Pending Cert Petitions of Interest

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

Brown v. Louisiana, 22-77 (cert. petition filed July 25, 2022)
(case below: ___ So.3d ___ (La.))

Question presented:

     Where a defendant denies participating in a particular criminal act, is another person’s confession stating that he and someone else committed the act— without mentioning the defendant—favorable and material evidence under Brady v. Maryland, 373 U.S. 83 (1963)?

Click here to view Brown's certiorari petition.

Shoop v. Cunningham, 21-1587 (cert. petition filed June 16, 2022)
(case below: 23 F.4th 636 (6th Cir.))

Questions presented:

     1. AEDPA generally prohibits courts from awarding habeas relief to state prisoners. It lifts that prohibition with respect to prisoners in custody because of a state-court ruling that was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. §2254(d)(1). Did the Sixth Circuit err by granting habeas relief based on an alleged misapplication of its own circuit precedent?

     2. If the requirements for a federal evidentiary hearing are otherwise satisfied, but Federal Rule of Evidence 606(b)(1) forbids considering the only evidence supporting an evidentiary hearing, must a court hold the hearing regardless?

Click here to view the certiorari petition.

San Bernardino County District Attorney v. Cooper, 21-1512 (cert. petition filed May 31, 2022)
(case below: 18 F.4th 857 (9th Cir.))

Questions presented:

1. Whether the United States Court of Appeals for the Ninth Circuit improperly denied Petitioners intervention in death penalty litigation by deviating both from this Court’s precedent and that of the circuit.

2. Whether a state governor may manipulate the federal courts in order to thwart imposition of state law indefinitely, both by other state constitutional officers and by any successor in the office of governor.

Click here to view the certiorari petition.

Burr v. Jackson, 21-8016 (cert. petition filed May 26, 2022)
(case below: 19 F.4th 395 (4th Cir.))

Question presented:

Where the State withholds the statement of a critical witness from the state court during the postconviction adjudication of a claim under Brady v. Maryland, and does not produce the statement until years later during federal habeas proceedings under 28 U.S.C. §2254, should the federal court be required to conduct a de novo review of the Brady claim, giving no deference to the state court’s findings related to this issue, and including relevant evidence developed during federal habeas proceedings?

Click here to view the certiorari petition.

Tyler v. Vannoy, 21-1357 (cert. petition filed April 14, 2022)

Questions presented:

1. Where a capital defendant objected to his attorney’s concession of guilt, does the explicit text of the Sixth Amendment and longstanding right to counsel jurisprudence circumvent the Teague bar and require the application of McCoy to cases on collateral review?

2. Whether McCoy announced a substantive rule that should be applied retroactively to criminal defendants who were subjected to conviction without being afforded their constitutional right to counsel?

3. Whether the Griffith rather than Teague standard should apply to determine the retroactive application of McCoy, where initial review collateral claims are not final after direct review?

Click here to view the certiorari petition.

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.

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.  On June 30, 2022, the record was requested.