Hill v. McDonough (05-8794), House v. Bell (04-8990) and order list

June 12, 2006 Supreme Court Update

Greetings, Court Fans!
It's now crunch time: three weeks left in the Term, and twenty-five cases remain. The Court started whittling away at the outstanding cases by issuing two interesting criminal opinions today.
First, in Hill v. McDonough (05-8794), the Court unanimously held that a death-row inmate seeking to challenge the method of his execution as cruel and unusual can bring a civil-rights suit under 42 U.S.C. § 1983, as opposed to a petition for a writ of habeas corpus, so long as the method of execution is not prescribed by law. Hill challenged Florida's injection sequence under § 1983 as likely to cause him severe pain and suffering, but the lower courts construed his action as a habeas petition and dismissed it on procedural grounds. The Court reversed, in an opinion by Justice Kennedy that noted the distinction between challenges to the lawfulness or duration of confinement, which must be brought via a habeas petition, and challenges to the circumstances of confinement, which need not be. The difference is that the former, but not the latter, necessarily challenge the legality of a sentence (i.e., finding that a state cannot detain or execute an inmate in one particular manner does not mean that it cannot detain or execute him at all). The key for the Court in Hill was that although Florida law prescribed lethal injection as the means of execution, it left the specific method of injection up to corrections officials, and Hill challenged only the particular, three-drug sequence intended for his execution. Because he left open the possibility that Florida could execute him by lethal injection in some other manner, a decision in his favor under § 1983 would not imply that his sentence – lethal injection generally – was unlawful. The Court was sympathetic to the concerns raised by Florida, the SG, and others that death-row inmates will simply challenge individual aspects of their planned executions one at a time and thus effectively block their executions. Still, it rejected a proposal to require inmates like Hill to identify in their complaints alternative means of execution that they would accept; according to the Court, heightened pleading requirements should result from changes to the Federal Rules (hint, hint), not case-by-case litigation. The Court also noted that filing a § 1983 action does not entitle an inmate to a stay of execution, which allows courts to consider factors such as whether a suit is speculative or filed too late in the day. [Also, while this looks like a victory for Hill, it should be noted that most lawsuits like his fail on the merits, and the Court repeatedly has declined to review those cases.]
The second opinion of the day, House v. Bell (04-8990), was another criminal case in which the Court held 5-3 (no Alito) that a death-row inmate's federal habeas petition could proceed, even though he had defaulted on his petitions in state court, because he satisfied the "actual innocence" exception based on new evidence. The case is complicated and fascinating, but fact-intensive, and the opinions are lengthy (Kennedy for the majority, the Chief in dissent for himself, Scalia and Thomas). The gist of the case is this: House was convicted of murdering a Tennessee woman after kidnapping and/or raping her, based on evidence including, among other things, her blood on his clothes, his semen on hers, and his otherwise inexplicable presence late at night near where her body was found. The Tennessee courts rejected his state habeas petitions based on prosecutorial misconduct and ineffective assistance of counsel, finding that he had forfeited these arguments. House then raised the same arguments in a federal petition. Although House's state default ordinarily would have forfeited these claims too, he argued that his federal claims should proceed under the "actual innocence" exception, which allows an otherwise forfeited claim to proceed where the inmate can show that it is more likely than not that no reasonable juror would find him guilty beyond a reasonable doubt. Just to be clear, "actual innocence" is not itself a ground for habeas that will set an inmate free, but rather a "gateway" exception that allows courts to hear the merits of otherwise forfeited claims (like ineffective assistance) because the inmate probably should not have been convicted in the first place. House argued that he met this exception based on several new pieces of evidence: DNA evidence establishing that the semen found on the dead woman's clothes belonged to her husband; testimony from the state's assistant chief medical examiner that her blood probably was on House's clothes due to a spill at the crime lab; and witness accounts of the husband confessing to the crime. He also argued that this evidence made out a "freestanding innocence" claim, based on dicta in past Court decisions suggesting (but not actually holding) that executing the innocent would, by itself, be unconstitutional – in other words, not only did he satisfy the "actual innocence" gateway to have his prosecutorial misconduct and ineffective assistance claims heard, he should be set free because he really is innocent. After an evidentiary hearing, the district court rejected the petition. The Sixth Circuit affirmed en banc by a vote of 8-7: The seven dissenters agreed with House's "actual innocence" claim for letting his habeas petition proceed, and six of them simply would have set him free based on his "freestanding innocence."
After a lengthy examination of the evidence and its reliability, the Court reversed on House's "actual innocence" claim. While the evidence did not exonerate House conclusively (his presence at the crime scene, and other evidence, did suggest guilt), the new DNA evidence and accounts of the husband's confession were such that no juror looking at the new evidence would lack reasonable doubt. The Court thus remanded the case to the district court to allow House's petition to go forward based on his claims of prosecutorial misconduct and ineffective assistance of counsel. The Court, however, did not reach House's "freestanding innocence" claim that he had established his innocence altogether such that he simply should be released. Continuing to leave open the question of whether "freestanding innocence" claims are even possible, the Court held that the standard for such claims would be even higher than the "actual innocence" standard and that, whatever it was, House had not satisfied it. So for the time being, "freestanding innocence" remains a hypothetical basis for habeas. The dissenters' main beef with the majority's reasoning was that it usurped the fact-finding role of the district court by engaging in an extensive review of the reliability of the new evidence and credibility of the witnesses, who in this case were testifying some fourteen years after the crime. These should be matters left to the expertise of trial courts and subject to review only for clear error; finding no error, the dissenters would have affirmed.
The Court also issued an order list in which it granted cert in two new cases. They are:
Marrama v. Citizens Bank of Massachusetts (05-996): Whether the right to convert a chapter 7 bankruptcy case to another chapter can be denied notwithstanding the plain language of the statute and the legislative history.
James v. United States (05-9264): The question presented in this in forma pauperis case is not readily available, but it appears to concern whether a state attempted-burglary conviction is a violent felony for purposes of mandatory sentencing under the federal Armed Career Criminal Act.
As usual, the Court denied cert in a large number of cases, but there was an unusual exchange of opinions regarding the denial of cert in three cases dealing with criminal sentencing: Rangel-Reyes v. United States, Shuman v. United States, and Banegas-Hernandez v. United States, all of which asked whether that fact that a defendant had a prior conviction, which can be used to increase his sentence, was a fact that must be tried to the jury as opposed to found by the judge. Justice Thomas dissented from the denials, arguing that the current rule (exempting prior convictions from the jury trial requirement) comes from a Court decision (Almendarez-Torres v. United States) that five members of the current Court think was wrong, and there was no reason to let that situation persist (Thomas actually voted in the majority in that case, but has since changed his mind). Justice Stevens responded by saying that while he is one of the five who thinks Almendarez-Torres was wrong, stare decisis was reason enough not to revisit the issue – lots of judges have relied on the decision, and denying a jury trial on the narrow issue of a past conviction rarely creates a risk of prejudice to a defendant.
Finally, the Court also invited the SG to file a brief regarding the petition in Hatch v. Cellco Partnership (05-1159), which asks: (1) Whether Minnesota's law requiring wireless service providers to provide notice and obtain customer consent before they change the terms of an existing contract is preempted by 47 U.S.C. § 332(c)(3)(A); and (2) If the Court determines that any portion of Minn. Stat. § 325F.695 (2004) has been preempted by 47 U.S.C. § 332, whether the remaining portions of the statute are severable and enforceable.
We expect more decisions Thursday. Until then, thanks for reading!
Ken & Kim

From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400