Pending Cert Petitions of Interest

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

Lacaze v. Louisiana, 17-1566 (cert. petition filed May 17, 2018)
(case below: ___ So.3d ___ (La. March 13, 2018)

Questions presented:

     (1) The undisputed facts show that Orleans Parish District Court Judge Frank Marullo was a witness in the police investigation relating to the likely murder weapon in this case. Judge Marullo was alleged to have signed the order that released a 9mm gun from police evidence to Petitioner’s  codefendant—a gun that was likely then used to murder a police officer and two civilians. During the investigation, Judge Marullo denied signing the order and maintained that his signature had been forged. Judge Marullo subsequently presided over Petitioner’s trial and chose not to disclose the  investigation, his involvement in it, or his alleged association with the weapon. He continued his nondisclosure even though the release of the weapon was relevant to Petitioner’s defense.

     Following this Court’s GVR in light of Rippo v. Baker, 137 S. Ct. 905, 907 (2017) (summarily reversing denial of judicial recusal claim), the Louisiana Supreme Court acknowledged that Judge Marullo had an objectively ascertainable self-interest in avoiding disclosure of his alleged connection to the likely murder weapon: “Realistically, the average judge would be vigilant to avoid being unjustly associated with any wrongdoing surrounding the release of the possible murder weapon” and “harbor[] some sensitivity about” that association. But the court concluded a judge may constitutionally preside despite such self-interest in the case before him—without even disclosing it—and limited this Court’s recusal standard to cases involving bias specifically “for or against” a party. 

     The first question presented is whether Judge Marullo’s failure to recuse, or even disclose, violated Petitioner’s rights under the Due Process Clause.

     In McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984), this Court announced a test for obtaining a new trial where it is learned that a juror failed to disclose a material fact at voir dire: “[A] party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.” Id. at 556. In this case concerning the murder of a police officer and two civilian siblings, two empaneled jurors—each asked multiple times about any connections to law enforcement—withheld that they were, in fact, career-long law enforcement employees. One was present in the 911 dispatch room at the time of the call for this particular murder and personally attended the victim officer’s funeral. A third juror, asked multiple times if she had relatives who were victims of violent crime, did not disclose that her own two siblings had been murdered.

     As Respondent previously conceded before this Court, lower courts are entrenched in a deep split on the second and third questions raised by this case:

     (2) Under McDonough, does demonstrating “a valid basis for a challenge for cause” require a showing that the juror would have been subject to mandatory disqualification or that a reasonable judge would have granted a challenge for cause?

     (3) Does the McDonough test apply only to a juror’s deliberate concealment or does it also apply to misleading omissions?

Click here to view the certiorari petition.  The case was distributed for the June 21, 2018 conference.

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, 2018 conference.

Williams v. Louisiana, 17-1241 (cert. petition filed March 2, 2018)
(case below: unpublished)

Questions presented: 

(1) Whether exculpatory evidence that is inadmissible can be material under Brady v. Maryland, 373 U.S. 83 (1963); (2) Whether a court evaluating the materiality of suppressed evidence under Brady against a confession should take into account a post-trial judicial finding that the defendant was an  intellectually disabled child.

Click here to view the certiorari petition.  The case was distributed for the April 27, 2018 conference.  A response was requested on May 16, 2018.

Evans v. Mississippi, 17-7245 (cert. petition filed Dec. 27, 2017)
(case below: 226 So.3d 1 (Miss.))

Question presented:

Does the death penalty in and of itself violate the Eighth Amendment in light of contemporary standards of decency and the geographic arbitrariness of its imposition.

Click here to view Evans' certiorari petition.  The case was distributed for the Feb. 23, 2018 conference.  It was then redistributed for the March 2, 16, 23, 29, April 13, 20, 27, May 10, 17, 24, 31, June 7, 14 and 21 conferences.    

Ulbricht v. United States, 17-950 (cert. petition filed Dec. 22, 2017)
(case below: 858 F.3d 71 (2nd Cir.))

Questions presented:

(1) Whether the warrantless seizure of an individual’s Internet traffic information without probable cause violates the Fourth Amendment. (2) Whether the Sixth Amendment permits judges to find the facts necessary to support an otherwise unreasonable sentence.

Click here to view Ulbricht's certiorari petition.  The case has been distributed for the April 13, 2018 conference.

Jordan v. Mississippi, 17-7153 (cert. petition filed Dec. 13, 2017)
(case below: 224 So.3d 1252 (Miss.))

