Pending Cert Petitions of Interest

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

Alabama v. Williams, 23-682 (cert. petition filed Dec. 21, 2023)
(case below: 73 F.4th 900 (11th Cir.))

Questions presented:

     While Melanie Rowell and her two toddlers slept, Marcus Williams broke into her house, crept up the stairs, climbed into Melanie’s bed, strangled her to death, and raped her lifeless body. Williams confessed to his crimes and received the death penalty.

     In state habeas, Williams argued that he was abused as a child and that his counsel was ineffective for failing to investigate and present such evidence at sentencing. The trial court denied his claim on the merits. But, according to the Eleventh Circuit, the state decision was owed no deference under 28 U.S.C. §2254(d) because it was later affirmed on procedural grounds, not the merits. The first question is:

1. Does a state-court adjudication on the merits lose its entitlement to AEDPA deference if it is affirmed on procedural grounds?

     The Eleventh Circuit granted habeas relief, concluding that Williams was prejudiced because the jury never heard about his childhood abuse and resulting “hypersexuality.” But the jury also never heard that weeks after he killed Rowell, he broke into the home of another woman and tried to rape her. Raising his “hypersexuality” would not have been solely mitigating and would have opened the door to devastating evidence that Williams was a dangerous and unrepentant serial rapist. The second question is:

2. Was it proper to find Strickland prejudice without considering the double-edged nature of Williams’s “hypersexuality” and the new aggravating evidence of his second violent sex crime?

Click here to view the certiorari petition.

King v. Emmons, 23-668 (cert. petition filed December 18, 2023)
(case below: 69 F.4th 856 (11th Cir.))

Questions presented:

     A Georgia jury convicted and sentenced to death Warren King, a black man, for murdering a white woman during a robbery attempt when he was 18 years old. Abundant evidence demonstrates that the prosecutor discriminated against black and female jurors in selecting King’s jury. The prosecutor struck 87.5% of the black jurors in the pool, while striking only 8.8% of white jurors, all women. When the defense challenged his strikes, the prosecutor embarked on not one, but two rants, in which he “angr[ily]” told the court that it was “improper for this Court to tell me that I cannot decide” who to strike, and that Batson was unnecessary because often “it was a physical impossibility if you wanted to strike every black off a jury.” Pet. App. 46-48a.

     On appeal, the Georgia Supreme Court affirmed without mentioning the prosecutor’s rants or his grossly disproportionate strike rate, and notwithstanding the prosecutor’s inconsistent, flimsy, and factually inaccurate rationales for many of his strikes. On habeas review, a divided Eleventh Circuit panel ultimately held that although the record was “troubling,” the state court had not acted unreasonably.

     The questions presented are:

     1.Whether the Georgia Supreme Court’s decision was based on “an unreasonable determination” of the facts. 28 U.S.C. § 2254(d)(2).

     2. Whether the Georgia Supreme Court “unreasonably applied.” Batson v. Kentucky, 476 U.S. 79 (1986). 28 U.S.C. § 2254(d)(1).

Click here to view the certiorari petition.

Gamboa v. Lumpkin, 23-323 (cert. petition filed Sept. 22, 2023)
(case below: 782 F. App’x 297 (5th Cir.))

Question presented:

     Congress in 18 U.S.C. § 3599 gave indigent state prisoners sentenced to death a right to court-appointed counsel in federal habeas proceedings under AEDPA, 28 U.S.C. § 2254. The district court appointed § 3599 counsel to represent petitioner in this case.

     Appointed counsel abandoned petitioner. He met with petitioner only once, told petitioner he thought he was guilty, failed to investigate any facts or develop any legal claims, and conducted only one day of legal research. After nearly a year of extensions and virtually no work on the case, counsel filed a sham petition containing seven claims copied and pasted from the petition of another client, Obie Weathers, that contained generic, legally foreclosed challenges to the Texas death penalty scheme. Mr. Weathers’s name even appears in the petition’s prayer for relief. And in response to the State’s answer to the petition he had filed, counsel filed an untimely, twoparagraph reply conceding all seven claims were foreclosed. Petitioner promptly moved pro se for the appointment of new counsel. But it was already too late. The district court denied his pro se motion and, almost immediately thereafter, denied counsel’s habeas petition.

