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March 24, 2014

SCOTUS grants cert to explore how many procedural angels can dance on a habeas pin

The snarky title of this post is my reaction to the one cert grant today by the Supreme Court in a capital case from Texas, Jennings v. Stephens [Order List available here].  Upon first seeing news of a grant in a capital case from Texas, I was hoping that the Justices might be taking up some meaty substantive death penalty issue.  

But, as the Order List explains, "petition for a writ of certiorari is granted limited to Question 4 presented by the petition." And here, as summarized via this case page at SCOTUSblog, is that question:

Whether the Fifth Circuit erred in holding that a federal habeas petitioner who prevailed in the district court on an ineffective assistance of counsel claim must file a separate notice of appeal and motion for a certificate of appealability to raise an allegation of deficient performance that the district court rejected even though the Fifth Circuit acquired jurisdiction over the entire claim as a result of the respondent’s appeal.

Though I could be wrong on the fact here, I would guess that this specific federal habeas procedural issue arises maybe a couple of times each year at most. It is pretty rare that federal habeas petitioners prevail in the district court, and surely rarer still that a circuit court would on appeal thereafter ding that petitioner on a procedural issue. When there are thousands of cert petitions from defendants raising issues that could impact tens of thousands of criminal cases, I am both intrigued and annoyed that SCOTUS decides to take up a case likely to impact at most a handful of capital cases.

Of course, this issue of habeas procedure is obviously a very big deal to death row petitioner Jennings, and a number of Justices are likely troubled by how the Fifth Circuit handed this case. But would not a summary reversal be a more efficient and effective way to deal with this issue if a majority of Justices are troubled by the procedural maneuver pulled by the Fifth Circuit?

March 24, 2014 at 11:08 AM | Permalink


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No. Summary reversals are reserved for whether acquitted conduct may be used to enhance a federal guideline range. See, e.g, U.S. v. Watts 519 U.S. 148, 149, 117 S.Ct. 633, 634 (U.S.Cal.,1997) (per curiam, on petition for certiorari without briefing)

"In these two cases, two panels of the Court of Appeals for the Ninth Circuit held that sentencing courts could not consider conduct of the defendants underlying charges of which they had been acquitted. United States v. Watts, 67 F.3d 790 (C.A.9 1995)( Watts); United States v. Putra, 78 F.3d 1386 (C.A.9 1996) (Putra). Every other Court of Appeals has held that a sentencing court may do so, if the Government establishes that conduct by a preponderance of the evidence.FN1 The Government filed a single petition for certiorari seeking review of both cases, pursuant to this Court's Rule 12.4, to resolve this split. Because the panels' holdings conflict with the clear implications of 18 U.S.C. § 3661, the Sentencing Guidelines, and this Court's decisions, particularly Witte v. United States, 515 U.S. 389, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995), we grant the petition and reverse in both cases."

Justice Kennedy, dissenting:

"A case can be made for summary reversal here, based on such factors as the conflict between the rationale of the Court of Appeals for the Ninth Circuit and the rationale of this Court in Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), and, to a lesser extent, in Witte v. United States, 515 U.S. 389, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995); the conflict the Ninth Circuit created, without considering en banc its departure from the rule followed in all other Circuits; and the lack of any clear authority to constrain the sentencing judge as the Court of Appeals seeks to do.

On the other hand, it must be noted the case raises a question of recurrent importance in hundreds of sentencing proceedings in the federal criminal system. We have not decided a case on this precise issue, for it involves not just prior criminal history but conduct underlying a charge for which the defendant was acquitted. At several points the per curiam opinion shows hesitation in confronting the distinction between uncharged conduct and conduct related to a charge for which the defendant was acquitted. The distinction ought to be confronted by a reasoned course of argument, not by shrugging it off.

