Pending Cert Petitions of Interest

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

Skipper v. Byrd, 19-992 (cert. petition filed Feb. 5, 2020)
(case below: 940 F.3d 248 (6th Cir.))

Question presented:

   In Lafler v. Cooper, 566 U.S. 156 (2012), the Court held that a defendant has the right to effective assistance of counsel in considering whether to accept a plea offer—even if the defendant was later convicted after a fair trial. The Lafler Court cautioned, however, that this right exists only “[i]f a plea bargain has been offered . . . . If no plea offer is made, . . . the issue raised here simply does not arise.” Id. at 168 (emphasis added). The Sixth Circuit, with one judge strongly dissenting, nonetheless held here that the prisoner, who was convicted after a fair trial, was denied his Sixth Amendment right to effective assistance of counsel because his counsel failed to pursue plea negotiations—that is, where no “plea offer [was] made.” Id. The court declined to explain how the state courts, in remedying this purported constitutional violation, could determine what hypothetical plea offer he would have received and whether a state court would have accepted the hypothetical plea offer. The question presented is:

   Does the Sixth Amendment right to effective as-sistance of counsel include the right to a plea offer that was never made?

Click here to view the warden's certiorari petition.

Farrar v. Williams, 19-953 (cert. petition filed Jan. 27, 2020)
(case below: 924 F.3d 1126 (10th Cir.))

Question presented:

   The question presented, which has divided fourteen federal courts of appeal and state high courts, is:

   Whether the Due Process Clause is violated when the prosecution relies on material, perjured testimony to secure a conviction but did not know the testimony was perjured until after the trial, as six courts have held, or whether the prosecution’s contemporaneous knowledge of the perjured testimony is required, as eight courts have held.

Click here to view the certiorari petition.

Raulerson v. Warden, 19-941 (cert. petition filed Jan. 24, 2020)
(case below: 928 F.3d 987 (11th Cir.))

Question presented:

   Georgia is the only state in the Union that requires a capital defendant to prove intellectual disability (formerly called mental retardation) by a “beyond a reasonable doubt” standard. Discovery in the instant federal habeas proceeding established that in the thirty years during which Georgia has  maintained this unique burden of proof, not a single capital defendant has been able to establish intellectual disability in a contested case. This case presents the following question:

   Whether this Court’s unanimous holding in Cooper v. Oklahoma, 517 U.S. 348 (1996), clearly established that Georgia could not impose the burden of requiring proof of intellectual disability beyond a reasonable doubt, particularly when state supreme courts in Indiana, Tennessee, and other states recognized that Cooper would not allow their states to require a defendant to prove intellectual disability even by a lower standard of clear and convincing evidence.

Click here to view the certiorari petition.

Andrus v. Texas, 18-9674 (cert. petition filed June 12, 2019)
(case below: Ex parte Andrus (Tex. Crim. App.) (unpublished))

Question presented:

Does the standard for assessing ineffective assistance of counsel claims, announced in Strickland v. Washington, fail to protect the Sixth Amendment right to a fair trial and the Fourteenth Amendment right to due process when, in death-penalty cases involving flagrantly deficient performance, courts can deny relief following a truncated “no prejudice” analysis that does not account for the evidence amassed in a habeas proceeding and relies on a trial record shaped by trial counsel’s ineffective representation?

Click here to view Andrus's certiorari petition.  The case was originally distributed for the October 1, 2019 conference.  On August 14, 2019, the record was requested.  The case was subsequently distributed for the November 1, 8, 15, 22, 2019 conferences, the December 6 and 13, 2019 conferences, the January 10, 17, and 24, 2020 conferences, and the February 21 and 28, 2020 conferences.