Issues
Is a federal habeas petitioner required to file a Certificate of Appealability, a separate motion for appeal, or even both before presenting an alternative argument on appeal in support of the district court's judgment where that argument failed at the district court?
The Supreme Court will decide whether a federal habeas petitioner must file a Certificate of Appealability (“COA”), a cross-notice of appeal, or even both before raising an argument at the court of appeals level that the district court rejected. Jennings, a prisoner on death row, asserts that he was not required to obtain a COA or a cross-notice of appeal in order to present a cross-point in support of the district court’s judgment. Stephens, the Director of the Texas Department of Criminal Justice, Correctional Institutions divisions, argues that the Fifth Circuit did not have jurisdiction to hear Jennings’ alternative claim because Jennings had not timely requested a COA or filed a cross-notice of appeal. The Supreme Court’s resolution of this case will have important consequences for habeas corpus applicants like Jennings, a death row inmate, as well as on the judicial efficiency of the courts in hearing habeas corpus appeals.
Questions as Framed for the Court by the Parties
- Did the Fifth Circuit err in reversing the district court's grant of habeas corpus relief based on ineffective assistance of counsel at the punishment stage of a death penalty trial by deferring to a state court prejudice determination that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent?
- Did the Fifth Circuit err in holding that the state court reasonably determined that trial counsel made a sound strategic decision not to present any evidence of petitioner's disadvantaged background in a capital case where, in its absence, the jury was deprived of meaningful mitigating evidence that could have resulted in a life sentence?
- Did the Fifth Circuit err in holding that the federal doctrine of waiver precludes a federal habeas court from considering an argument made initially in a footnote in a state court brief that was not waived under state law?
- Did the Fifth Circuit err in holding that a federal habeas petitioner who prevailed in the district court on an ineffective assistance of counsel claim must file a separate notice of appeal and motion for a certificate of appealability to raise an allegation of deficient performance that the district court rejected even though the Fifth Circuit acquired jurisdiction over the entire claim as a result of the respondent's appeal?
Facts
On July 19, 1988, Petitioner Robert Mitchell Jennings entered an adult bookstore with the intent to commit a robbery. At the time, Elston Howard, a police officer, was arresting the bookstore clerk. Jennings shot and killed Howard and robbed the clerk. At his subsequent trial, Jennings was convicted of capital murder and sentenced to death. During the punishment phase of that trial, the jail chaplain was the only defense witness called and no other mitigating evidence was presented.
About seven years after his conviction, Jennings filed a state habeas petition claiming that he had received ineffective assistance of counsel because his attorneys had not asked his family to testify about his disadvantaged background, nor presented psychological reports as evidence that he suffered from a mental defect. The trial court found that the attorneys’ choice not to contact Jennings’ family for testimony was a reasonable trial strategy, and thus Jennings had not received ineffective assistance of counsel. The state court also found that Jennings was not mentally challenged, so his attorneys did not need to present evidence of a mental defect. The Texas Court of Criminal Appeals, upon the state court’s recommendation, denied Jennings’ request for habeas relief.
In 2009, Jennings filed a federal habeas petition claiming that he had received ineffective assistance of counsel at the punishment phase of his trial because: (1) his attorneys had not asked his family to testify about his disadvantaged background; (2) his attorneys had failed to discover and present psychological reports as evidence that he suffered from a mental defect; and (3) his attorney’s statement during closing arguments that he could not “quarrel with” a death sentence was not based on a reasonable trial strategy. The District Court for the Southern District of Texas granted his request for a new sentencing hearing on the first two grounds, but not the third. Respondent William Stephens, the Director of the Texas Department of Criminal Justice, Correctional Institutions Division, appealed to the Fifth Circuit.
Before the Fifth Circuit, Jennings argued that the district court’s holding was correct and also argued that he had received ineffective assistance of counsel during the closing argument. Stephens argued that the Fifth Circuit did not have jurisdiction to consider the cross-point because Jennings had failed to timely request a Certificate of Appealability (“COA”) as required by 28 U.S. §2253. Jennings filed a motion two days later requesting that the Fifth Circuit issue a COA on this claim. Stephens asserted that, because Jennings did not timely request a COA or file a cross-notice of appeal, the Fifth Circuit lacked jurisdiction to consider the cross-point. The Fifth Circuit decided that it did not have jurisdiction to consider the cross-point, held in favor of Stephens on the issue of ineffective counsel, and reversed the district court’s judgment.