Questions presented:

     Richard Jordan was first convicted and sentenced to death for capital murder in 1976. He has thus spent over 41 years incarcerated for the same crime. The initial judgment against him was vacated because Mississippi followed the type of unitary proceeding held invalid in Woodson v. North Carolina. He was convicted and sentenced to death again in 1977. The Fifth Circuit vacated his sentence due to improper instructions on aggravating circumstances. He was sentenced to death again in 1983, but once again the State prevented him from having a constitutional proceeding because it refused to permit him to present evidence of his adaptability to prison. In 1991, a Special Prosecutor agreed that Richard Jordan should receive a sentence of life without possibility of parole, citing Jordan’s exemplary prison behavior, military service, expressions of remorse, and efforts to contribute to society despite his incarceration. The Mississippi Supreme Court subsequently determined that such sentence agreements were void ab initio because life without parole was not an available sentencing option under then-existing law. Jordan sought to modify his sentence to one with parole, but the Mississippi Supreme Court simply vacated the sentence and returned Jordan to his pre-agreement status, thus freeing the State to seek the death penalty again. Jordan was again sentenced to death in 1998.
     These circumstances raise the following questions: (1)  Whether incarcerating a prisoner over four decades awaiting execution, even after the State found at one point that a life without parole sentence was appropriate, violates the Eighth Amendment because it fails to serve any legitimate penological purpose? (2) Whether incarcerating a prisoner over four decades awaiting execution, with over half that time attributable to repeated constitutional violations in a succession of sentencing hearings, violates the Eighth Amendment because it fails to serve any legitimate penological purpose?

Click here to view Jordan's certiorari petition.  The case was first distributed for the April 20, 2018 conference.  It has been redistributed for the April 27, May 10, 17, 24, 31, June 7, 14, and 21 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, and 21 conferences.

Wass v. Idaho, 17-425 (cert. petition filed Sept. 20, 2017)
(case below: 396 P.3d 583 (Idaho))

Question presented:

Thirteen years ago, in Missouri v. Seibert, 542 U.S. 600 (2004), this Court considered the admissibility of a statement where an officer “questions first”—i.e., he or she elicits an admission without providing a Miranda warning, then provides the warning and elicits the same admission. The federal  circuits and state high courts are now in an acknowledged, 17-to-8 split over which opinion represents the “narrowest grounds,” Marks v. United States, 430 U.S. 188, 193 (1977), of the Court’s fractured decision in Seibert.

The question presented is:

          When an officer “questions first,” is the admissibility of the suspect’s post-warning statement governed by the four-judge plurality’s objective, suspect-focused test, Seibert, 542 U.S. at 615-16, or Justice Kennedy’s subjective, officer-focused test, id. at 622?

Click here to view the certiorari petition.  The case was initially distributed for the November 9, 2017 conference.  On October 25, 2017, the record was requested.  The case was then redistributed for the February 16 and June 7, 2018 conference.  On June 8, 2018, the record was requested.  The case has been redistributed for the June 14 and 21, 2018 conferences.

Clark v. Louisiana, 16-9541 (cert. petition filed June 10, 2017)
(case below:
220 So.3d 583 (La.))

Questions presented:

(1) Louisiana’s death penalty statutory framework specifically provides for two jury findings only one of which must be found beyond a reasonable doubt, raising the following question: Whether the Louisiana Supreme Court erred in upholding petitioner’s death sentence, when the jury made only one of the two statutory required jury findings beyond a reasonable doubt? (2) Petitioner was sentenced to death as a principal involved in aggravated escape under circumstances where the State conceded that it would not know who inflicted the blows that caused the victim’s death. Whether standards of decency have evolved rendering the execution of a defendant prosecuted as a principal to first degree murder unconstitutional when, as the State conceded, jurors could not know who inflicted the blows that caused the victim’s death? (3) Whether testimony establishing communications between a deputy monitoring the trial and an alternate juror in front of other jurors about the trial constitutes sufficient evidence to be presumptively prejudicial? (4) Whether the Louisiana Supreme Court’s rule -- that an indigent defendant must accept his trial counsel’s decision to concede his guilt of second degree murder over his express objections or represent himself -- vitiates the voluntariness of petitioner’s waiver of counsel?

Click here to view the certiorari petition.  The case was distributed for the October 13, 2017 conference.  It has been redistributed for the May 17, 24, 31, June 7, 14, and 21 conference.