Pending Cert Petitions of Interest

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

Missouri Dep't of Corrs v. Finney, 23-203 (cert. petition filed Aug. 31, 2023)
(case below: (Mo. App.) (unpublished))

Questions presented:

     During voir dire in an employment-discrimination suit involving a lesbian plaintiff, plaintiffs attorney asked several questions about whether jurors held "conservative Christian" beliefs. When some said yes, counsel asked the court to strike them for cause, arguing, "I don't think that you can ever rehabilitate yourself, no matter what you turn around and say after that." The court disagreed, explicitly finding that the jurors "were very clear in that they could be absolutely fair and impartial" and that they believed "everyone needs to be treated equally." But the court struck them anyway for their religious beliefs "to err on the side of caution." On appeal, the court agreed the jurors were struck because of their religious "views," but held that the strike was not unlawful because it was not based on religious "status."

     1. This Court has interpreted the Fourteenth Amendment to forbid relying on stereotypes about race and sex to strike jurors. Does the Fourteenth Amendment also prohibit relying on stereotypes about religious views to strike jurors, as 5 courts have held, or not, as 5 other courts (including below) have held?

     2. Is a Batson-type violation structural, as at least 18 courts have held, or is it subject to harmless-error review, as the court below held?

     3. In the context of jury selection, does the Fourteenth Amendment protect both religious status and religious belief, as 4 courts have held; religious status only, as 3 courts have held (including the court below); or neither, as 2 courts have held?

Click here to view the certiorari petition.

Hamm v. Smith, 23-167 (cert. petition filed Aug. 17, 2023)
(case below: 67 F.4th 1335 (11th Cir.))

Questions presented:

(1)  Whether Hall and Moore mandate that courts deem the intellectual-functioning prong satisfied when an offender’s lowest IQ score, decreased by one standard error of measurement, is 70 or below. (2) Whether the Court should overrule Hall and Moore or at least clarify that they permit courts to consider multiple IQ scores and the probability that an offender’s IQ does not fall at the bottom of the lowest IQ score’s error range.

Click here to view the certiorari petition.  Click here to view Brief of Idaho and 13 Other States as Amici Curiae in Support of Petitioner.

Glossip v. Oklahoma, 22-7466 (cert. petition filed May 4, 2023)
(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.).

Click here to view the certiorari petition.  On May 5, 2023, the Supreme Court granted Glossip's application for stay of execution pending disposition of this petition, and the petition filed in 22-6500.

Thornell v. Jones, 22-982 (cert. petition filed April 6, 2023)
(case below: 52 F.4th 1104 (9th Cir.))

Question presented:

     Over thirty years ago, Respondent Danny Lee Jones beat Robert Weaver to death and also beat and strangled Weaver’s 7-year-old daughter, Tisha, to death, for which he was convicted and sentenced to death. The district court denied habeas relief following an evidentiary hearing on Jones’s ineffective-assistance-of-sentencing-counsel claims. But a Ninth Circuit panel reversed the district court, giving no deference to the district court’s detailed factual findings. Judge Mark Bennett authored a nine-judge dissent from the denial of en banc rehearing.

     The Question Presented is:

     Did the Ninth Circuit violate this Court’s precedents by employing a flawed methodology for assessing Strickland prejudice when it disregarded the district court’s factual and credibility findings and excluded evidence in aggravation and the State’s rebuttal when it reversed the district court and granted habeas relief?

Click here to view the certiorari petition.

Glossip v. Oklahoma, 22-6500 (cert. petition filed Jan. 3, 2023)
(case below: unpiblished (Okla.Crim.App.))

Questions presented:

Petitioner, Richard Glossip, faces execution on February 16, 2023 for a conviction premised on the State’s theory that he hired Justin Sneed, who is the undisputed actual killer, to kill the owner of a motel where Mr. Glossip was the manager. Sneed’s testimony was the only evidence of any agreement, and his testimony, for which he received assurance he would not face a death sentence, was critical to this case where, as one federal judge put it, “the evidence of guilt was not overwhelming.”

At Mr. Glossip’s first trial, his attorney failed to undertake even rudimentary efforts in his defense, resulting in a full reversal. Chief among the failings was a failure to impeach Sneed with evidence he had been coached to implicate Glossip, whom the interviewing detective brought up six times before Sneed implicated him in the murder.

At retrial, Mr. Sneed was impeached to some extent about having been led to identify Mr. Glossip and about inconsistencies in his account of the murder.

Recently, in post-conviction proceedings, Mr. Glossip learned that prior to the retrial, Sneed had expressed his desire to “recant” and that immediately prior to meeting with Sneed during the second trial, the prosecutor wrote in a memo that the “biggest problem” with the case would be if Sneed repeated his initial statement to police and that she needed to “get to him” before he testified.

     This petition presents the following questions:

     1. Whether a court may require a defendant to demonstrate by clear and convincing evidence that no reasonable fact finder would have returned a guilty verdict to obtain relief for a violation of Brady v. Maryland, 373 U.S. 83 (1963).

     2.  Whether suppressed impeachment evidence of the State’s key witness is per se non-material under Brady v. Maryland because that witness’s credibility had been otherwise impeached at trial.

Click here to view the certiorari petition.  The case has been rescheduled for conference multiple time.  On May 5, 2023, the Supreme Court granted Glossip's application for stay of execution pending disposition of this petition, and the petition filed in 22-7466.