A second look at a death-row prisoner’s ineffective-assistance-of-counsel claim


sketch of numerous cameras lined up outside the supreme court

The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

It was a big week for relisted cases. The Supreme Court granted review on a case raising the question whether Andy Warhol paintings made using a copyrighted photograph were so “transformative” as to be a non-infringing “fair use.”  The court also agreed to take a case involving a death-row inmate’s claim that he is entitled to relief because he was sentenced to death based in part on concerns about his future dangerousness, but he was unable to tell the jurors that he would never be released from prison if spared the death penalty.

Perhaps most interesting for relist nerds, the court granted review in seven-time relist National Pork Producers Council v. Ross, involving a dormant commerce clause challenge to a California law prohibiting the sale of pork unless the pigs from which it was made (virtually all of which come from outside the state) were raised consistent with the state’s restrictive standards. Similar constitutional challenges have been brought against a range of California laws governing subjects from foie gras to low-carbon fuel, but despite a relist or two along the way, the court has taken none of them. The large number of relists suggests some reluctance to take the case, possibly because of the wide range of views the justices have on dormant commerce doctrine. Granting a case that has been relisted so many times is something of a rarity.  There are only a handful of cases that have been relisted more times before being granted, including Dobbs v. Jackson Women’s Health Organization (rescheduled nine times, then relisted 12 times), and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (relisted 14 times). As a statistical matter, a case that the Supreme Court repeatedly relists is more likely to be the subject of an opinion respecting denial or — where existing precedent is clear — a summary reversal or vacatur.

Case in point: Texas v. Commissioner of Internal Revenue, 21-379. That case, which involved Texas’ challenge to a regulation that delegated governmental authority to an actuarial group to set standards for Medicaid reimbursement, had been rescheduled twice and relisted six times going into last Friday’s conference. Instead of a grant, the state had to settle for an opinion respecting denial of cert, written by Justice Samuel Alito, and joined by Justices Clarence Thomas and Neil Gorsuch.  They said denial was appropriate because of so-called vehicle problems, that is, “threshold questions that could complicate our review.” But the trio said the issue was “important” and there was a “need to clarify the private non-delegation doctrine in an appropriate future case.” So at least three justices are interested in the issue, and it only takes four votes to grant.

That brings us to this week’s sole new relist, Andrus v. Texas, a capital case from the Lone Star State. This case will be familiar to our readers, because during its last trip to the Supreme Court (during the 2019-20 term), it was relisted a whopping 20 times. After lingering on the court’s docket for more than a year, the Supreme Court issued a summary reversal, ruling in an unsigned opinion that death-row prisoner Terence Andrus had demonstrated that his lawyer provided constitutionally ineffective performance at sentencing by failing to investigate or introduce mitigating evidence. The Supreme Court instructed the Texas Court of Criminal Appeals to consider whether counsel’s inadequate performance had prejudiced Andrus – that is, whether but for counsel’s deficient performance, the mitigating evidence might have prompted at least one juror to opt for a sentence of life without parole rather than the death penalty.

On remand, the Texas court ruled that the inadequate counsel had not prejudiced Andrus. On his second trip to the Supreme Court, Andrus — supported by eight amicus briefs — argues that the Texas court failed to follow the Supreme Court’s guidance for conducting prejudice analysis. In particular, Andrus argues that the Texas court dismissed what the Supreme Court called “vast tranches of mitigating evidence,” finding it ”not particularly compelling.” And despite the Supreme Court’s directives, the Texas court failed to consider how Andrus’ lawyer’s deficient performance distorted the trial record and also ignored new mitigating evidence, instead focusing solely on the state’s aggravating evidence. Andrus argues that the Texas court “disregard[ed] this Court’s determinations and legal precedents to strain for a result that it prefers,” and in the process violated “vertical stare decisis,” the principle that lower courts must follow the Supreme Court’s decisions.

That’s all for this week. Until next time, stay safe!