On March 24, 2014, the Supreme Court granted certiorari to determine whether Jennings needed to file a separate notice of appeal and motion for a COA to raise an alternative argument supporting the district court’s judgment.
Analysis
In this case, the Court must determine whether a federal habeas petitioner must file a cross-appeal, obtain a certificate of appealability (“COA”), or both to raise additional grounds, on which he or she was unsuccessful, to support the judgment of the district court on appeal. Jennings argues that he could file a cross-point without filing a motion for cross-appeal or obtaining a COA. Stephens argues that at least one, if not both, was necessary for the Fifth Circuit to have jurisdiction over the case.
DOES A PETITIONER HAVE TO CROSS-APPEAL TO RAISE A PREVIOUSLY UNSUCCESSFUL ARGUMENT ON APPEAL?
Jennings argues that he did not need to appeal the aspects of his ineffective assistance of counsel claims on which he was unsuccessful, those relating to his attorney’s closing argument at the sentencing hearing, because the district court granted everything he requested based on his past counsel’s research and witness preparation errors. Jennings asserts that since the judge ordered a new sentencing hearing and denied summary judgment against him, Jennings had nothing to appeal. He argues that he could have received no additional relief from an order that also happened to mention his attorney’s other grave errors anyway, and so was even prevented from taking an appeal when the prosecution appealed.
Stephens disagrees and argues that Jennings not only could, but was also required to, appeal his additional ineffective counsel claim. First, Stephens asserts that an ineffective assistance of counsel claim in one area, like witness preparation, is conceptually distinct from a claim that one’s lawyer was inadequate in a sentencing hearing closing argument. In support of this view, Stephens submits the two violations are under different cases: a “Wiggins claim” (improper witness preparation) and a “Spisak claim” (improper closing arguments). Because these claims are distinct, Stephens argues, Jennings sought to enlarge his rights with additional relief—namely, an expanded conditional release order that would require the state to cure his “Spisak claim”—and thus had to cross-appeal.
Jennings rejects the idea that his claims are distinct as too theoretical, contending that submitting an additional instance of attorney incompetence is “merely assert[ing] additional grounds why the decree should be affirmed,” not commencing a new constitutional examination. Jennings argues that the key issue concerns the individual relief for a petitioner: if the additional order would result in material change like an acquittal, dismissal, or new trial, then the appeal would be mandatory.
Stephens, on the other hand, contends that allowing additional grounds here would produce obscure results: he argues that a hypothetical habeas corpus claimant who won on either a Wiggins or Spisak ineffective assistance of counsel claim would, under Jennings’ logic be foreclosed from appealing a loss on a coerced confession claim; and thus to avoid this, Jennings’ lack of appeal must be dispositive. Furthermore, Stephens calls Jennings view of the court-order “reductionist,” having too little regard for the constitutional meaning behind due process-ameliorating orders.
DOES A PETITIONER HAVE TO OBTAIN A COA TO RAISE A PREVIOUSLY UNSUCCESSFUL ARGUMENT?
DOES THE AEDPA MANDATE A COA HERE?
The other aspect of Jennings’ appeal before the Court involves obtaining a COA as required by § 2253, passed under the Antiterrorism and Effective Death Penalty Act (“AEDPA”). First, Jennings maintains that this requirement does not apply to a case where an appellee is raising alternative grounds for affirmance Second, Jennings argues that even if some appellees need a COA, Jennings does not need one in this case because he prevailed and is not asking for additional relief. Third, Jennings argues that AEDPA’s purposes can be fulfilled while allowing for cases such as his when he has won on the merits below: because an ineffective assistance claim is viewed in its “totality,” its “essence,” Jennings argues he has already passed the gate to federal court. Finally, Jennings argues that he did not need to obtain a COA under Federal Rule of Appellate Procedure 22(b) or Habeas Corpus Rule 11(a) because Stephens, not Jennings, appealed the district court’s decision.
