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Court issues orders, but no grants, from November 3 conference

This morning the Supreme Court issued orders from its November 3 conference. For the second week in a row, the justices did not add any new cases to their merits docket for the term. However, they did issue two summary decisions, without briefing on the merits or oral argument, reversing rulings by federal appeals courts in favor of inmates.

Both cases involved questions of federal habeas law – that is, the law governing efforts by state prisoners to challenge the constitutionality of their convictions in federal court. Under the Antiterrorism and Effective Death Penalty Act, such inmates face a high bar. They must show not only that the state court decision against them was wrong, but also that the decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” And neither inmate in today’s cases, the court concluded, could clear that bar.

Michael Cuero, the inmate in the first summary reversal, Kernan v. Cuero, was responsible for a car crash that left another man with grave injuries; Cuero, who was on parole for earlier drug convictions, was under the influence of methamphetamines at the time and was illegally carrying a loaded gun.

Cuero pleaded guilty to charges that would have led to a sentence of approximately 14 years. But before he was sentenced, prosecutors sought to amend the criminal complaint against him to account for two other felony convictions, including assault with a deadly weapon – which would qualify as a second “strike” under California’s “three strikes” law. The trial court granted the prosecutors’ request and permitted Cuero to withdraw his guilty plea. Prosecutors then struck a new deal with him, in which he pleaded guilty and was sentenced to 25 years.

Cuero’s case eventually made its way to the U.S. Court of Appeals for the 9th Circuit, which ruled that the trial court’s decision to allow prosecutors to amend the complaint was contrary to, and an unreasonable application of, clearly established federal law. The court of appeals reasoned that Cuero had a due-process right to have his first plea agreement enforced, and it ordered the federal district court handling Cuero’s case to require the state to resentence him with his original plea deal.

The state – on behalf of the head of the state prison system – asked the Supreme Court to review that ruling. After considering the case at four consecutive conferences, the Supreme Court today reversed. In an unsigned eight-page opinion, the justices reasoned that, even if the state’s efforts to amend the complaint violated the Constitution, there are no Supreme Court cases that “clearly establish” Cuero’s right to have the first plea deal enforced as a remedy for that violation.

In Dunn v. Madison, the state of Alabama asked the Supreme Court to review a decision by the U.S. Court of Appeals for the 11th Circuit blocking the execution of Vernon Madison, who in 1985 shot a police officer in the back of his head and killed him; the officer was helping to protect Madison’s former girlfriend while Madison moved out of their house. Madison also shot the former girlfriend in the back while she was trying to run to safety, but she survived.

Under the Supreme Court’s case law, the Eighth Amendment bars the government from executing a prisoner who is insane. During Madison’s state post-conviction proceedings, an expert hired by Madison’s own lawyers testified that although Madison understood what his sentence meant, he did not remember committing the murder; an expert appointed by the court testified that Madison could remember other details from his life around the time of the murder. The state post-conviction court ruled that Madison was competent to be executed, but the 11th Circuit concluded that the state court’s decision was “patently unreasonable” – and therefore Madison was entitled to federal habeas relief – because Madison is “a man with no memory of what he did wrong.”

In a four-page unsigned opinion, the Supreme Court reversed the appeals court’s ruling in Madison’s favor. The Supreme Court cases on which the 11th Circuit relied, the opinion explained, did not clearly establish that a “prisoner is incompetent to be executed because of a failure to remember his commission of the crime, as distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in this case.” Here, the opinion continued, the state court’s application of those Supreme Court cases was not unreasonable “when it determined that Madison is competent to be executed because—notwithstanding his memory loss—he recognizes that he will be put to death as punishment for the murder he was found to have committed.”

Justice Ruth Bader Ginsburg wrote a one-paragraph concurring opinion, joined by Justices Stephen Breyer and Sonia Sotomayor. Ginsburg stressed that the constitutional question at the heart of the case – whether the state can execute someone who does not remember the crime for which he has been sentenced to death – “is a substantial question not yet addressed by the Court” that would, at the right time, “warrant full airing.” But, she added, this is not the right case in which to address that question, because of the limitations imposed by AEDPA.

In a separate concurring opinion not joined by any of his colleagues, Breyer once again – as he has repeatedly over the past several years – suggested that the Supreme Court should revisit the broader question whether the death penalty is constitutional. Breyer began by observing that Madison’s case “illustrates one of the basic problems with the administration of the death penalty itself”: the “unconscionably long periods of time that prisoners often spend on death row awaiting execution.” The 67-year-old Madison has been on death row for 32 years. He “has suffered severe strokes”; he cannot walk, and he is “legally blind” and “incontinent.” Breyer went on to note that this is not an anomaly, and that the United States “may face ever more instances of state efforts to execute prisoners suffering the diseases and infirmities of old age.” But, he suggested, the correct response is not necessarily to “develop a constitutional jurisprudence that focuses upon the special circumstances of the aged,” but instead to “reconsider the root cause of the problem—the constitutionality of the death penalty itself.”

The justices will meet for their next conference on Thursday, November 9.

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Court issues orders, but no grants, from November 3 conference, SCOTUSblog (Nov. 6, 2017, 11:48 AM),