Argument preview: What can a federal habeas petitioner argue when defending a judgment in his favor?
Despite all the money and resources poured into Supreme Court amicus briefs these days, it is relatively rare that an amicus substantially influences the central merits of a case. However, an amicus brief filed by the Criminal Justice Legal Foundation in Jennings v. Stephens, the second argument this Wednesday, may be such a brief. It provides a balanced analysis of the legal question presented — although the ultimate disposition that the brief suggests may prove too much for some of the Justices.
Facts and proceedings
This is a death penalty case from the Texas state courts, coming to the Supreme Court after a federal district court granted federal habeas relief but the Fifth Circuit reversed. Jennings, with a record of prior robberies, shot and killed a Houston police officer while robbing a store. His guilt is not at issue; the case challenges only his sentence.
After the Texas appellate courts denied relief, Jennings filed federal habeas claims alleging ineffective assistance of counsel (“IAC”). He alleged three deficiencies: (1) a failure to investigate and present mitigating background evidence; (2) a failure to investigate and present mitigating psychological evidence; and (3) a deficient closing argument. On this last claim, it is undisputed that, whatever else was argued in closing (the state opinions are unpublished and the briefs only partially quote the arguments), Jennings’s lawyer said to the jury:
“I feel like I ought to just sit down. Shoot, you twelve people know what the evidence is. You’ve probably already decided…. [And if the jury could not see some way to vote for life over death], I can’t quarrel with that.”
The federal district court ruled in Jennings’s favor on the first two grounds, but not on the third.
On appeal, the Fifth Circuit reversed the judgment and ordered that habeas relief be denied. The state had argued that the district court had failed to be sufficiently deferential to the state court judgment and findings regarding the first two “mitigation evidence” grounds. In response, Jennings had disputed the state’s arguments, but also argued that relief should be affirmed on the third ground: that his lawyer’s closing argument had been constitutionally ineffective. In reply, Texas argued that (1) Jennings had not filed a notice of cross-appeal from the rejection of his closing argument ground, and (2) Jennings had also failed to obtain a “certificate of appealability” (COA) – a special statutory requirement (28 U.S.C. 2253) that must be met for a defendant to appeal in federal habeas cases – for his closing argument issue. Texas argued that these failures barred the Fifth Circuit from considering the merits of Jennings’s closing argument issue.
In an unpublished opinion, a three-judge panel of the Fifth Circuit agreed with Texas (and rehearing was subsequently denied). First the panel ruled that Jennings’s failure to file a notice of appeal concerning his closing argument “claim” was a jurisdictional flaw under Bowles v. Russell and Federal Rule of Appellate Procedure 4(a) (although neither authority expressly addresses cross-appeals). Second, while noting that “circuit courts of appeal are split,” the panel ruled that a federal habeas defendant, even when acting as appellee, must seek a COA from the district court if he wants to present any “grounds for relief not adopted by the district court.” Finding that Jennings had not affirmatively argued that filing a notice of cross-appeal or seeking a COA was unnecessary to establish jurisdiction, the panel “dismissed” his closing argument point because “[a] party seeking to invoke a court’s jurisdiction must advance arguments establishing jurisdiction.”
The parties’ diametrically opposed arguments
Since Congress amended the federal habeas corpus statutes in 1996, the path to federal habeas relief from a state court conviction has become a complicated one. This case is one of many that attempt to untangle one aspect of the web.
The parties’ briefs are, unsurprisingly, diametrically opposed. Jennings argues that a party traditionally may present any argument (that was presented below) to defend a judgment, without filing a cross-appeal. Here, the district court’s judgment simply ordered a new sentencing hearing, and Jennings says his closing argument issue is merely an alternative ground for affirmance of the district court.
As for a COA, Jennings points out that the habeas statute requires a COA only for “an appeal … taken” by a petitioner, so it does not apply to a petitioner arguing against the state’s appeal. (The state’s notice of appeal undoubtedly gave the Fifth Circuit jurisdiction over the judgment – no COA is statutorily required for a state’s habeas appeal.) Jennings also argues that, as at least two circuits have held, the absence of a district court COA is not a jurisdictional flaw. Thus the Fifth Circuit could and should either have issued a COA on its own, or remanded to the district court to see if a COA was appropriate.
