Pending Cert Petitions of Interest

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

Roof v. United States, 21-7234 (cert. petition filed Feb. 24, 2022)
(case below: 10 F.4th 314 (4th Cir.))

Questions presented:

(1)  When a competent capital defendant and his counsel disagree on whether to present mitigating evidence depicting him as mentally ill, who gets the final say?  (2) Does the Commerce Clause authorize Congress to regulate an intrastate, noneconomic, violent offense based solely on the defendant’s pre-offense uses of interstate highways, GPS navigation, the Internet, and the telephone? (3) Should federal courts assess legislation enacted under the Thirteenth Amendment using the same tests that apply to legislation enacted under the Fourteenth and Fifteenth Amendments, where the three Reconstruction Amendments share substantively-identical enforcement provisions?

Click here to view the certiorari petition.

Spencer v. Colorado, 21-1157 (cert. petition filed Jan. 26, 2022)
(case below: Colo. Ct. App. (unpublished))

Question presented:

     In Cuyler v. Sullivan, 446 U.S. 335 (1980), this Court held that a defendant alleging ineffective assistance of counsel based on a lawyer’s conflict of interest need not demonstrate outcome-determinative prejudice to obtain relief. Instead, a defendant need only show that an “actual conflict of interest adversely affected his lawyer’s performance.” Id. at 350.

     The question presented is: Does Sullivan’s standard apply only when a defense lawyer represents multiple clients with conflicting interests (as eleven jurisdictions have held), or does Sullivan apply to other conflicts—such as personal conflicts of interest (as twenty-one jurisdictions have held)?

Click here to view the certiorari petition.  The case has been distributed for the May 12, 2022 conference.

Stirling v. Bryant, 21-1044 (cert. petition filed Jan. 21, 2022)
(case below: 17 F.4th 513 (4th Cir.) (en banc), affirming 2019 WL 1253235 (D.S.C.))

Question presented:

     Respondent James Nathaniel Bryant has twice been convicted for the murder of Cpl. Dennis Lyden and twice sentenced to death. At the second trial, one potential juror disclosed a hearing impairment, but was qualified without objection and selected. The trial judge informally tested the juror’s ability to hear throughout the proceedings. When the State expressed concern, defense counsel maintained a desire to retain the juror and Bryant personally agreed. In collateral proceedings, Bryant alleged a violation of due process and ineffective assistance. The state court denied relief finding Bryant failed to show that the juror was so impaired as to have “missed material testimony,” (App. 10; 211-12), or that counsel made an unreasonable decision to retain the juror. In 28 U.S.C. § 2254 habeas review, the district court disagreed with the state court’s fact-finding and ordered resentencing. A split panel of the Fourth Circuit reversed finding mere disagreement was insufficient to show an unreasonable determination. After argument en banc, the Fourth Circuit, lacking a majority, vacated the panel opinion by an evenly divided court.

     The question presented is:

     In review of a claim fully adjudicated in state court, did the district court violate 28 U.S.C. § 2254’s deference mandate and offend the principles of finality and federalism by upsetting a capital sentence based on mere disagreement with record-supported state court fact-findings?

Click here to view the warden's certiorari petition.  The case has been distributed for the May 12, 2022 conference.

Payne v. Jackson, 21-1021 (cert. petition filed Jan. 18, 2022)
(case below: 9 F.4th 646 (8th Cir.))

Questions presented:

     A defendant seeking to prove an intellectual disability that makes him ineligible for the death penalty must prove that he has significant adaptive deficits in at least one of three broad adaptive-skill domains. Applying that requirement, Moore v. Texas held that courts may not offset deficits in one domain with strengths in another. 137 S. Ct. 1039, 1050 n.8 (2017). But it expressly left open whether courts may “consider adaptive strengths alongside adaptive weaknesses in the same adaptive-skill domain.” Id.

