Pending Cert Petitions of Interest

The following pending petitions involve issues of interest to capital habeas litigators:

Jordan v. Georgia Department of Corrections, 19-1361 (cert. petition filed June 8, 2020)
(case below: 947 F.3d 1322 (11th Cir.))
Question presented:

Whether evidence of how other departments of corrections have obtained and successfully administered an alternative execution method is relevant to showing the method is feasible and available under Glossip v. Gross, 135 S. Ct. 2726 (2015). 

Click here to view the certiorari petition.

Perez v. Colorado, 19-1357 (cert. petition filed June 4, 2020)
Question presented:

Whether, and to what extent, the Sixth and Fourteenth Amendments guarantee a criminal defendant the right to discover potentially exculpatory mental health records held by a private party, notwithstanding a state privilege law to the contrary.

Click here to view the certiorari petition.

Thomas v. Barnes, 19-1307 (cert. petition filed May 15, 2020)
(case below: 938 F.3d 526 (4th Cir.))

Question presented:

   In Brecht v. Abrahamson, 507 U.S. 619 (1993), this Court held that final criminal convictions may only be overturned on federal habeas corpus review if an error during the underlying proceeding exerted a substantial and injurious effect on the jury's verdict.  

   The question presented is:

   Did the Fourth Circuit misapply this Court's precedents by granting habeas relief where there was no evidence that a juror's contact with a third party had a substantial and injurious effect on the jury's verdict?

Click here to view the warden's certiorari petition.

Shinn v. Kayer, 19-1302 (cert. petition filed May 15, 2020)
(case below: 923 F.3d 692 (9th Cir.))

Question presented:

   Respondent George Russell Kayer sits on Arizona’s death row for shooting Delbert Haas twice in the head more than a quarter-century ago.  The state post-conviction court denied on the merits Kayer’s claim that his attorneys ineffectively investigated and presented mitigation at sentencing.  Subsequently, bound by the Anti-terrorism and Effective Death Penalty Act (AEDPA), the district court denied habeas relief on that claim.  App. 82– 185.  A divided Ninth Circuit panel, however, reversed the district court, applying no meaningful deference to the state court’s decision.  App. 2–81.  Judge Carlos Bea then authored a twelve-judge dissent from the denial of en banc rehearing.   App. 255–289.

   The Question Presented is as follows:

   Did the Ninth Circuit violate 28 U.S.C. § 2254’s deferential standard, and employ a flawed methodology this Court has repeatedly condemned, when it granted habeas relief based on a de novo finding that a Sixth Amendment violation had occurred? 

Click here to view the certiorari petition.

Robinson v. Colorado, 19-1218 (cert. petition filed March 26, 2020)
(case below: 454 P.3d 229 (Co.))

Question presented:

     Petitioner is an African-American man who was tried for sexually assaulting a white woman. During the prosecutor’s opening statement, she gratuitously contrasted the alleged victim’s “pasty white” skin with petitioner’s “dark” skin. She described the incident as “a dark penis going into a white body.” During the trial, she repeatedly called the jury’s attention to petitioner’s race and to the fact that he is “dark complected” below the waist. Although the prosecutor’s comments had nothing to do with any issue at trial, defense counsel never objected to any of these errors. The Colorado Court of Appeals reversed for plain error, but the Colorado Supreme Court held that the errors were not plain because petitioner had not shown that they altered the jury’s verdict.

     The question presented is whether, to establish that a prosecutor’s blatant appeals to racial prejudice constitute plain error, the defendant must show that they altered the jury’s verdict. 

Click here to view the certiorari petition.  The case was distributed for the May 28, 2020 conference.  A response was requested on May 26, 2020.

Dailey v. Florida, 19-1094 (cert. petition filed March 2, 2020)
(case below: 283 So.3d 782 (Fla.))

Questions presented:

     Petitioner James Milton Dailey uncovered exculpatory evidence that the State failed to disclose prior to trial, in violation of the rule stated in Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). This evidence included a statement by a former prosecutor indicating that Dailey’s codefendant had confessed to committing the crime. It also included a statement by a former inmate at the jail where Dailey had been housed revealing that the lead police investigator offered favorable treatment to inmates in return for testimony against Dailey; the State’s case at trial hinged almost entirely on the testimony of these jailhouse informants. But the court below refused to consider this evidence, holding that the Brady materials should have been discovered by the defense through the exercise of due diligence and that those materials, in any event, should be analyzed in isolation and not cumulatively. 

     The questions presented are: 

     (1) Whether a defendant advancing a Brady claim must demonstrate that he or she could not have uncovered the suppressed evidence through the exercise of due diligence.  (2) Whether the materiality of a Brady claim must be determined by considering the probative force of the withheld evidence cumulatively and in the context of the government’s entire case. (3) Whether the Florida Supreme Court’s error in treating petitioner’s Giglio claim as though it alleged knowing use of perjury, when it actually alleged withholding exculpatory evidence, warrants reversal. 

Click here to view the certiorari petition.  The case has been distributed for the September 29, 2020 conference.

Farrar v. Williams, 19-953 (cert. petition filed Jan. 27, 2020)
(case below: 924 F.3d 1126 (10th Cir.))

Question presented:

   The question presented, which has divided fourteen federal courts of appeal and state high courts, is:

   Whether the Due Process Clause is violated when the prosecution relies on material, perjured testimony to secure a conviction but did not know the testimony was perjured until after the trial, as six courts have held, or whether the prosecution’s contemporaneous knowledge of the perjured testimony is required, as eight courts have held.

Click here to view the certiorari petition. The case was distributed for the May 15, 2020 conference.  On May 4, 2020 a response was requested.  The case has been redistributed for the September 29, 2020 conference.

Hall v. Myrick, 18-9297 (cert. petition filed April 16, 2019)
(case below: unpublished memorandum (9th Cir.))

Question presented:

Whether a court can disregard record evidence of the prevailing professional norms in assessing the reasonableness of counsel's action or inaction under the Sixth Amendment.

Click here to view the certiorari petition.  The case was distributed for the June 20, 2019 conference.  On June 12, 2019, a response to the petition was requested.  It was subsequently redistributed for the conferences on October 1, 2019, April 24, 2020, and May 1, 2020.