The following pending petitions involve issues of interest to capital habeas litigators:
Broadnax v. Texas, 25-939 (cert. petition filed Feb. 4, 2025)
(case below: 2025 WL 3095921 (Tex. Crim. App.))
Questions presented:
1. Whether the State’s use in a capital sentencing proceeding of rap lyrics composed by a Black defendant to argue to a nearly all-White jury that the Black defendant must be a violent and dangerous person because he wrote the rap lyrics, violates due process, fundamental fairness, and equal protection under the Eighth and Fourteenth Amendments to the U.S. Constitution.
2. Whether the State’s introduction of a state-employed and out-of-court expert’s serology report and findings at trial, via the testimony of another expert who testified to and relied upon the absent expert’s out-of-court statements as a basis of the second expert’s own findings, violates the Sixth Amendment to the U.S. Constitution under Smith v. Arizona, 602 U.S. 779 (2024).
Whitton v. Dixon, 25-580 (cert. petition filed Nov. 12, 2025)
(case below: 2025 WL 1305158 (11th Cir.) (up))
Questions presented:
Petitioner established below, and the Eleventh Circuit agreed, that petitioner’s capital murder trial was tainted by a Giglio violation. Ordinarily, a petitioner who makes such an extraordinary showing of prosecutorial misconduct would be entitled to habeas relief under 28 U.S.C. § 2254.
But the Eleventh Circuit deemed the violation immaterial. The Eleventh Circuit held that the Florida Supreme Court reasonably concluded that, even without the Giglio-tainted testimony, the evidence against petitioner was “overwhelming.” The Eleventh Circuit reached that determination almost entirely on the basis of evidence that Florida developed a decade after petitioner’s trial and that flatly contradicted unrebutted evidence presented by the defense at the actual trial.
The decision below opens a direct circuit split with the Second, Sixth, and Tenth Circuits, United States v. Jean-Baptiste, 166 F.3d 102 (2d Cir. 1999); Apanovitch v. Bobby, 648 F.3d 434 (6th Cir. 2011); Browning v. Trammell, 717 F.3d 1092 (10th Cir. 2013), and the North Carolina Supreme Court, State v. Best, 376 N.C. 340, 852 S.E.2d 191 (2020), on a question of exceptional importance. It is also in deep tension with this Court’s recent decision in Glossip v. Oklahoma, 604 U.S. 226 (2025).
The questions presented are:
1. Whether in determining whether a constitutional error had a prejudicial effect on the outcome of a trial a court must consider only that evidence that was presented to the jury at the trial.
2. Whether the prejudice from the Giglio violation in this case met the standards for relief under Giglio and Brecht.
Fields v. Plappert, 23-6912 (cert. petition filed March 4, 2024 and denied June 10, 2024; rehearing petition filed July 31, 2025)
(case below: 86 F.4th 218 (6th Cir.) (en banc))
Question presented:
This Court has held that a jury’s verdict must rest on the evidence developed at the trial. Turner v. Louisiana, 379 U.S. 466, 472-73 (1965). Yet during deliberations in this capital case, the jury—to test the Commonwealth’s theory of guilt—conducted an experiment in the jury room involving extrinsic evidence and then considered and relied on that extrinsic evidence to convict Samuel Fields. The extrinsic evidence went to the central issue in the case: whether someone other than Fields could have committed the murder of Bess Horton.
Under 28 U.S.C. § 2254(d)(1), a petitioner may obtain habeas corpus relief from a state-court judgment if the state court decision rejecting a constitutional claim was contrary to or unreasonable application of clearly established federal law. In this case, the warden concedes that “it is clearly established that jurors must decide a case based on the evidence at trial.” Warden’s CA6 Br. at 21. Every federal judge who has considered this habeas case, including the entire Sixth Circuit en banc panel, likewise has recognized that a jury’s verdict must rest on the evidence developed at the trial. Nonetheless, a majority of the en banc Sixth Circuit determined—in contrast to decisions of other courts of appeals—that this rule does not satisfy § 2254(d)(1)’s “clearly established law” requirement because (1) the rule is too general and (2) this Court has not applied the rule to a fact pattern involving a jury experiment.
This case thus presents the following questions:
Does this Court’s rule requiring that a verdict be based only on the evidence presented in the courtroom at trial satisfy 28 U.S.C. § 2254(d)(1)’s “clearly established” requirement, and if so, can a jury’s consideration of and reliance on extrinsic evidence as part of a jury experiment violate this rule?
The rehearing petition relies on the Supreme Court's decision in Andrew v. White, 145 S.Ct. 75 (2025).