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May 17, 2021

SCOTUS grants cert on a capital habeas procedure case, while Justice Sotomayor makes district statement about capital sentencing process

The Supreme Court is back in action this morning, and the big news from this new order list is its decision to grant cert on an abortion case from Mississippi.  But the Court granted cert in a couple of other cases, including a capital case from Arizona, Shin v. Ramirez, No. 20-1009, which raises this issue:

Whether application of the equitable rule the Supreme Court announced in Martinez v. Ryan renders the Antiterrorism and Effective Death Penalty Act, which precludes a federal court from considering evidence outside the state-court record when reviewing the merits of a claim for habeas relief if a prisoner or his attorney has failed to diligently develop the claim’s factual basis in state court, inapplicable to a federal court’s merits review of a claim for habeas relief.

In addition, at the end of the order list, Justice Sotomayor has a statement respecting the denial of certiorari in a capital case out of Texas, Calvert v. Texas, No. 20–701.  The statement laments various procedural developments in this case and ends this way:

Although this case does not meet this Court’s traditional criteria for certiorari, it still stands as a grim reminder that courts should rigorously scrutinize how States prove that a person should face the ultimate penalty.  Juries must have a clear view of the “uniquely individual human beings” they are sentencing to death, Woodson, 428 U.S., at 304 (plurality opinion), not one tainted by irrelevant facts about other people’s crimes.  The Constitution and basic principles of justice require nothing less.

May 17, 2021 at 09:56 AM | Permalink


As a potential advance hint on Shinn, it might be worth considering the position taken by Justice Thomas in his concurrence in Edwards (essentially holding that Section 2254(d)(1) replaced Teague).

As I read Thomas, AEDPA replaced the court-created pre-AEDPA equitable rules. As such, claims about the right way to handle habeas petitions need to be analyzed under Section 2254 rather than some amorphous belief about how habeas should function.

Section 2254(b) creates the "exhaustion" requirement. It does not expressly create the concept of a "defaulted" claim or any specific exception that would permit courts to hear defaulted claims. It is possible to read default into the requirements of exhaustion and the lack of an available state process and to read the exceptions into the concept that the state process is ineffective to protect the inmate's rights, but I am unaware of any cases directly addressing the issue in that way. Instead, as in Martinez, the Supreme Court acts as if it has broad equitable powers to create exceptions without regard to the statutory language.

In Shinn, the issue is 2254(e)(2). Read literally, as Justice Thomas will probably do, an evidentiary hearing is only permitted for newly discovered evidence and only if the inmate can prove actual innocence. Effectively, if Justice Thomas's likely position prevails, it will not matter if there are exceptions to Section 2254(b) because an inmate will not be able to get a hearing on a defaulted claim in the absence of "clear and convincing evidence" of actual innocence.

Posted by: tmm | May 17, 2021 12:17:21 PM

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