Pending Cert Petitions of Interest

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

Brookhart v. Smith, 21-475 (cert. petition filed Sept. 24, 2021)
(case below: 996 F.3d 402 (7th Cir.))

Question presented:

     Respondent Kenneth Smith has been tried and convicted on three separate occasions for Raul Briseno’s murder. During the last two trials, the jury heard and rejected evidence that another group of people committed the murder. On appeal from the jury’s most recent verdict, the Illinois Appellate Court issued an exhaustive 93-page opinion that carefully considered and rejected each of respondent’s asserted errors. But the Seventh Circuit nonetheless granted habeas relief, reasoning that the state appellate court had unreasonably applied Jackson v. Virginia, 443 U.S. 307 (1979), in upholding the jury’s verdict. According to the Seventh Circuit, although it did not intend to “adjudicate the [alternative suspects’] guilt,” the evidence implicating these suspects—evidence the jury heard and rejected—“cast[] a powerful reasonable doubt” on the State’s theory that respondent committed the murder, such that “no rational trier of fact” could have reached the verdict the jury did. App. 30a (emphasis in original).

     The question presented is whether the Seventh Circuit violated 28 U.S.C. § 2254(d)’s strictures in awarding habeas relief to respondent based on its own reweighing of the evidence rather than deferring to the state court’s contrary view.

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. 

Reed v. Goertz, 21-442 (cert. petition filed Sept. 20, 2021)
(case below: 995 F.3d 425 (5th Cir.))

Question presented:

     In Skinner v. Switzer, 562 U.S. 521, 524-25 (2011), this Court held that state prisoners may pursue post-conviction claims for DNA testing of crime-scene evidence in a civil rights action under 42 U.S.C. § 1983. The Court made clear that a prisoner bringing such a § 1983 claim may seek “to show that the governing state law denies him procedural due process” after he has unsuccessfully sought DNA testing under available state procedures. Id. at 525, 530.

     The question presented is whether the statute of limitations for a § 1983 claim seeking DNA testing of crime-scene evidence begins to run at the end of state-court litigation denying DNA testing, including any appeals (as the Eleventh Circuit has held), or whether it begins to run at the moment the state trial court denies DNA testing, despite any subsequent appeal (as the Fifth Circuit, joining the Seventh Circuit, held below).

Click here to view the certiorari petition.

Nance v. Ward, 21-439 (cert. petition filed Sept. 17, 2021)
(case below: 981 F.3d 1201 (11th Cir.))

Questions presented:

     In Bucklew v. Precythe, 139 S. Ct. 1112 (2019), “all nine Justices” agreed that a person challenging a State’s method of execution could allege an alternative “not . . . authorized under current state law” and that there was therefore “little likelihood that an inmate facing a serious risk of pain will be unable to identify an available alternative.” Id. at 1136 (Kavanaugh, J., concurring).

     In the proceedings below, Petitioner filed a § 1983 suit bringing an as-applied challenge to Georgia’s sole statutorily authorized method of execution, lethal injection. Petitioner alleged the use of a firing squad as an alternative method. A divided panel held that Petitioner’s challenge could not be heard. The panel ruled that Petitioner must bring his challenge in habeas rather than via § 1983 because he had alleged an alternative method not currently authorized under Georgia law. It further held that Petitioner’s claim would be an impermissible successive petition notwithstanding that the claim would not have been ripe at the time of Petitioner’s first petition.

     The questions presented are:

     1. Whether an inmate’s as-applied method-of-execution challenge must be raised in a habeas petition instead of through a § 1983 action if the inmate pleads an alternative method of execution not currently authorized by state law.
     2. Whether, if such a challenge must be raised in habeas, it constitutes a successive petition where the challenge would not have been ripe at the time of the inmate’s first habeas petition.

Click here to view the certiorari petition.

Broadnax v. Lumpkin, 21-267 (cert. petition filed Aug. 20, 2021)
(case below: 987 F.3d 400 (5th Cir.))

Question presented:

Whether, under 28 U.S.C. § 2254(d) and Cullen v. Pinholster, 563 U.S. 170 (2011), a federal habeas petitioner may present evidence of a prosecutor’s racially discriminatory intent in support of a Batson claim where the evidence was not available to the petitioner during state court Batson proceedings.

Click here to view the certiorari petition.

Oklahoma v. Davis, 21-258 (cert. petition filed Aug. 16, 2021)

Question presented:

Whether McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), should be overruled.

Click here to view the certiorari petition.  The case was distributed for the October 8, 2021 conference.  The record was requested on September 21, 2021.