New Relist

Andrus v. Texas, 21-6001
Issues: (1) Whether, on remand, the Texas court rejected the Supreme Court’s conclusions in Andrus v. Texas, which were amply supported by the habeas and trial records, and whether the Texas court disregarded the Supreme Court’s express guidance for conducting a prejudice analysis pursuant to Strickland v. Washington; and (2) whether the Texas court’s failure to adhere to the Supreme Court’s decision conflicts with our constitutional system of vertical stare decisis and creates widespread confusion regarding the proper legal standard that courts must use in assessing whether the Sixth Amendment right to effective assistance of counsel is violated in death-penalty cases.
(rescheduled before the Jan. 14, Jan. 21, Feb. 18, Feb. 25, March 4, and March 18 conferences; relisted after the March 25 conference)

Returning Relists

Love v. Texas, 21-5050
Issues: (1) Whether Texas’ Court of Criminal Appeals, the only court of last resort reviewing direct appeals in death penalty cases, has decided an important federal question concerning a racially biased juror being allowed on a capital death penalty jury in violation of petitioner Kristopher Love’s rights under the Sixth and 14th Amendments to the United States Constitution; and (2) whether Texas’ Court of Criminal Appeals, the only court of last resort reviewing direct appeals in death penalty cases, has decided an important federal question concerning a racially biased juror in a way that conflicts with relevant decisions of the Supreme Court in violation of Love’s rights under the Sixth and 14th Amendments to the United States Constitution.
(relisted after the Jan. 7, Jan. 14, Jan. 21, Feb. 18, Feb. 25, March 4, March 18 and March 25 conferences)

Reed v. Goertz, 21-442
Issue: Whether the statute of limitations for a 42 U.S.C. § 1983 claim seeking DNA testing of crime-scene evidence begins to run at the end of state-court litigation denying DNA testing, including any appeals (as the U.S. Court of Appeals for the 11th Circuit has held), or whether it begins to run at the moment the state trial court denies DNA testing, despite any subsequent appeal (as the U.S. Court of Appeals for the 5th Circuit, joining the U.S. Court of Appeals for the 7th Circuit, held below).
(relisted after the Feb. 18, Feb. 25, March 4, March 18 and March 25 conferences)

Lewis v. United States, 20-7617
Issues: (1) Whether the First Step Act’s addition of a definition for “felony drug offense” to Section 102 of the Controlled Substances Act also alters the definition of a “serious drug offense” for purposes of applying a sentence enhancement under the Armed Career Criminal Act; and (2) whether the Armed Career Criminal Act, in the absence of a clear statutory definitions of “convictions” and “committed on occasions different from one another,” is unconstitutionally vague.
(relisted after the March 18 and March 25 conferences)

Williams v. United States, 20-7798
Issues: (1) Whether sequential drug transactions over a short time frame are “committed on occasions different from one another” for purposes of the Armed Career Criminal Act when the same undercover law enforcement officer repeatedly bought personal-use amounts of a controlled substance from a suspect; and (2) whether, in the absence of an appeal waiver as part of a plea agreement, a prosecutor’s increased sentencing recommendation and a district court’s imposition of a longer sentence following a defendant’s attempt to preserve objections to a presentence investigation report amount to prosecutorial or judicial vindictiveness, or whether the more onerous recommendation and sentence are legitimate responses to the defendant’s purported failure to accept responsibility for his offense.
(relisted after the March 18 and March 25 conferences)

Brown v. United States, 21-6448
Issues: (1) Whether the courts should employ a purely temporal approach or a “totality of the circumstances” test when interpreting the Armed Career Criminal Act’s phrase, “committed on occasions different from one another”; and (2) whether, in the event that the Supreme Court finds the ACCA’s phrase, “committed on occasions different from one another” ambiguous, it should remand Joseph Brown’s case for resentencing under the provisions of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2).
(relisted after the March 18 and March 25 conferences)

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