     Since Moore, a large majority of courts have held they may consider a defendant’s strengths in a domain to resolve whether he has deficits there overall. Yet a small minority, including a divided panel of the court of appeals below, hold strengths are irrelevant. The only evidence courts may consider in deciding whether a defendant has adaptive deficits, they maintain, are weaknesses that suggest he does.

     The question presented is:

     Whether courts may consider adaptive strengths in deciding whether a defendant is intellectually disabled and thus ineligible for the death penalty.

Click here to view the director's certiorari petition.  The case was distributed for the April 22, 2022 conference.  It was rescheduled and redistributed for the April 29, 2022 conference.

Crow v. Fontenot, 21-970 (cert. petition filed Jan. 3, 2022)
(case below: 4 F.4th 982 (10th Cir.))

Question presented:

     In 1988, an Oklahoma jury convicted Karl Fontenot in the abduction and killing of Denice Haraway. The chief evidence against Fontenot was his own confession—a confession the Oklahoma Court of Criminal Appeals found, in affirming Fontenot’s convictions, was corroborated in nine critical respects.

     In 2016, nearly two decades after his statute of limitations under the Antiterrorism and Effective Death Penalty Act had expired, Fontenot filed a federal habeas corpus petition. The State moved to dismiss as untimely, but the district court denied the State’s motion, finding both that Fontenot could pass through the actual-innocence gateway and that every one of Fontenot’s substantive claims entitled him to relief, without allowing a merits response by the State.

     The Tenth Circuit affirmed. Over a dissent, the majority held Fontenot had made a credible showing of actual innocence based on “new,” “reliable” evidence. While acknowledging a circuit split on the issue, the majority concluded that Fontenot’s evidence of alleged innocence, despite the fact that it was largely available at the time of trial, was nevertheless “new” within the meaning of this Court’s actual-innocence precedents.

     The question presented is whether “new” evidence, as referred to in Schlup v. Delo, 513 U.S. 298 (1995), and McQuiggin v. Perkins, 569 U.S. 383 (2013), means evidence that was not available at the time of trial or, under the broad reading adopted below, encompasses any evidence, including evidence known by the defendant and/or available with due diligence, not presented at trial.

Click here to view the certiorari petition.  The case was distributed for the February 18, 2022 conference.  On February 1, 2022, a response to the petition was requested.

Jones v. Hendrix, 21-857 (cert. petition filed Dec. 7, 2021)
(case below: 8 F.4th 683 (8th Cir.))

Question presented:

     Under 28 U.S.C. § 2255, federal inmates can collaterally challenge their convictions on any ground cognizable on collateral review, with successive attacks limited to certain claims that indicate factual innocence or that rely on constitutional-law decisions made retroactive by this Court. 28 U.S.C. § 2255(h). 28 U.S.C. § 2255(e), however, also allows inmates to collaterally challenge their convictions outside this process through a traditional habeas action under 28 U.S.C. § 2241 whenever it “appears that the remedy by [§ 2255] motion is inadequate or ineffective to test the legality of [their] detention.”

     The question presented is whether federal inmates who did not—because established circuit precedent stood firmly against them—challenge their convictions on the ground that the statute of conviction did not criminalize their activity may apply for habeas relief under § 2241 after this Court later makes clear in a retroactively applicable decision that the circuit precedent was wrong and that they are legally innocent of the crime of conviction.

Click here to view the certiorari petition.  The case was distributed for the January 7, 2022 conference.  On December 29, 2021, a response to the petition was requested.  The case was redistributed for the April 29, 2022 conference.

Shoop v. Cassano, 21-679 (cert. petition filed Nov. 1, 2021)
(case below: 1 F.4th 458 (6th Cir.))