At the least it ought to be said that to increase a sentence based on conduct underlying a charge for which the defendant was acquitted does raise concerns about undercutting the verdict of acquittal, concerns noted by Justice STEVENS and the other federal judges to whom he refers in his dissent. If there is no clear answer but to acknowledge a theoretical contradiction from which we cannot escape because of overriding practical considerations, at least we ought to say so. *171 Finally, as Justice STEVENS further points out, the effect of the Sentencing Reform Act of 1984 on this question deserves careful exploration. This is illustrated by the fact that Justices SCALIA and BREYER each find it necessary to issue separate opinions setting forth differing views on the role of the Sentencing Commission.

For these reasons the cases should have been set for full briefing and consideration on the oral argument calendar. From the Court's failure to do so, I dissent.

You were looking for a snarky response, right?"

Posted by: Carmen Hernandez | Mar 24, 2014 2:19:07 PM

Doug, I think your post may be somewhat ill-considered. First of all, there appears to be a circuit split on this issue. Second, there are two pretty strong policy concerns that are applicable here: (a) trial court judgment winners typically get to support their wins on appeal with alternative arguments and (b) limiting what the prisoner can argue on appeal.

If I am not mistaken, cases with similar issues have had cert. grants before.

Posted by: federalist | Mar 24, 2014 9:58:49 PM

I had assumed, federalist, that a circuit split is what generated this grant, but a quick look at the cert petition suggest that the leading rulings from two other circuits were handed down in 2002 and 2003. That reinforces my belief that "this specific federal habeas procedural issue arises maybe a couple of times each year at most."

I could readily highlight a few dozen more widespread and consequential circuit splits concerning applications of Booker and Gall and Kimbrough (not to mention uncertainty/questions about the continued validity of pre-Booker precendents like Watts and Libretti) that SCOTUS has been dodging every Term. Obviously, SCOTUS cannot resolve every circuit split, but I think/hope the Justices should want to prioritize resolving splits that will impact thousands of federal defendants every year over those that impact a few state capital defendants every decade.

I agree that strong policy concerns are implicated here, but do you expect this case to generate any jurisprudence that has any impact on any litigants than a few state capital defendants every decade? The novel requirement of a COA in federal habeas litigation suggests to me that nothing they hold or say in Jennings will be (or should be) applicable in any other context. Indeed, the fact that there are broader policy issues in play here reinforces my concern that this case could be a lot more trouble than it is worth. As with rulings like Teague and other SCOTUS state/federal habeas rulings, some of the dicta in the eventual decision here could end up inappropriately and harmfully impacting how other distinct issues get addressed and resolved.

As always, federalist, I appreciate your effort to be contrarian. But my main point is that, for a court that picks only a handful of criminal cases out of a cert pool of thousands, I wish the Justices would focus on issues that are consequential to more than a few state murderers seeking to get a federal habeas court to pay attention to all their claims.

Posted by: Doug B. | Mar 25, 2014 8:41:32 AM

Yeah, this one is quite underwhelming. Ryan v. Hurles (the 15 times relisted case about whether a ruling is per se unreasonable if the court does not conduct an evidentiary hearing) is a much greater candidate.

That being said, they do like policing nitpicky procedural aspects of AEDPA. They'd much rather screen out substantive habeas claims than hear them, so cases like this will go much farther in reaching their goal.

Posted by: Erik M | Mar 25, 2014 7:49:28 PM

Doug, if there's a circuit split, then summary reversal would hardly be in keeping with Supreme Court practice.

Second, this case touches on some esoteric issues that pop up from time to time, namely whether a habeas petitioner can smuggle in some argument not presented with the state courts but which touches on a claim properly raised in habeas.

Finally, as you know, habeas is a bit sui generis. Congress passed AEDPA because federal judges were abusing their habeas power. Post-AEDPA, a lot of 'rat judges continued the abuse, and the Supreme Court has been obliged, numerous times, to step in. So it's not surprising that habeas takes up a lot of the Court's docket, and it would be wrong if, in the face of demonstrated abuse by the 'rat judges, it didn't. The "wise [sic] Latina" tried once to argue otherwise in a specific case, but Scalia clowned her.

Posted by: federalist | Mar 25, 2014 10:53:35 PM

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