Pending Cert Petitions of Interest

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

Moore v. Texas, 18-443 (cert. petition filed October 4, 2018)
(case below: ___ S.W.3d ___ (Tex.Crim.App.))

Questions presented:

(1) Whether the Eighth Amendment and this Court’s decision in Moore v. Texas, 137 S. Ct. 1039 (2017) prohibit relying on non-clinical criteria and lay stereotypes, rather than current medical standards, to determine whether a capital defendant is intellectually disabled.  (2) Whether it violates the Eighth Amendment to proceed with an execution when the prosecutor and the defendant both agree that the defendant is intellectually disabled and may not be executed.

Click here to view Moore's certiorari petition.  On November 7, 2018, the Texas Attorney General moved to intervene as a respondent.  Amici Curiae supporting Moore include American Psychological Association, American Psychiatric Association, American Academy of Psychiatry and the Law, National Assocation of Social Workers, National Assocation of Social Workers Texas Chapter, The Constitution Project, American Bar Association, and assorted former government officials.  The case was distributed for the December 7, 2018 conference.  It was redistributed for the January 4, 2019 conference.

Mathena v. Malvo, 18-217 (cert. petition filed August 16, 2018)
(case below: ___ F.3d ___ (4th Cir.))

Question presented:

     In Miller v. Alabama, 567 U.S. 460 (2012), this Court held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’ ” Id. at 465. Four years later, in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the Court held that “Miller announced a substantive rule of constitutional law” that, under Teague v. Lane, 489 U.S. 288 (1989), must be given “retroactive effect” in cases where direct review was complete when Miller was decided. Montgomery, 136 S. Ct. at 736.

     The question presented is:

     Did the Fourth Circuit err in concluding—in direct conflict with Virginia’s highest court and other courts—that a decision of this Court (Montgomery) addressing whether a new constitutional rule announced in an earlier decision (Miller) applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question?

Click here to view the warden's certiorari petition.  The case has been distributed for the November 30, 2018 conference.  It was then redistributed for the December 7, 2018 and January 4, 2019 conferences.

Shoop v. Hill, 18-56 (cert. petition filed July 6, 2018)
(case below: 881 F.3d 483 (6th Cir.))

Question presented:

     In Atkins v. Virginia, 536 U.S. 304 (2002), the Court held that the Eighth Amendment bars the execution of the intellectually disabled, but left it to the States to decide who qualifies for this limitation. Id. at 317. After Atkins, the Ohio Supreme Court adopt-ed a common clinical definition to identify those with intellectual disabilities. Its definition included three elements: “(1) significantly subaverage intellectual functioning, (2) significant limitations in two or more adaptive skills, such as communication, self-care, and self-direction, and (3) onset before the age of 18.” State v. Lott, 779 N.E.2d 1011, 1014 (Ohio 2002).

     In this case, relying on the clinical judgments of two experts, an Ohio trial court rejected Respondent Danny Hill’s Atkins claim because he did not meet the second Lott element (adaptive-skills deficits). In 2008, an Ohio appellate court affirmed. A decade later, the Sixth Circuit held that the state appellate court unreasonably applied Atkins within the meaning of the Antiterrorism and Effective Death Penalty Act of 1996. To reach this result, the circuit court repeatedly invoked Moore v. Texas, 137 S. Ct. 1039 (2017)—a case that was decided years after the Ohio appellate decision and that criticized a state court for allowing lay perceptions to trump clinical judgments.

     The question presented is:

     Did the Sixth Circuit properly use the Moore decision from 2017 to find that an Ohio court unreasonably applied Atkins in 2008, even though the Ohio court relied on the clinical judgments of experts to find that Hill was not intellectually disabled?

Click here to view the warden's certiorari petition.  The case was distributed for the October 5, 2018 conference.  It has been redistributed for the October 12, 26, November 2, 9, 18, , December 7, 2018 and January 4, 2019 conferences.

White v. Kentucky, 17-9467 (cert. petition filed June 18, 2018)
(case below: ___ S.W.3d ___ (Ky.))

Questions presented:

I. Intellectual Disability     

     Two months before petitioner's case went to trial, this Court decided Hall v. Florida, 134 S.Ct. 1986 (2014), forbidding reliance on a "single factor" in determining whether a defendant is intellectually disabled (ID), mandating "conjunctive and interrelated assessment" of intellectual and adaptive functioning, and mandating application of prevailing diagnostic criteria contained in the latest American Association on Intellectual and Developmental Disabilities [AAIDD] manual and Diagnostic and Statistical Manual [DSM]-5. Petitioner presented evidence of sub-average intellectual functioning from when he was 12, including two IQ scores--73 and 76--and evidence demonstrating deficits in adaptive functioning.  Five months before petitioner's case was decided on appeal, this Court rendered Moore v. Texas, 137 S.Ct. 1039 (2017), requiring focus on a defendant's weaknesses rather than his strengths, and rejecting the use of stereotypical lay criteria for determining the adaptive functioning prong of ID.
     In clear violation of Hall, Moore, and the Eighth Amendment, the Kentucky Supreme Court found petitioner eligible for the death penalty by 1) relying on a single factor (his IQ score of 76), 2) failing to conduct a "conjunctive and interrelated" assessment of both prongs of ID, 3) refusing to apply prevailing clinical criteria contained in the AAIDD manual and DSM-5, and 4) focusing on strengths and lay stereotype in evaulating adaptive behavior.
     Did the Kentucky Supreme Court violate the Eighth Amendment as interpreted in Hall and Moore when it denied White the opportunity to present evidence supporting the "conjunctive and interrelated" assessment of both prongs of ID, ignoring an IQ score of 73 presented to the trial court, ignoring a possible Flynn effect and refusing to look past White's other IQ score of 76 adjusted for standard error of measurement?  Should this Court grant certiorari, vacate, and remand to allow the Kentucky Supreme Court to reconsider and apply Hall and Moore to correct clear Eighth Amendment violations?