Questions presented:

     August Cassano is a convicted murderer. Before his state trial, he filed a “waiver of counsel” alongside a request for the appointment of counsel. Then, three days before trial, Cassano asked the trial court: “Is there any possibility I could represent myself?” The Ohio Supreme Court held that neither the “waiver of counsel” nor the question about self-representation constituted a proper invocation of the Sixth Amendment right to self-representation. To invoke that right, a defendant must “clearly and unequivocally declare[]” his intention to proceed pro se, Faretta v. California, 422 U.S. 806, 835 (1975), and he must do so in a timely fashion, Martinez v. Court of Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152, 161 (2000). The Ohio Supreme Court determined that neither a “waiver of counsel’ filed with a request for counsel, nor a question about the possibility of self-representation, qualified as a clear and unequivocal declaration of an intent to proceed pro se. Further, it held that Cassano’s question about self-representation would have been untimely even if it had been a clear and unequivocal demand.

     The Sixth Circuit held that Cassano properly invoked his right to self-representation on both occasions and that the Ohio Supreme Court egregiously erred in holding otherwise. On that basis, it awarded habeas relief to Cassano.

     (1) Should the Court summarily reverse the Sixth Circuit’s award of habeas relief? (2) When a three-judge panel clearly errs in awarding habeas relief, does its decision raise questions important enough to justify en banc review?  (3) What constitutes a clear and timely request for self-representation?

Click here to view the warden's certiorari petition.  The case was distributed for the January 7, 2022 conference.  The record was requested on January 5, 2022.  The case has been rescheduled multiple times since then.

Andrus v. Texas, 21-6001 (cert. petition filed Oct. 15, 2021)
(case below: 622 S.W.3d 892 (Tex.Crim. App.))

Questions presented:

     This case returns to this Court after the remand ordered in Andrus v. Texas, 140 S.Ct. 1875 (2020) (per curiam).

     In Andrus, this Court determined that the “untapped body of mitigating evidence” amassed during the state habeas proceeding was “simply vast” and that counsel’s failure to investigate and present this evidence at the sentencing stage of his death penalty trial, as well as other failures, established trial counsel’s deficient performance. The Court remanded to the Texas Court of Criminal Appeals (CCA) to consider whether Andrus had been prejudiced by this deficient performance.

     Explicitly disagreeing with this Court about critical evidence, the CCA, in a closely divided 5-4 decision, concluded that Andrus was not prejudiced.

     The Questions Presented are:

     (1) On remand, did the Texas court reject this Court’s conclusions in Andrus v. Texas, 140 S.Ct. 1875 (2020), which were amply supported by the habeas and trial records, and did the Texas court disregard this Court’s express guidance for conducting a prejudice analysis pursuant to Strickland v. Washington, 466 U.S. 688 (1984)?
     (2) Does the Texas court’s failure to adhere to this Court’s decision conflict with our constitutional system of vertical stare decisis and create widespread confusion regarding the proper legal standard that courts must use in assessing whether the Sixth Amendment right to effective assistance of counsel is violated in death-penalty cases?

Click here to view the certiorari petition.  Numerous amicus briefs have been filed in support of Andrus.  On December 14, 2021, the record was requested.  The case has been distributed for conference and rescheduled several times.

Thomas v. Lumpkin, 21-444 (cert. petition filed Sept. 20, 2021)
(case below: 995 F.3d 432 (5th Cir.))

Questions presented:

     Under this Court’s clearly established precedent, was Petitioner Andre Thomas—an African American man who, during a schizophrenic episode, killed his estranged white wife, their son, and her daughter— denied his constitutional rights:

     (1) to be tried by an impartial jury, when three jurors at Thomas’s capital trial expressed opposition to people of different races marrying and having children—writing on their voir dire questionnaires that such relationships are “against God’s will,” that we should “stay with our Blood Line,” and that the children of interracial relationships are denied “a specific race to belong to”—and when the jurors never disclaimed those views or said they could set them aside to consider Petitioner’s mental illness and make the individualized sentencing judgment required by the Constitution; and
      (2) to the effective assistance of counsel, when defense counsel did not object to, or seek to strike, any of those three jurors, and failed to ask two of them a single question about their bias.

Click here to view the certiorari petition.  The case has been distributed for conference and rescheduled multiple times.

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.