Might Justice Gorsuch juice up the SCOTUS sentencing docket ... perhaps starting with IAC case from Arkansas?

The SCOTUS sentencing docket has felt relatively muted to me in recent years, due in part to transition issues after Justice Scalia's unexpected death and due in part to Apprendi and Booker jurisprudence no longer garnering much of the Court's attention.  Of course, the application of Eighth Amendment doctrines after Miller and Graham and vagueness doctrines after Johnson can and will continue to provide grist for the SCOTUS sentencing mill, and it also still seems no SCOTUS Term would be complete without a few capital cases on the docket.  Nevertheless, with SCOTUS soon to have its “long conference” in which the Justices will consider all the cert petitions that stacked up over the summer, I find myself not really expecting exciting cert grants on many (or perhaps any) issues that will rev up sentencing fans.

That said, and as the title of this post suggests, perhaps new personnel at SCOTUS could mean some new juice for the SCOTUS sentencing docket.  As noted in this post from May, Justice Gorsuch has opted out of the cert pool, and I suspect that could lead him to be more engaged with criminal cases that may get short shrift through the cert pool screening process. In addition, as detailed in this prior post, Justice Gorsuch had a remarkable little concurrence in a federal mandatory-minimum sentencing case, Hicks v. US, No. 16-7806 (S. Ct. June 26, 2017) (available here), right before all the Justices left for summer vacation.  Though these tea leaves hardly ensure that the new guy is a vote for cert in all the sentencing cases I find interesting, it remains fun to speculate whether Justice Gorsuch's libertarian-leaning instincts might make him more inclined to vote to review petitions of criminal defendants than some of his colleagues.

If Justice Gorsuch is looking for cert worthy sentencing cases, Carissa Byrne Hessick tees one up in this new post over at PrawfsBlawg, titled "Thompson v. Arkansas and Ineffective Assistance of Counsel at Sentencing."  Here is how that posting gets started:

Earlier this summer, I helped write a cert petition for the US Supreme Court.  The case involves an ineffective assistance claim out of Arkansas.  The petitioner, Mario Thompson, was represented at trial by a lawyer who didn’t do very much on his behalf.  Among other things, the lawyer failed to investigate or prepare any sort of meaningful mitigation case for sentencing.  On collateral attack, a state judge held that the lawyer failed to provide effective assistance of counsel at sentencing. But the Arkansas Supreme Court reversed.

Arkansas has a rule that a defendant who is claiming a violation of her Sixth Amendment right to counsel cannot show prejudice if she did not receive the maximum available sentence.  This rule is inconsistent with the reasoning of Glover v. United States, 531 U.S. 198 (2001).  And although Arkansas is the only jurisdiction to have adopted this particular rule, there is a split over the appropriate prejudice standard for ineffective assistance of counsel at sentencing claims.  The Second, Third, Sixth, and Tenth Circuits have adopted what I think is the correct legal standard.  The courts of last resort in Louisiana, Michigan, and Wisconsin have adopted that same standard.  But Arkansas and the Fifth Circuit have adopted different prejudice standards.  And several federal district courts have started to question how they ought to assess these claims.