     Petitioner sought to remedy counsel’s abandonment by filing a Rule 60(b) motion to reopen the judgment. The district court, applying controlling Fifth Circuit precedent, denied petitioner’s motion and denied him a certificate of appealability. The Fifth Circuit affirmed over a concurrence by Judge Dennis, who urged the court to take this case en banc to overrule its precedent.

     The question presented is: 

     Whether a Rule 60(b) motion claiming that habeas counsel’s abandonment prevented the consideration of a petitioner’s claims should always be recharacterized as a second or successive habeas petition under Gonzalez v. Crosby, 545 U. S. 524 (2005).

Click here to view the certiorari petition.

Sandoval v. Texas, 23-5618 (cert. petition filed Sept. 14, 2023)
(case below: 665 S.W.3d 496 (Tex.Crim.App.))

Questions presented:

     (1) Given that jury selection is one of the most critical phases of a criminal trial, how should courts determine when jury empanelment begins for a particular defendant’s case, triggering the due process right to be present?

     (2) Did the state court err when it held, without analysis of the underlying facts, that the trial court did not violate the petitioner’s due process rights when it excluded him and his counsel from proceedings in which members of the jury panel called for his trial—and who knew the case that they were summoned for—sought discretionary excusals from the court?

Click here to view the certiorari petition.  

Broadnax v. Texas, 23-248 (cert. petition filed Sept. 5, 2023)
(case below: 2023 WL 3855947 (Tex.Crim.App.) (up))

Question presented:

     In this capital case involving a Black defendant and two White victims, the prosecution disclosed to Petitioner’s counsel, only after state habeas proceedings had concluded, (1) a spreadsheet used by prosecutors during jury selection that tracked each qualified prospective juror by race and singled out the Black prospective jurors by marking them in bold text, and (2) a prosecutor’s notes establishing that race was the basis for striking a qualified Black juror. The prosecution struck all seven Black prospective jurors during jury selection.

     “Because of the risk that the factor of race may enter the criminal justice process, [this Court has] engaged in ‘unceasing efforts’ to eradicate racial prejudice from our criminal justice system,” McCleskey v. Kemp, 481 U.S. 279, 309 (1987) (quoting Batson v. Kentucky, 476 U.S. 79, 85 (1986)), and in particular from jury selection, see Powers v. Ohio, 499 U.S. 400, 404–10 (1991); Miller-El v. Cockrell, 537 U.S. 322, 341–47 (2003) (“Miller-El I”); Miller-El v. Dretke, 545 U.S. 231, 237–40 (2005) (“Miller-El II”); Snyder v. Louisiana, 552 U.S. 472, 476–86 (2008); Foster v. Chatman, 578 U.S. 488, 499–514 (2016); Flowers v. Mississippi, 139 S. Ct. 2228, 2238–51 (2019). The newly disclosed evidence of Batson violations in Mr. Broadnax’s case demonstrates that the Court’s work is not done.

     Having been only recently admonished in Miller-El I and Miller-El II for a well-documented culture of racial discrimination in jury selection, Dallas prosecutors put in writing—in a document created by the State during the 2009 jury selection process that was not produced by the State to Mr. Broadnax until 2021—that race was the “only concern” with a Black prospective juror:

     [Cert. petition includes handwritten notation on juror questionnaire referencing age and race]

     Dallas prosecutors then withheld this evidence of their race-based motives for striking Black jurors until it was too late for Mr. Broadnax to present that evidence during the initial state and federal review of his conviction. Review is necessary here because the newly disclosed evidence establishes that a DA’s office with a long and notorious history of racially discriminatory jury selection practices continued to flout this Court’s direction. Left undisturbed, the State’s explicit discrimination will erode the Court’s authority and public confidence in our criminal justice system. 

     The question presented here is: Whether the Texas Court of Criminal Appeals’ decision that Mr. Broadnax failed to establish a prima facie equal protection claim conflicts with this Court’s Batson jurisprudence?

Click here to view the certiorari petition.

