Supreme Court Update: Dunn v. Madison (17-193), Kernan v. Cuero (16-1468)

November 7, 2017 Supreme Court Update

Greetings, Court Fans!

Yesterday's Order List brought no new cert grants (for the second week in a row), but it did include the first two decisions of the term—per curiam GRRs (granting cert, reversing, and remanding) in "state on top" habeas cases. Following a familiar pattern in cases arising under the Antiterrorism and Effective Death Penalty Act (AEDPA), in each of yesterday's opinions, the Court held that an interpretation of federal law adopted by the lower courts was not, in fact, "clearly established" by the Supreme Court, as necessary to warrant federal habeas relief.

In Dunn v. Madison (No. 17-193), the Court reversed an Eleventh Circuit decision halting the execution of an Alabama inmate who, as a result of several strokes, no longer had any memory of his crime. The Eleventh Circuit held that the Supreme Court's decisions in Ford v. Wainwright (986) and Panetti v. Quarterman (2007), establishing that a state cannot execute someone who lacks "the mental capacity to rationally understand that he is being executed as a punishment for a crime," necessarily established that a person who "has no memory of his capital offense" cannot be executed.

The Supreme Court disagreed, noting that Panetti and Ford dealt with the situation where a death row inmate doesn't understand why he is being executed; they did not "clearly establish" that it is unconstitutional to execute someone, like Madison, who understands that he is being executed as retribution for a crime that he committed, but simply does not recall committing the crime. Accordingly, the state court determinations permitting Madison to be executed "were not so lacking in justification as to give rise to error beyond any possibility for fairminded disagreement," as required to satisfy AEDPA's strict standard of federal habeas review. However, the Court made clear that it "express[ed] no view on the merits of the underlying question outside of the AEDPA context," a point Justice Ginsburg underscored in a brief concurrence, joined by Justices Breyer and Sotomayor. Justice Breyer also wrote separately (and alone) to note that the circumstances of Madison's execution—after spending more than 32 years on death row and suffering serious physical and mental health problems—illustrates one of the many problems with the administration of the death penalty. He reiterated the position he first took in Glossip v. Gross (2015) that the Court should "reconsider the root cause of the problem—the constitutionality of the death penalty itself."

Meanwhile, in Kernan v. Cuero (No. 16-1468), the Court shot down the Ninth Circuit's conclusion that clearly established federal law requires "specific performance" when a State seeks to amend a criminal complaint after the defendant has already entered into a plea agreement stipulating to less time than required by the amended complaint. Michael Cuero pled guilty to two California felony counts for causing injury while driving under the influence of a drug and unlawful possession of a firearm. In the plea agreement, he stipulated to having served four prior prison terms, including one for residential burglary, which qualifies as a predicate offense under California's "three strikes" law. Based on his plea agreement (including the one "strike"), Cuero faced a potential maximum sentence of just over 14 years. After Cuero's plea was accepted, but before he was sentenced, the State realized that another of his prior convictions also qualified as a "strike" and should have been included in the plea agreement. The trial court permitted the State to amend the complaint over Cuero's objection, reasoning that, even if amendment amounted to a breach of the original plea agreement, the proper remedy was to permit Cuero to withdraw his plea. Cuero did withdraw his plea, but then pled guilty to the amended complaint, which (counting the second "strike") subjected him to a mandatory minimum 25-year sentence. After state review was exhausted, Cuero filed a federal habeas petition. The District Court denied it, but the Ninth Circuit reversed, holding that the state trial court had "acted contrary to clearly established Supreme Court law" by "refusing to enforce the original agreement." The Ninth Circuit reasoned that the plea agreement was a contract, that the State's motion to amend was a breach of the contract, and that specific performance of the original contract, rather than rescission, was the only permissible remedy.

The Supreme Court didn't buy it. Even assuming "that the State violated the Constitution when it moved to amend the complaint," the Court held, "we still are unable to find in Supreme Court precedent that ‘clearly established federal law' demanding specific performance as a remedy." In this respect, The Nine were unimpressed with the Ninth's citation to a footnote in a concurring opinion by Justice Douglas in Santabello v. New York (1971), a case whose actual holding was that the "ultimate relief to which [a] petitioner is entitled" when the State breaches a plea agreement must be left "to the discretion of the state court." And it was even less impressed with the Ninth Circuit's citation to its own precedent, something the Supreme Court has repeatedly admonished against. In short, the Court held, "because none of our prior decisions clearly entitles Cuero to the relief he seeks, the state court's decision could not be ‘contrary to' any holding from this Court."

As we've remarked before, the Court sometimes likes to clear its throat at the start of a new term by telling us what is not clearly established law. As soon as it gets around to clearly establishing what the law is, we'll let you know.