II.  Search and Seizure

     A seizure for a traffic violation justifies a police investigation of that violation.  Rodriguez v. United States, 135 S.Ct. 1609, 1614 (2015).  However, "[t]he scope of the detention must be carefully tailored to its underlying justification."  Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983).  Because addressing the infraction is the purpose of the stop, it may "last no longer than is necessary to effectuate th[at] purpose."  Id.  An officer's investigation of matters unrelated to the justification for the traffic [stop] are only lawful if those inquiries do not measurably extend the duration of the stop.  Arizona v. Johnson, 555 U.S. 323, 333 (2009).  In the case below, the Kentucky Supreme Court ignored this foundational requirement, finding that the petitioner was legally removed from the car and frisked while failing to address the fact that the officers involved apparently abandoned their investigation of the traffic violation justifying the initial stop.
The question presented is:
     Does it violate the Fourth Amendment when officers abandon their duty to address a traffic violation which justified a pretextual stop in order to investigate a passenger?

Click here to view White's certiorari petition.  The case was originally distributed for the September 24, 2018 conference.  On September 6, 2018, the record was requested.  The case has been redistributed for the November 30, December 7, 2018, and January 4, 2019 conferences.   

Lance v. Sellers, 17-1382 (cert. petition filed March 29, 2018)
(case below: unpublished (11th Cir.))

Questions presented:

     In a series of decisions, this Court has provided guidance to lower courts evaluating an ineffective assistance of counsel claim in a capital case where trial counsel failed to provide effective representation during the sentencing phase. Lower courts have struggled to implement that guidance, especially when evaluating whether, as a result of the inadequate representation, the defendant was denied his constitutional right to an individualized determination of culpability. This petition presents an important question of whether the failure to conduct any investigation or offer any evidence of a capital defendant’s significant mental health impairments at the penalty phase can be nonprejudicial. The questions presented are:

     (1) Whether it was objectively unreasonable for the Georgia Supreme Court to find no prejudice resulted from the failure of defense counsel to conduct any investigation and to present any mitigating evidence, including readily available and undisputed expert testimony that the defendant suffered from significantly diminished mental capacity constituting dementia at the time of the crime, when these failures deprived the jury of mitigating evidence that was essential to an individualized determination of the defendant’s culpability. (2) Whether prejudice must be presumed in a death penalty case when defense counsel fails to conduct any investigation of potential mitigating evidence, fails to offer any evidence during the penalty phase, and fails to subject the state’s penalty phase witnesses to any cross-examination, thereby undermining the adversarial system and depriving the defendant and the fact-finder of any meaningful opportunity to conduct an individualized determination of the defendant’s culpability.

Click here to view the certiorari petition.  The case was distributed for the June 7, 2018 conference.  On June 1, the record was requested.  The case has been redistributed for the September 24, October 5, 12, 26, November 2, 9, 16, 30, December 7, 2018 and January 4, 2019 conferences.

Jones v. Oklahoma, 17-6943 (cert. petition filed Nov. 28, 2017)
(case below: unpublished order (Okla. Crim. App.))

Questions presented:

     Julius Jones, an African American prisoner, was sentenced to death in the State of Oklahoma for the 1999 shooting-death of Paul Howell, a white male, in Edmond, Oklahoma.

     In 2017, after the conclusion of Mr. Jones’ state and federal collateral proceedings, the results of a statistical study on race and capital sentencing patterns in Oklahoma were first published. The study found that non-whites accused of killing white males are statistically more likely to receive a sentence of death in Oklahoma on that basis alone, and controlling for other aggravating circumstances.

     Under Oklahoma’s post-conviction statute, a death-sentenced prisoner has just sixty days to file a successor post-conviction application based upon newly-discovered evidence. In compliance with this rule, Mr. Jones filed a post-conviction application in the Oklahoma Court of Criminal Appeals (“OCCA”) wherein he argued that this study constituted newly-discovered evidence that he was convicted and sentenced to death in violation of his rights under the Oklahoma Constitution, as well as under the Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution. The OCCA denied Mr. Jones’ successor application on the basis of a state procedural bar.

     The questions presented by this case are the following:  (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital sentencing determinations proves that Mr. Jones’ death sentence is unconstitutional under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution?  (2)  Whether Oklahoma’s capital post-conviction statute, specifically Okla. Stat. Ann. tit. 22, § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in Mr. Jones’ case, denies Mr. Jones an adequate corrective process for the hearing and determination of his newly-available federal constitutional claim in violation of his rights under the Fourteenth Amendment’s Due Process and Equal Protection Clauses?

Click here to view the certiorari petition.  (The same questions have been presented in Wood v. Oklahoma, 17-6891.)  The case was originally distributed for the March 2, 2018.  It was then redistributed for the March 16, 23, 29, April 13, 20, 27, May 10, 17, 24, 31, June 7, 14, 21. September 24, October 5, 12, 26, November 2, 9, 16, 30, December 7, 2018 and January 4, 2019 conferences.