Wisconsin v. Jensen, 21-210 (cert. petition filed Aug. 10, 2021)
(case below: 957 N.W.2d 244 (Wis.))

Questions presented:

     Before Julie Jensen died, she told a police officer acquaintance that she was not suicidal and that if she died, the police should look at her husband, Mark Jensen, as a suspect. The Wisconsin Supreme Court held that these statements were testimonial hearsay whose admission violated Jensen’s confrontation rights at his trial for killing Julie.

     The questions presented are:

     (1) Can a person’s statement expressing fear about a possible future crime be testimonial under the Sixth Amendment’s Confrontation Clause?
     (2) When a person reports ongoing psychological domestic abuse and expresses fear about future physical harm, is the person’s statement aimed at ending an ongoing emergency such that it is non-testimonial?

Click here to view the certiorari petition.  The case was distributed for the September 27, 2021 conference.  On September 15, 2021, the record was requested.

Canales v. Lumpkin, 20-7065 (cert. petition filed January 28, 2021)
(case below:  966 F.3d 409 (5th Cir.))

Questions presented:

     In Mr. Canales’s Texas capital habeas corpus case, the U.S. Court of Appeals for the Fifth Circuit first ruled in 2014 that his trial counsel rendered deficient penalty phase performance under the standard of a “reasonable probability that at least one juror would have struck a different balance.” Wiggins v. Smith, 539 U.S. 510, 537 (2003), quoted in Canales v. Stephens, 765 F.3d 551, 570-71 (5th Cir. 2014). The case, which is not governed by 28 U.S.C. § 2254(d)(1) deference, returned to the district court for a de novo determination of prejudice. Despite the presentation of a welter of, as the district court admitted, “compelling” mitigating evidence that Petitioner’s jury had not heard, the district court did not find prejudice.

     In the decision below, a new Fifth Circuit panel affirmed the denial of prejudice in a 2-1 decision—also not governed by § 2254(d)(1) deference—by distinguishing the dissenting opinion’s application of the foregoing Wiggins standard, and holding that Harrington v. Richter, 562 U.S. 86 (2011), “established a substantial likelihood standard for evaluating prejudice” that Petitioner did not meet. Canales v. Davis, 966 F.3d 409, 413 (5th Cir. 2020). The majority opinion below thereby articulates the Fifth Circuit’s split from its sister circuits in interpreting Richter to have established a greater burden for petitioners than the longstanding Sixth Amendment standard for penalty phase relief recently restated in Andrus v. Texas, 590 U.S. __, 140 S. Ct. 1875, 1886 (2020) (per curiam). In assessing Petitioner’s evidence, the panel majority, over vigorous dissent, failed to meaningfully consider the difference between what the jury heard and the ultimate “totality of available mitigating evidence.” Wiggins, 539 U.S. at 534.

     The questions presented are:

1. For penalty phase ineffective assistance of counsel violations, has Richter “established a substantial likelihood standard for evaluating prejudice” that exceeds the Wiggins standard of a “reasonable probability that at least one juror would have struck a different balance” on whether to punish by death?
2. Did the Fifth Circuit’s failure to “reweigh the evidence in aggravation against the totality of available mitigating evidence” conflict with Wiggins and Andrus?

Click here to view the certiorari petition.  The case has been redistributed for conference numerous times.

Coonce v. United States, 19-7862 (cert. petition filed Feb. 28, 2020)
(case below: 932 F.3d 623 (8th Cir.))

Questions presented:

(1) Because the age at which a capital defendant became intellectually disabled does not bear on his moral culpability, did the Court of Appeals err in concluding that the Eighth and Fifth Amendments permit the government to execute Petitioner ― though his 71 I.Q. and severe adaptive deficits otherwise meet the criteria for a medical diagnosis of intellectual disability that would bar his execution under 18 U.S.C. § 3596(c) and Atkins v. Virginia, 536 U.S. 304 (2002) ― solely because his impairment originated at age 20 rather than before age 18? (2) Did the Court of Appeals err in concluding, like other Circuits but unlike numerous state courts of last resort, that notwithstanding this Court’s recent teaching concerning the Sixth Amendment’s Confrontation Clause, its seventy-year-old decision in Williams v. New York, 337 U.S. 241 (1949), allows the admission of testimonial hearsay to prove an aggravating factor at a capital sentencing hearing?

Click here to view the certiorari petition.  The case was distributed for the September 27, 2021 conference.  It was redistributed for the October 8, 2021 conference.