Pending Cert Petitions of Interest

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

Walker v. Mississippi, 20-1306 (cert. petition filed March 8, 2021)
(case below: 303 So. 3d 720(Miss.))

Questions presented:

     Counsel for Petitioner Alan Walker admitted he did not prepare for a potential capital murder penalty phase because of his mis-placed confidence that Walker’s co-indictee would not testify against him. On the weekend before trial, the co-indictee reached a deal with the state, leaving trial counsel with no option but to “humanize” his client with the witnesses who were available: Walker’s mother, half-sister, half-brother, and employer. Counsel had not sought investigative or expert assistance save a self-serving motion for a competency evaluation ten days before trial. He stated on the record he had no basis for the motion and that he wanted to protect himself from an ineffectiveness claim.

     In successive post-conviction proceedings permitted under Mississippi law, new counsel for Walker presented mitigation evidence of a childhood saturated with sexual dysfunction and exposure to sexual abuse, including blatant incest on the part of his step-father and the molestation of Walker and his brother by older teenage girls. An expert psychologist who specializes in the treatment of men who were sexually abused as children testified that the sexual abuse, exploitation, and dysfunction which Walker witnessed and experienced in childhood played a central pivotal role in the rage demonstrated by the crime against Ms. Edwards. A neuropsychologist testified that Walker suffered significant deficits in brain functioning often found in children who suffer abuse or trauma.

     Despite similarity between these facts and the facts in Andrus v. Texas, 140 S. Ct. 1875 (2020), the Mississippi Supreme Court found that Walker had not established the deficient performance of his trial counsel because counsel stated he wanted to “humanize” his client. Contrary to this Court’s precedents, the Mississippi Supreme Court excused the lack of even the most basic investigation to prepare for the penalty phase.

     Under these facts, the following questions are presented for this Court’s decision:

     (1) Did the Mississippi Supreme Court fail to adhere to this Court’s Sixth Amendment jurisprudence requiring counsel in a capital case to conduct a thorough investigation of their client’s background and history, and that purported “tactical” decisions are only reasonable to the extent they are based on such an investigation? (2) Was Alan Walker was denied the effective assistance of counsel in the preparation and presentation of mitigation at his capital trial?

Click here to view the certiorari petition.

Balbuena v. Cates, 20-1207 (cert. petition filed Feb. 26, 2021)
(case below:  980 F.3d 819 (9th Cir.))

Question presented:

Whether a district court filing that seeks to amend a habeas petition pending on appeal constitutes a “second or successive” petition under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).

Click here to view the certiorari petition.

Owens v. Stirling, 20-975 (cert. petition filed Jan. 15, 2021)
(case below: 967 F.3d 396 (4th Cir.))

Questions presented:

     The Court of Appeals granted a Certificate of Appealability (COA) on Freddie Owens’s constitutional claim that he was denied the effective assistance of trial counsel by counsel’s failure to investigate, develop, and present evidence of structural and functional brain damage, based on a finding that the claim was substantial under 28 U.S.C. § 2253(c). The Court of Appeals then found the same claim not to be substantial when denying Mr. Owens a first opportunity to have the merits of his claim considered through the exception established in Martinez v. Ryan, 566 U.S. 1 (2012). This case presents the two following questions:

     (1) What is the standard to be used by federal courts of appeals for determining whether the underlying constitutional claim is “substantial” under Martinez, and how does it relate to the determination that a petitioner has met the requirements to obtain a COA, under 28 U.S.C. § 2253(c) and as described by this Court in Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)?  (2) Under the Martinez standard, is it proper for courts of appeals determining the substantial quality of the underlying constitutional claim to rely on an imbalanced consideration of the record, including ignoring evidence in the record in support of a petitioner’s underlying constitutional claim—as happened in Mr. Owens’s case?

Click here to view the certiorari petition.

Phillips v. Florida, 20-6887 (cert. petition filed Jan. 11, 2021)
(case below: 299 So.3d 1013 (Fla.))

Questions presented:

     In Hall v. Florida, 572 U.S. 701 (2014), this Court found the Florida Supreme Court’s application of its Intellectual Disability statute unconstitutional under Atkins v. Virginia, 536 U.S. 304 (2002). In Walls v. State, 213 So. 3d 340 (2016) (per curiam), the Florida Supreme Court agreed that its prior statutory interpretation had unconstitutionally restricted Atkins claims to a smaller subgroup of individuals than recognized by the medical community and determined Hall to be retroactive to those individuals, like Mr. Phillips, who had timely raised Atkins claims. As a result, capital defendants who were denied under the unconstitutional pre-Hall framework were entitled to receive a new, “holistic” review of their Atkins claims, including Mr. Phillips. However, on appeal from the denial of his Atkins/Hall claim, a newly constituted five-Justice Florida Supreme Court sua sponte reversed its decision in Walls, held Phillips was not entitled to have his intellectual disability claim analyzed under the Hall framework, and determined that Hall announced a new non-watershed rule for Eighth Amendment purposes and thus was not retroactive. The questions presented are:

     (1) Whether a state court must give retroactive effect on collateral review to the rule announced in Hall because the Supremacy Clause, as held in Montgomery v. Louisiana, 136 S.Ct. 718 (2016), mandates that a State court cannot deny a prisoner’s claim that his sentence is violative of the federal constitution by interpreting a case such as Hall as a mere procedural modification of the substantive holding of Atkins but rather the State court must give effect to Atkins’ substantive holding? (2) Does the Florida Supreme Court’s decision in Phillips, denying some capital defendants the retroactive effect of Hall , while having given retroactive effect of Hall to other similarly situated capital defendants, create an unacceptably disparate and unequal death penalty system in violation of the Eighth Amendment? (3) Does the Florida Supreme Court’s decision in Phillips violate the ex post facto clause of the United States Constitution?

