Supreme Court Update: Jennings v. Stephens and Order List
Greetings, Court fans!
We're back with breaking news on the certiorari front, along with a summary of one of Wednesday's decisions, Jennings v. Stephens (13-7211), on the application of certain longstanding principles of appellate procedure to habeas appeals.
Cert first: The Court just this afternoon granted certiorari in all four pending same-sex marriage decisions—Obergefell v. Hodges (14-556), Tanco v. Haslam (14-562), DeBoer v. Snyder (14-571), and Bourke v. Beshar (14-574)—consolidating them for two-and-a-half hours of argument on two questions of historic constitutional (to say nothing of social and political) importance: "(1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? (2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?" The Court also set a briefing schedule, which should set the case up for argument in late April, and a decision in late June. Stay tuned!
Meanwhile, in Jennings v. Stephens (13-7211), Justice Scalia faced off against Justice Thomas over whether the general rule that an appellee may defend a judgment based on any argument appearing in the record (even if it was ignored or rejected by the trial court) applies equally in the habeas context. Scalia won the argument, 6-3.
Robert Mitchell Jennings was convicted of capital murder by a Texas jury. During the sentencing phase, the State introduced evidence of Jennings's lengthy and violent criminal history, while his defense attorney only managed to call the prison chaplain, who offered that Jennings was not "incorrigible." In fact, the defense attorney remarked in closing that he could not "quarrel with" a death sentence. Needless to say, Jennings was sentenced to death. In his later habeas petition, Jennings asserted three theories of ineffective assistance of counsel. Two of them—the "Wiggins theories," after Wiggins v. Smith (2003)—focused on his lawyer's failure to investigate and present mitigating evidence relating to Jennings's difficult childhood and low intelligence. The third theory—the "Spisak theory," after Smith v. Spisak (2010)—was that Jennings's counsel's statement that he could not "quarrel with" a death sentence was constitutionally deficient. The trial court rejected the Spisak theory, but granted relief on the Wiggins theories and issued a conditional release order, requiring the State either to release Jennings, grant him a new sentencing hearing, or resentence him to a term of imprisonment. The State appealed, attacking both Wiggins theories. Jennings defended those theories, but also argued that relief was warranted under the rejected Spisak theory. The Fifth Circuit reversed the grant of habeas corpus under the Wiggins theories and determined that it lacked jurisdiction over the Spisak theory because Jennings had failed to file a timely notice of appeal on that issue and had failed to obtain a certificate of appealability as required by 28 U.S.C. §2253(c).
The Court reversed. Both the majority and dissent agreed that the case was governed by the long-standing rule that an appellee who does not take a cross-appeal may defend the judgment based on any ground supported by the record, but may not "attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary.' United States v. American Railway Express Co. (1924). At bottom, therefore, the case turned on whether Jennings's advancement of the Spisak theory on appeal was an attempt to enlarge his rights or lessen the State's. Justice Scalia seized upon the "straightforward," "intuitive answer": "Jennings' rights under the judgment were what the judgment provided—release, resentencing or commutation within a fixed time, at the State's option; the Spisak theory would give him the same." Because Jennings's rights under the judgment would not change depending upon whether the judgment was affirmed on the Wiggins or Spisak theories, there was no need for a cross-appeal.
Justice Thomas, joined by Kennedy and Alito, disagreed. The dissent contended (as the State had) that Jennings rights would in fact be expanded if the judgment were affirmed on the Spisak theory, because on remand the State would be obligated to resentence him without that particular error. ‘A habeas petitioner's rights under the conditional-release order are thus defined by the violation that justified its entry, not by the wording of the order." If the appellate court justifies the judgment with a different violation, then the petitioner's rights under the judgment have been expanded. As Justice Scalia pointed out, this was a peculiar argument for the State (and judges supposedly concerned with federalism) to make, as it embraces the notion that every federal grant of habeas corpus carries with it "an attendant list of unstated acts (or omissions) that the state court must perform (or not perform)," transforming a conditional habeas relief order "from an opportunity to replace an invalid judgment with a valid one, to a general grant of supervisory authority over state trial courts." The dissent's view also contravened the general rule that appellate courts review judgments, not opinions. Because the effect of the judgment was the same, Scalia argued that it mattered not (for purposes of determining whether a cross-appeal is required) whether the rationale for the judgment might be altered on appeal.
The dissent also voiced a concern that allowing a prevailing habeas petitioner to defend the judgment on theories rejected by the trial court without filing a cross-appeal (which, in turn, requires attaining a certificate of appealability) would result in a proliferation of frivolous defenses in habeas appeals. Scalia rejected this concern as irrelevant ("a problem that can only be solved by Congress") and exaggerated. The petitioner is still constrained to alternative theories that were properly presented in the trial court and it's silly to think petitioners would waste time and resources diverting the appellate court's attention from potentially meritorious theories—i.e. the ones that persuaded the trial court—to frivolous ones.
In the end, Jennings stands for the simple proposition that there is no good reason to treat habeas appeals differently than other civil appeals.
Before we forget, the Court granted cert in a few other cases today, as well:
Mata v. Holder (14-185) asks whether circuit courts have jurisdiction over denials by the Board of Immigration Appeals of requests to equitably toll the deadline on motions to reopen immigration proceedings .
Horne v. Dep't of Agriculture (14-275) asks (1) whether the government's duty under the Takings Clause to pay just compensation when it physically takes possession of an interest in property applies only to real property and not to personal property; (2) whether the government may avoid its duty to pay just compensation by reserving to the property owner a contingent interest in a portion of the value of the property; and (3) whether a governmental mandate to relinquish specific, identifiable property as a ‘condition' on permission to engage in commerce effects a per se taking.
McFadden v. United States (14-378) asks whether, to convict a defendant of distribution of a controlled substance analog (one "substantially similar" to a schedule I or II drug that has a "substantially similar" effect on the user) the government must prove that the defendant knew that the substance constituted a controlled substance analogue.
Kingsley v. Hendrickson (14-6368) asks whether the requirements of a Section 1983 excessive-force claim brought by a plaintiff who was a pretrial detainee at the time of the incident are satisfied by a showing that the state actor deliberately used force against the pretrial detainee and the use of force was objectively unreasonable.
That about does it for now. We'll be back soon with a summary of Wednesday's other decision, T-Mobile South v. City of Roswell (13-975) (spoiler for the impatient: the Telecommunications Act requires localities to provide a written statement of reasons for denying an application to build a cell phone tower "essentially contemporaneously" with its denial). Enjoy the weekend (and don't forget why it's a long one).
Kim & Tadhg