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January 14, 2015

With interesting 6-3 split, SCOTUS gives habeas petitioner a little win on appeal

The Supreme Court this morning handed down a notable habeas procedure opinion today in Jennings v. Stevens, No. 13-7211 (S. Ct. Jan. 14, 2015) (available here). Here is the start and conclusion of the majority opinion by Justice Scalia:

Petitioner Robert Mitchell Jennings was sentenced to death for capital murder. He applied for federal habeas corpus relief on three theories of ineffective assistance of counsel, prevailing on two. The State appealed, and Jennings defended his writ on all three theories. We consider whether Jennings was permitted to pursue the theory that the District Court had rejected without taking a crossappeal or obtaining a certificate of appealability....

Because Jennings’ Spisak theory would neither have enlarged his rights nor diminished the State’s rights under the District Court’s judgment, he was required neither to take a cross-appeal nor to obtain a certificate of appealability. We reverse the judgment of the Fifth Circuit and remand the case for consideration of Jennings’ Spisak claim.

Justice Thomas, joined by Justices Kennedy and Alito, authored a dissenting opinion that starts this way:

The Court holds today that a prisoner who obtains an order for his release unless the State grants him a new sentencing proceeding may, as an appellee, raise any alternative argument rejected below that could have resulted in a similar order. In doing so, the majority mistakenly equates a judgment granting a conditional-release order with an ordinary civil judgment. I respectfully dissent.

Off the top of my head, I cannot think of another recent criminal case with this particular combination of Justices in the majority and in the dissent. Except for those involved in complicated habeas proceedings, the line up of the Justices is arguably the most notable aspect of this ruling.

January 14, 2015 at 10:52 AM | Permalink


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Not sure rule is as clear cut as Scalia states for other civil cases. In most civil cases, relief is intricately connected to a claim (e.g. damages for unjust enrichment) and a switch from one claim to another would inherently alter the remedy.

Habeas is to some degree a strange bird -- more equity than law. Looking at the judgment as concerning the remedy (the writ or conditional writ) rather than deciding a claim (Ineffective assistance for not calling a witness), this case pretty much limits the number of cases in which an inmate will need to file a cross-appeal. There is pretty much only four possible remedies that a habeas petitioner might seek: 1) outright discharge (basically limited to a sufficiency of the evidence claim); 2) a new trial (the vast majority of the claims); 3) a new sentencing hearing (very rare outside of capital habeas given how hard it is to have a constitutional sentencing error in the garden variety case); and 4) a new appeal (essentially limited to claims of ineffective appellate counsel). Given how rare it is to have a substantial claim for something other than a new trial, I can't see many cases in which the inmate will seek a cross-appeal seeking one of the other remedies.

The Supreme Court seems to continue its habit of minimizing of the impact of its rulings. While there are a substantial number of meritless applications for COA (both in the trial court and in the Court of Appeals), most of them are facially meritless (not even presenting any argument in support) and normally do not result in any request for a response from the custodian or a reasoned opinion addressing the merits of the application. On the other hand, when an inmate alleges in a brief that the trial court should have also granted relief on a second (or more) claim, the custodian will almost always need to file a reply brief to address the new issue and the judges will need to write a reasoned decision addressing the additional claims. So there is an additional burden on the parties and appellate courts by essentially waiving the requirement of a COA before an inmate can raise a claim on appeal.

Posted by: tmm | Jan 14, 2015 2:17:23 PM

Regarding civil cases being tied to the claim.

Suppose a court finds that there was no evidence of actual negligence but accepts plaintiff's theory of Res Ipsa Loquitur. Does plaintiff need to cross-appeal the claim of actual negligence to raise it as an alternative ground for upholding the verdict? In both cases, it's a claim of negligence argued in the alternative. Or, in another case, two theories of negligence - one for following too closely and another for maintaining faulty breaks. Both are arguing negligence as alternative theories. Do they need to cross-appeal? It's different from a claim of strict liability and a claim of negligence (or a claim in equity and a claim in law that are distinct). What's the requirement for just legal theories?

I can also see it in criminal cases. Motion to Suppress was denied because, although there was no probable cause, it was an inventory search. Does the government need to cross-appeal the finding of no probable cause as an alternative if the appellate court finds it was not an inventory search?

Posted by: Erik M | Jan 14, 2015 3:03:59 PM


I would think the main reason this won't have much impact is just how rare it is for a habeas petition to be successful.

Of course, I also believe this will turn out to be a rather hollow victory as I will be very surprised if the court of appeals accepts a basis for relief that the district court rejected.

Posted by: Soronel Haetir | Jan 15, 2015 10:39:08 AM

Yeah, particularly after rejecting the other grounds for relief. Still, it'll be helpful in future cases in at least avoiding procedural default.

I wonder if he can still petition the Supreme Court to review the first two errors. I assume the answer is no and he can only ask for a writ on the last one.

Posted by: Erik M | Jan 15, 2015 7:34:22 PM

Erik M,

I am pretty sure he already asked for review on the first two items when the cross petition question was filed and SCOTUS chose not to take them..

Posted by: Soronel Haetir | Jan 15, 2015 9:31:37 PM

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