Click here to view the certiorari petition.

Freeman v. Florida, 20-6879 (cert. petition filed Jan. 11, 2021)
(case below: 300 So.3d 591 (Fla.))

Questions presented:

(1) Whether Florida’s postconviction procedures governing intellectual disability claims fail to vindicate defendants’ substantive Eighth Amendment rights, such that it constitutes a violation of due process? (2) Whether this Court’s decision in Hall v. Florida, 134 S. Ct. 1986 (2014), announced a new substantive rule, such that it must be applied retroactively by state courts under Montgomery v. Louisiana, 136 S. Ct. 718 (2016).

Click here to view the certiorari petition.

Jackson v. Hudson, 20-911 (cert. petition filed Dec. 31, 2020)
(case below: 822 Fed.Appx. 821 (10th Cir.))

Question presented:

   A person in federal custody may challenge the legality of his detention by filing a post-conviction motion under 28 U.S.C. § 2255. Second or successive motions under that statute are typically prohibited. However, Section 2255(e) includes a saving clause that allows a prisoner to petition for a writ of habeas corpus under 28 U.S.C. § 2241 if the Section 2255 remedy is “inadequate or ineffective to test the legality of his detention.”

   The question presented is:

   Whether Section 2255 is “inadequate or ineffective” when, at the time of petitioner’s initial Section 2255 motion, circuit precedent foreclosed a potential claim, but that precedent has since been overruled by this Court.

Click here to view the certiorari petition.

Calvert v. Texas, 20-701 (cert. petition filed Nov. 16, 2020)
(case below: (Tex Crim. App. (unpublished))

Questions presented:

     This case presents important issues concerning the right to counsel, the Eighth Amendment right to individualized sentencing in a capital case, and the fair administration of justice in Texas. Petitioner respectfully presents three issues for review, each of which warrants the involvement of this Court:

     (1) Whether the Constitution prevents a State from allowing a defendant to represent himself in a capital case when the defendant is mentally competent to waive counsel but is not mentally competent to conduct trial proceedings in his capital trial.

     (2) Whether the Eighth Amendment prohibits the State of Texas from sentencing Petitioner to death on a finding of future dangerousness based in substantial part on graphic testimony and evidence about an attack on a prison official committed by another inmate in another prison at another time, having no connection to Petitioner.

     (3) Whether the constitutional violation resulting from the trial court’s direction to administer a 50,000- volt electric shock to Petitioner during his trial to “enforce decorum” because Petitioner failed to stand when responding to a question from the court constitutes structural error.

Click here to view the certiorari petition.  The case was distributed for the March 26, 2021 conference.  It was then rescheduled.

Johnson v. Precythe, 20-287 (cert. petition filed Aug. 28, 2020)
(case below: 954 F.3d 1098 (8th Cir.))

Questions presented:

   In Bucklew v. Precythe, 139 S. Ct. 1112 (2019), this Court held, at the summary judgment stage and on the record in that case, that the State had a legitimate penological justification for rejecting the inmate’s proffered alternative method of execution because that method had not previously been used to perform an execution, and the inmate had presented no evidence that the method had been studied or could be carried out. The questions presented are:

   (1) Whether Bucklew established a categorical rule that a State may obtain dismissal of an Eighth Amendment method-of-execution claim by proffering a reason for rejecting the plaintiff’s opposed alternative method of execution that is legitimate in the abstract, regardless of whether the plaintiff has plausibly alleged that the State’s proffered reason is not legitimate or sufficient on the facts of the case. (2) In the alternative, whether the court of appeals’ refusal to permit petitioner, after this Court’s decision in Bucklew was issued, to amend his complaint to propose a previously-used alternative method of execution warrants summary reversal.

Click here to view the ceriorari petition.  The case has been redistributed for conference multiple times.  On March 29, 2021, the parties were directed to filed supplemental briefs addressing the following question: Given that the District Court dismissed without prejudice, would petitioner be barred from filing a new complaint that proposes the firing squad as the alternative method of execution?

Harris v. Maryland, 20-101 (cert. petition filed July 27, 2020)
(case below: 219 A.3d 1 (Md. Ct. Special Appeals))

Question presented:

     In United States v. Lovasco, 431 U.S. 783 (1977), this Court considered the prosecution’s “long delay” of “more than 18 months” to indict the defendant for a crime. Id. at 784, 786. The Court concluded that on the facts before it, 18 months of delay for “further investigation” did not offend standards of “fair play and decency” so as to violate due process. Id. at 793-96. But the Court refrained from articulating “in the first instance” a general test for when prejudicial preindictment delay violates due process, instead opting to give lower courts “a sustained opportunity to consider the constitutional significance of various reasons for delay.” Id. at 796-97.

     Four decades later, all circuits, nearly every state high court, and the D.C. Court of Appeals have had the opportunity to consider the proper test for analyzing excessive preindictment delay, and they are entrenched in a well-acknowledged conflict. Applying Maryland’s rigid improper-motive test, the court below held that twenty years of delay before indicting petitioner—including sixteen years in which, by the State’s account, “no significant new evidence was developed”—fulfilled due process.

     The question presented is:

     Where preindictment delay has caused actual prejudice to the accused’s ability to defend himself, does the Due Process Clause require (1) the defendant to prove that the delay was driven by an improper prosecutorial motive; or (2) that courts balance the particular prejudice to the defendant against the particular reasons (or lack thereof) for the delay?

Click here to view the certiorari petition.  The case was distributed for the September 29, 2020 conference.  On September 3rd, a response to the petition was requested.  The case has been redistributed multiple times.

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.