Missouri Dep't of Corrs v. Finney, 23-203 (cert. petition filed Aug. 31, 2023)
(case below: (Mo. App.) (unpublished))

Questions presented:

     During voir dire in an employment-discrimination suit involving a lesbian plaintiff, plaintiffs attorney asked several questions about whether jurors held "conservative Christian" beliefs. When some said yes, counsel asked the court to strike them for cause, arguing, "I don't think that you can ever rehabilitate yourself, no matter what you turn around and say after that." The court disagreed, explicitly finding that the jurors "were very clear in that they could be absolutely fair and impartial" and that they believed "everyone needs to be treated equally." But the court struck them anyway for their religious beliefs "to err on the side of caution." On appeal, the court agreed the jurors were struck because of their religious "views," but held that the strike was not unlawful because it was not based on religious "status."

     1. This Court has interpreted the Fourteenth Amendment to forbid relying on stereotypes about race and sex to strike jurors. Does the Fourteenth Amendment also prohibit relying on stereotypes about religious views to strike jurors, as 5 courts have held, or not, as 5 other courts (including below) have held?

     2. Is a Batson-type violation structural, as at least 18 courts have held, or is it subject to harmless-error review, as the court below held?

     3. In the context of jury selection, does the Fourteenth Amendment protect both religious status and religious belief, as 4 courts have held; religious status only, as 3 courts have held (including the court below); or neither, as 2 courts have held?

Click here to view the certiorari petition.

Hamm v. Smith, 23-167 (cert. petition filed Aug. 17, 2023)
(case below: 67 F.4th 1335 (11th Cir.))

Questions presented:

(1)  Whether Hall and Moore mandate that courts deem the intellectual-functioning prong satisfied when an offender’s lowest IQ score, decreased by one standard error of measurement, is 70 or below. (2) Whether the Court should overrule Hall and Moore or at least clarify that they permit courts to consider multiple IQ scores and the probability that an offender’s IQ does not fall at the bottom of the lowest IQ score’s error range.

Click here to view the certiorari petition.  Click here to view Brief of Idaho and 13 Other States as Amici Curiae in Support of Petitioner.

Glossip v. Oklahoma, 22-6500 (cert. petition filed Jan. 3, 2023)
(case below: unpiblished (Okla.Crim.App.))

Questions presented:

Petitioner, Richard Glossip, faces execution on February 16, 2023 for a conviction premised on the State’s theory that he hired Justin Sneed, who is the undisputed actual killer, to kill the owner of a motel where Mr. Glossip was the manager. Sneed’s testimony was the only evidence of any agreement, and his testimony, for which he received assurance he would not face a death sentence, was critical to this case where, as one federal judge put it, “the evidence of guilt was not overwhelming.”

At Mr. Glossip’s first trial, his attorney failed to undertake even rudimentary efforts in his defense, resulting in a full reversal. Chief among the failings was a failure to impeach Sneed with evidence he had been coached to implicate Glossip, whom the interviewing detective brought up six times before Sneed implicated him in the murder.

At retrial, Mr. Sneed was impeached to some extent about having been led to identify Mr. Glossip and about inconsistencies in his account of the murder.

Recently, in post-conviction proceedings, Mr. Glossip learned that prior to the retrial, Sneed had expressed his desire to “recant” and that immediately prior to meeting with Sneed during the second trial, the prosecutor wrote in a memo that the “biggest problem” with the case would be if Sneed repeated his initial statement to police and that she needed to “get to him” before he testified.

     This petition presents the following questions:

     1. Whether a court may require a defendant to demonstrate by clear and convincing evidence that no reasonable fact finder would have returned a guilty verdict to obtain relief for a violation of Brady v. Maryland, 373 U.S. 83 (1963).

     2.  Whether suppressed impeachment evidence of the State’s key witness is per se non-material under Brady v. Maryland because that witness’s credibility had been otherwise impeached at trial.

Click here to view the certiorari petition.  The case has been rescheduled for conference multiple time.  On May 5, 2023, the Supreme Court granted Glossip's application for stay of execution pending disposition of this petition, and the petition filed in 22-7466.