Stephens accepts the reasoning of the Fifth Circuit—that a habeas applicant must obtain a COA in order to assert any ground that district court has not adopted—and argues that petitioners for the writ of habeas corpus must get permission to appeal for each issue, not the overall claim. Stephens relies on the statutory text of § 2253, which specifically mentions issues and not claims; he argues that courts routinely grant or deny COAs on issues that are clearly not “subsumed” into broad substantive claims because they are procedural, like technical hurdles or standards of review. Stephens adds that refusing to separate individual issues within claims is contrary to the purpose of the AEDPA and § 2253, which aim to serve as gates between habeas corpus petitioners and the federal courts. Moreover, Stephens argues that limiting a COA requirement only to when the petitioner appeals would shortchange the statute and its purpose to conserve judicial resources. Finally, Stephens asserts that Jennings needed a COA on his Spisak claim—which Stephens argues is a separate claim from his other ineffective counsel arguments.
COULD THE FIFTH CIRCUIT GRANT A COA?
Jennings contends the Fifth Circuit’s determination that it lacked jurisdiction to issue a COA is incorrect because it is not supported by either § 2253 or a Supreme Court rule interpreting it, and indeed is even contrary to the rule only requiring COAs when a petitioner receives an order adverse to him or her. Jennings claims that he did not need to seek a COA at the district court level because he had received all the relief he request—a new sentencing hearing. In any case, Jennings argues that the Fifth Circuit should have remanded the case to the district court, for the limited purpose of considering whether to issue a COA.
Stephens argues that the Fifth Circuit in effect did actually rule on the merits rather than dismissing it for want of jurisdiction. Stephens asserts that Fifth Circuit found the claim about closing-argument to be so meritless as to dismiss it summarily. According to Stephens, even if Jennings prevails on the question, he would only receive a remand for an issue that the Fifth Circuit has already rejected as too insubstantial for serious debate.
Discussion
This case presents the Supreme Court with the opportunity to decide whether a federal habeas petitioner, who has won in a district court, needs to file a separate notice of appeal, motion for COA, or even both in order to raise an alternative argument supporting the district court’s judgment. Stephens argues that the appellate court lacks jurisdiction to hear Jennings’ cross-point because Jennings did not timely file a COA or cross-appeal his alternative argument. Jennings argues that being allowed to present his alternative argument is consistent with sound judicial and congressional efficiency policies. The Court’s resolution of this case will not only have significant consequences for petitioner, a death row inmate, but also important implications for habeas corpus appeals.
JUDICIAL EFFICIENCY
Stephens avers that the purpose of the 28 U.S.C. § 2253 (“§ 2253”), a statute governing appeals, is to filter out baseless claims in order to ensure that the courts are not overburdened with frivolous litigation. Stephens argues that allowing habeas petitioners to appeal a decision on alternative grounds without first filing a COA would conflict with this underlying policy goal of § 2253, because attorneys whose clients face capital punishment have an incentive to present as many claims as possible. He posits that, if a petitioner could present countless claims on appeal even though they only won on a single claim, courts could be inundated with frivolous claims.
Jennings counters that excluding an alternative argument in support of the district court’s judgment would not make the judicial process any more efficient, because the claim is already before the appeals court. In Jennings’ view, although requiring a COA for alternative arguments could reduce the number of issues before the court, the extra time that it would take to review the COA would outweigh this benefit. Jennings also contends that requiring habeas petitioners to cross-appeal alternative arguments in support of a judgment is inconsistent with judicial policy, because it would “disrupt the briefing schedule, [increase] . . . the number of briefs, and . . . make the case less readily understandable to the judges." Jennings believes that this requirement would complicate the appeal process because a habeas petitioner would be forced to file a cross-appeal for every possible alternative argument he might present.
Conclusion
In this case, the Supreme Court will consider whether a defendant who won relief below can, without filing a cross-appeal or COA, support that relief with a ground on which he lost. In particular, the Court’s decision will affect the life of Jennings, a death row inmate. More generally, the Court’s decision will affect the calculus of prosecutors and defense counsel all over the nation. Prosecutorial discretion, defense litigation strategy, and the life and liberty of numerous defendants hang in the balance.
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Additional Resources
- Bonnie Barron: Texas cop killer may dodge penalty, Courthouse News Service (Apr. 27, 2012).
- Debra Cassens Weiss: Did procedural misstep bar defendant from raising lawyer's capital concession? SCOTUS to decide, ABA Journal (Mar. 24, 2014).