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June 13, 2022

Justice Sotomayor pens lengthy dissent from denial of cert in Texas capital case that has previously led to SCOTUS per curiam reversal

Almost exactly two years ago, the Supreme Court issued a per curiam decision in Andrus v. Texas (discussed here) in which the Court felt compelled to find that "Andrus’ counsel provided constitutionally deficient performance under Strickland," but then remanded so Texas courts could "address the prejudice prong of Strickland in the first instance."  This case resulted in another notable opinion today, making this otherwise new SCOTUS short order list much longer.  Specifically, Justice Sotomayor authored a 25-page dissent from denial of certiorari, which was joined by Justices Breyer and Kagan.  Here is how it starts:

A state habeas court recommended vacating petitioner Terence Andrus’ death sentence after an 8-day hearing that uncovered a plethora of mitigating evidence that trial counsel had failed to investigate or present.  The court held that Andrus had received ineffective assistance of counsel at the punishment phase of his trial. See Strickland v. Washington, 466 U.S. 668 (1984).  The Court of Criminal Appeals of Texas reversed; this Court summarily vacated and remanded. See Andrus v. Texas, 590 U.S. ___ (2020) (per curiam).

This Court held that counsel had rendered constitutionally deficient performance.  That conclusion was based on an “apparent ‘tidal wave’” of “compelling” and “powerful mitigating evidence” in the habeas record, none of which counsel presented to the jury. Id., at ___, ___, ___ (slip op., at 9, 11, 18).  The Court also found counsel ineffective for several specific failures to investigate and rebut the State’s case in aggravation. Id., at ___–___ (slip op., at 13–16).  The Court remanded to allow the Texas court to evaluate in the first instance whether, in light of the Court’s holding as to deficient performance, Andrus had shown prejudice under Strickland.

On remand, the Court of Criminal Appeals, in a divided 5-to-4 decision, failed to follow this Court’s ruling.  Instead of properly weighing the habeas evidence as a whole, the Texas court concluded that Andrus failed to establish prejudice (and therefore denied habeas relief) based on its disagreement with, and rejection of, the determinations underlying this Court’s holding that Andrus’ counsel had rendered deficient performance.  As a result, the dissenting judges below explained, the Texas court’s opinion was irreconcilable with this Court’s prior decision and barred by vertical stare decisis and the law of the case.

I agree with the dissenting judges below. Andrus’ case cries out for intervention, and it is particularly vital that this Court act when necessary to protect against defiance of its precedents.  The Court, however, denies certiorari. I would summarily reverse, and I respectfully dissent from the Court’s failure to do so.

June 13, 2022 at 09:45 AM | Permalink


The dissents of today can become the law of tomorrow. This is what I have to keep reminding myself in these instances.

Posted by: Zachary Newland | Jun 13, 2022 12:25:57 PM

The dissents of today can become the law of tomorrow. This is what I have to keep reminding myself in these instances.

Posted by: Zachary Newland | Jun 13, 2022 12:25:57 PM

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