Pending Cert Petitions of Interest

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

Burke v. Washington, 20-8312 (cert. petition filed June 9, 2021)
(case below: 478 P.3d 1096 (Wash.))

Question presented:

Does the Confrontation Clause of the Sixth Amendment prohibit a Sexual Assault Nurse Examiner from testifying about statements made during a forensic examination by an adult sexual assault complainant who is unavailable to testify at trial and has not previously been subjected to cross-examination? 

Click here to view the certiorari petition.

Thomas v. Payne, 20-7480 (cert. petition filed March 12, 2021)
(case below: 960 F.3d 465 (8th Cir.))

Questions presented:

     The district court vacated Petitioner’s death sentence because his trial counsel rendered ineffective assistance. On appeal, Respondent contested only the district court’s resolution of the merits. But the Eighth Circuit reversed on the basis of a procedural defense that Respondent abandoned on appeal. Specifically, the Eighth Circuit held that “bare bones, boilerplate allegations” of ineffectiveness in state court did not lead to a default that may be excused under Martinez v. Ryan, 566 U.S. 1 (2012). The questions presented are:

1. Whether Wood v. Milyard, 566 U.S. 463 (2012), prohibits a court of appeals from sua sponte raising a habeas defense that a state abandons on appeal.
2. Whether opportunity to object to an appellate court’s actions in a rehearing petition satisfies this Court’s conditions for sua sponte adjudication of habeas defenses. See Wood and Day v. McDonough, 547 U.S. 198 (2006).
3. Whether fair presentation of a federal habeas claim requires a petitioner to inform the state courts of the facts that support the claim.

Click here to view the certiorari petition.  The case has been distributed for the September 27, 2021 conference. 

Valentine v. Phillips, 20-1246 (cert. petition filed March 5, 2021)
(case below: 826 Fed.App'x. 447 (6th Cir.))

Questions presented:

     Respondent Johnny Phillips was convicted of wanton murder for shooting Phillip Glodo in the back of the head. Phillips filed a petition for federal habeas relief in district court claiming the state violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to provide in discovery an autopsy x-ray of Glodo’s skull. The district court conducted an evidentiary hearing to determine whether the x-ray was favorable and material to Phillips’s defense and therefore subject to disclosure under Brady. Two expert witnesses testified at the hearing about the significance of the x-ray. Phillips’s expert was Larry Dehus, a forensic scientist and ballistics expert, and the Warden’s expert was Dr. Jennifer Schott, the medical examiner who conducted Glodo’s autopsy. The district court did not find Dehus’s testimony about the significance of the x-ray reliable, and chose instead to rely on Dr. Schott’s testimony. Based upon its findings, the district court rejected Phillips’s claim that the autopsy x-ray was favorable and material under Brady.

     A divided panel of the United States Court of Appeals for the Sixth Circuit reversed the district court, giving no meaningful deference to the district court’s expert witness credibility determination. And, it adopted an entirely new standard, holding that the district court should have credited the testimony of Phillips’s expert merely because that testimony was not “blatantly self-serving or dishonest.” Phillips v. Valentine, 826 F. App’x 447, 460 (6th Cir. 2020). Applying that novel standard, the Sixth Circuit found that the autopsy x-ray was in fact favorable and material to Phillips’s defense, and therefore should have been disclosed to Phillips in discovery.  The Sixth Circuit reached this conclusion based on nothing more than the expert testimony that the district court rejected as unreliable.

     The questions presented are as follows: 

     (1) Did the Sixth Circuit violate Fed. Rule Civ. P. 52(a)(6) when it failed to apply the proper, heightened and deferential standard to the district court’s expert witness credibility determination?
     (2) Did the Sixth Circuit usurp the district court’s expert witness gatekeeping function when it held that the district court should have credited the testimony of Phillips’s expert—and granted Phillips’s petition—simply because that testimony was not blatantly self-serving or dishonest?

Click here to view the certiorari petition.  The case has been distributed for the September 27, 2021 conference.

Canales v. Lumpkin, 20-7065 (cert. petition filed January 28, 2021)
(case below:  966 F.3d 409 (5th Cir.))

Questions presented:

     In Mr. Canales’s Texas capital habeas corpus case, the U.S. Court of Appeals for the Fifth Circuit first ruled in 2014 that his trial counsel rendered deficient penalty phase performance under the standard of a “reasonable probability that at least one juror would have struck a different balance.” Wiggins v. Smith, 539 U.S. 510, 537 (2003), quoted in Canales v. Stephens, 765 F.3d 551, 570-71 (5th Cir. 2014). The case, which is not governed by 28 U.S.C. § 2254(d)(1) deference, returned to the district court for a de novo determination of prejudice. Despite the presentation of a welter of, as the district court admitted, “compelling” mitigating evidence that Petitioner’s jury had not heard, the district court did not find prejudice.

     In the decision below, a new Fifth Circuit panel affirmed the denial of prejudice in a 2-1 decision—also not governed by § 2254(d)(1) deference—by distinguishing the dissenting opinion’s application of the foregoing Wiggins standard, and holding that Harrington v. Richter, 562 U.S. 86 (2011), “established a substantial likelihood standard for evaluating prejudice” that Petitioner did not meet. Canales v. Davis, 966 F.3d 409, 413 (5th Cir. 2020). The majority opinion below thereby articulates the Fifth Circuit’s split from its sister circuits in interpreting Richter to have established a greater burden for petitioners than the longstanding Sixth Amendment standard for penalty phase relief recently restated in Andrus v. Texas, 590 U.S. __, 140 S. Ct. 1875, 1886 (2020) (per curiam). In assessing Petitioner’s evidence, the panel majority, over vigorous dissent, failed to meaningfully consider the difference between what the jury heard and the ultimate “totality of available mitigating evidence.” Wiggins, 539 U.S. at 534.

     The questions presented are:

1. For penalty phase ineffective assistance of counsel violations, has Richter “established a substantial likelihood standard for evaluating prejudice” that exceeds the Wiggins standard of a “reasonable probability that at least one juror would have struck a different balance” on whether to punish by death?
2. Did the Fifth Circuit’s failure to “reweigh the evidence in aggravation against the totality of available mitigating evidence” conflict with Wiggins and Andrus?

Click here to view the certiorari petition.  The case has been redistributed for conference numerous times.