Texas disputes every point. First, it says that Jennings’s argument would have “expanded” the judgment, by giving him a new sentencing hearing that was not only free of mitigating evidence errors, but also free of closing argument deficiency. Frankly, that response seems to border on frivolous, because any new sentencing hearing would presumably have to be free of prejudicial errors of all kinds. But it gives you a flavor of how adamantly Texas seeks to defend its judgment.
More centrally, Texas argues that a separate “claim” always requires a separate notice of appeal. Jennings replies that he did not seek to raise a separate “claim” but merely to present “an additional argument” in support of his IAC claim.
As for the COA, Texas points out that the statute requires that it “indicate which specific issue or issues” will be argued, and that this statutory issue-identification function should require a defendant to seek a COA on any new issues he wants a circuit to consider on appeal. Texas argues that the majority of circuits have adopted this view, which Texas says represents “the better reading of the statute.” One can predict that Wednesday’s argument will rehearse the Justices’ varying views on how to read the 1996 habeas amendments, which have been the subject of a number of five-four decisions since that time.
Finally, Texas argues that the Fifth Circuit’s statement that Jennings’s “motion for a COA is denied” implicitly shows that it had “already . . . considered [Jennings’ closing argument] claim on the merits and rejected it. ….This means that the court of appeals has already … found it so weak as to not present a debatable question.” That seems like quite a lot to read into the simple word “denied.” But this argument can’t be entirely discounted, given the Court’s decision in Harrington v. Richter two Terms ago (which suggests such implicit expansion when evaluating state court rulings – although this one is federal) and the Justices’ heated disagreements generally about the availability of federal habeas corpus relief.
A helpful amicus analysis
It was no accident that the 1996 amendments to the federal habeas law were called the “Anti-terrorism and Effective Death Penalty Act” (otherwise known as AEDPA, pronounced “ed-pah”). Discontent regarding federal courts “interfering” with state court judgments in capital cases, and consequent long delays before executions, powered AEDPA to enactment. The Criminal Justice Legal Foundation was founded well before AEDPA, but it shares a similar goal: to “remov[e] legal obstacles to the use of” the “most powerful deterrent to criminal behavior” – “the government’s ability to efficiently apprehend, prosecute, and punish criminals in a swift and decisive system of justice.” CJLF’s national legal director, Kent Scheidegger, has tirelessly filed amicus briefs in many major capital cases, advocating speedier affirmance, and quicker (or no) federal review, of state death penalty judgments.
The CJLF brief is the only amicus brief filed in this case – a relatively rare phenomenon these days. I found it, however, to be extremely helpful in simplifying the intricacies of this case, particularly because the parties’ claims are so diametrically opposite. A “claim,” says CJLF, is different than an “argument,” and IAC is a single “claim” for relief, even if comprised of several different arguments. As such, says CJLF, there should be no separate requirement for a notice of cross-appeal, or a COA, for a habeas petitioner to present all arguments that might support a “claim” of IAC. Coming as it does from a group that generally supports capital punishment and opposes lengthy federal habeas review, this well-supported position would seem to carry especial weight. Moreover, CJLF argues that supporting Jennings’s simpler procedural position here will actually further Congress’s purpose of avoiding “uncertainty … confusion, and the resulting delays.”
But rest assured, CJLF is not supporting merits relief for a capital defendant here. Although the Fifth Circuit may have erred in dismissing Jennings’s closing argument claim, CJLF argues that any error was harmless, because the district court’s denial of relief on that claim was “so clearly correct” that no remand is necessary. “The present case has been delayed too long already,” says CJLF (since the killing twenty-six years ago), and the Fifth Circuit’s “procedural hiccup” should not further delay the case.
On this last point, of course, a number of the Justices are likely to disagree. Whether that number will add up to five may be the real question in this case. A defense lawyer who tells capital jurors that if they vote for death, “I can’t quarrel with that,” surely raises serious questions of deficiency and prejudice. The normal course, if one believes the Fifth Circuit erred in dismissing these questions, would be to remand for consideration on the merits. Wednesday’s argument may reveal whether CJLF’s “harmless beyond reasonable doubt” argument has traction with a majority of Justices (although one hardly imagines that a remand would long delay the Fifth Circuit on the merits in this case). The value of the Court’s decision will be in the procedural guidance that it provides not so much for Jennings as for the many federal lawyers and courts handling federal habeas cases and appeals across the country.