.
Gutierrez v. Saenz, 23-7809 (cert. granted October 4, 2024)
Question presented:
In Reed v. Goertz, 598 U.S. 230, 234 (2023), this Court held that Rodney Reed has standing to pursue a declaratory judgment that Texas’s post-conviction DNA statute was unconstitutional because “Reed suffered an injury in fact,” the named defendant “caused Reed’s injury,” and if a federal court concludes that Texas’s statute violates due process, it is “substantially likely that the state prosecutor would abide by such a court order.”
In this case, a divided panel of the United States Court of Appeals for the Fifth Circuit refused to follow that ruling over a dissent that recognized that this case was indistinguishable from Reed. The majority formulated its own novel test for Article III standing, which requires scouring the record of the parties’ dispute and any legal arguments asserted, to predict whether the defendants in a particular case would actually redress the plaintiff’s injury by complying with a federal court’s declaratory judgment. Gutierrez v. Saenz, 93 F.4th 267, 274 (5th Cir. 2024).
The Fifth Circuit’s new test conflicts with Reed and creates a circuit split with the United States Courts of Appeals for the Eighth and Ninth Circuits, which have applied the standing doctrine exactly as this Court directed in Reed. See Johnson v. Griffin, 69 F.4th 506 (8th Cir. 2023); Redd v. Guerrero, 84 F.4th 874 (9th Cir. 2023). The question presented is:
Does Article III standing require a particularized determination of whether a specific state official will redress the plaintiff’s injury by following a favorable declaratory judgment?
Click here to view the certiorari petition.
Glossip v. Oklahoma, 22-7466 (cert. petition granted January 22, 2024)
(case below: __ P.3d __, 2023 WL 3012463 (Okla. Crim. App.))
Questions presented:
Justin Sneed was, in the State’s words, its “indispensable witness,” and Richard Glossip’s “fate turned on Sneed’s credibility.” Sneed is the person who “bludgeoned the victim to death, and his testimony linking Glossip to the murder was central to the conviction.” State Stay Resp. 10, Glossip v. Oklahoma, No. 22A941 (U.S.). He only claimed Mr. Glossip was involved after being fed Mr. Glossip’s name six times and threatened with execution. And his accounting of basic facts about the crime has shifted dramatically with each telling.
With Sneed’s credibility already tenuous, the State undisputedly hid from the jury Sneed’s having “seen a psychiatrist” who diagnosed Sneed with a psychiatric condition that rendered him volatile and “potentially violent,” particularly when combined with methamphetamine use, a street drug Sneed was abusing at the time he murdered Barry Van Treese. Id. In fact, the State allowed Sneed to affirmatively tell the jury he had not seen a psychiatrist.
Before the Oklahoma Court of Criminal Appeals (OCCA), the State confessed error, admitting that the failure to disclose the truth about Sneed’s psychiatric condition, leaving the jury with Sneed’s uncorrected false testimony and then suppressing this information for a quarter-century, rendered “Glossip’s trial unfair and unreliable.” Id. at 4–5. Before this Court, the State has admitted Mr. Glossip is entitled to a new trial on these grounds, as well as in light of “cumulative error” regarding “multiple issues raised in Glossip’s Post-Conviction Relief Application.” Id. at 4. But the OCCA has refused to stop the execution of an innocent man who never had a fair trial.
This petition presents the following questions:
1. a. Whether the State’s suppression of the key prosecution witness’s admission he was under the care of a psychiatrist and failure to correct that witness’s false testimony about that care and related diagnosis violate the due process of law. See Brady v. Maryland, 373 U.S. 83 (1963); Napue v. Illinois, 360 U.S. 264 (1959).
b. Whether the entirety of the suppressed evidence must be considered when assessing the materiality of Brady and Napue claims. See Kyles v. Whitley, 514 U.S. 419 (1995).
2. Whether due process of law requires reversal, where a capital conviction is so infected with errors that the State no longer seeks to defend it. See Escobar v. Texas, 143 S. Ct. 557 (2023) (mem.).
Justice Gorsuch took no part in the consideration of the petition. (He was on the panel of the Tenth Circuit Court of Appeals that affirmed the denial of Glossip's earlier federal habeas corpus petition). In granting certiorari review, the Supreme Court directed the parties to brief and argue the following additional question: "Whether the Oklahoma Court of Criminal Appeals' holding that the Oklahoma Post-Conviction Procedure Act precluded post-conviction relief is an adequate and independent state-law ground for the judgment."
Click here to view Glossip's merits brief. Click here to view Respondent's merits brief. Click here to view the Court-Appointed Amicus Curiae merits brief. Argument was heard on October 9, 2024.