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    January 30, 2023

    Fall 2022 Pending SCOTUS Cases

    In fall 2022, the U.S. Supreme Court heard oral arguments in three cases involving narrow questions of procedure and statutory construction with broad implications for the ability of prisoners to receive judicial review of the merits of their claims.

    Cruz v. Arizona, No. 21-846

    The availability of a natural life sentence has been demonstrated to be one of the most important factors determining whether judges and juries vote for life in capital cases. The U.S. Supreme Court’s 1994 decision Simmons v. South Carolina held that a defendant is entitled to inform a capital jury of his ineligibility for parole when future dangerousness is at issue. In November 2022, the U.S. Supreme Court in Cruz v. Arizona considered whether a state procedural rule is an “adequate and independent” state law ground to preclude relief on a prisoner’s due process claim that he was barred from informing his jury he was ineligible for parole if they spared his life.   

    For two decades, Arizona trial courts deviated from the instruction of Simmons. At the time of John Montenegro Cruz’s 2005 trial, Arizona courts routinely denied requests to give the jury accurate sentencing information, even though the state abolished parole in 1994.  This result was affirmed by Arizona courts on direct appeal and a first round of post-conviction review. This practice ended in 2019 when the Supreme Court issued a summary reversal in Lynch v. Arizona, instructing Arizona to follow Simmons. Armed with Lynch, Cruz filed a second state post-conviction petition. While successive petitions are normally barred under state procedural rules, Arizona Rule of Criminal Procedure 32.1(g) specifically permits petitions when there has been “a significant change in the law.” The Arizona Supreme Court denied relief anyway on the novel distinction that Lynch was not a significant change in law, only a significant change in the application of the law.

    The Supreme Court granted certiorari on the narrow question of whether Rule 32.1(g) is an adequate and independent state-law ground to preclude relief.  The Supreme Court does not have jurisdiction to review a federal claim when it rests on a state law ground that is both “independent” of federal law and “adequate” to support the judgment. The Court’s somewhat unusual framing of the question presented combined the jurisdictional and substantive inquiries into one, and much of the oral argument was focused on the underlying question of whether the state’s imposition of a procedural bar was permissible. Counsel for Cruz argued that Lynch overturned decades of Arizona precedent and was a “significant change,” meaning that imposition of a procedural bar by the state courts was improper. But Justices Thomas and Alito appeared inclined to side with the State, with Justice Thomas querying whether there was even any federal issue for the Court to decide and Justice Alito suggesting that states are permitted to limit their own post-conviction review process. Cruz’s counsel argued that Arizona’s bar was inadequate because it was a novel application of the rule and interfered with the exercise of federal rights. State laws that are adequate to preclude Supreme Court review must be “firmly established and regularly followed,” and state rules must not be so unduly burdensome that they deny the exercise of federal rights. Justice Kagan remarked that Kafka would have loved the state’s “tails you win, heads I lose” approach. Justice Barrett called the state’s argument “hair-splitting,” and Justice Kavanaugh noted that no states had joined Arizona as amici. Justice Jackson pointed out that Arizona was providing other states a “roadmap for defying this courts criminal law decisions.”

    Jones v. Hendrix, No. 21-857

    On the same day, the Court heard arguments in another case tackling how prisoners may seek relief following a retroactive change in law that dramatically benefits them—or whether procedural hurdles leave them out of luck.  Jones v. Hendrix considers whether a non-capital federal prisoner can utilize 28 U.S.C. § 2255(e)’s “savings clause” to seek federal habeas relief under § 2241. In 1999, Marcus Jones received a 27-year sentence following convictions in a federal Missouri court for being a felon in possession of a firearm and making a false statement to acquire a firearm. Jones testified at trial that he honestly believed his felony convictions had been previously expunged and no longer barred him from possessing firearms. His trial jury was not instructed to find whether Jones knew he had the relevant status because, at that time, the statute was construed not to require this mens rea element. In 2002, Jones filed a motion to vacate under 28 U.S.C. § 2255 which did not include the mens rea issue—because the law then foreclosed the claim—and lost. Twenty years after Jones’s trial, the Court held in Rehaif v. United States that the government “must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.” The new rule in Rehaif applies retroactively to cases on collateral review.

    Jones faced a complicated procedural landscape to relief.  Section 2255 requires federal prisoners’ post-conviction motions to be filed under that section. It also prohibits a second § 2255 motion to vacate unless they can either make a strong showing of innocence, an insurmountable burden in most cases, or raise a new retroactive constitutional rule, not relevant to Jones because Rehaif is statutory.  However, § 2255(e) provides a “savings clause” which states that a prisoner may seek a remedy outside of § 2255 if that section is “inadequate or ineffective to test the legality of detention.” Jones thus filed his Rehaif claim under the traditional but infrequently used habeas corpus statute for federal prisoners, 28 U.S.C. § 2241. The Eighth Circuit Court of Appeals affirmed dismissal for lack of jurisdiction. The savings clause permitting him to file under § 2241 was inapplicable, it held, because Jones’ § 2255 motion from 2002 was, in fact, “adequate and effective to test the legality of his detention.” Nothing was stopping him from filing a Rehaif-esque claim back then, even though he would have lost. It reasoned, “‘to test’ means ‘to try’. . . [T]he saving clause is interested in opportunity, not outcome.” The Court took cert to resolve a 7-2 circuit split, with 7 courts holding that petitions under § 2241 under these circumstances are proper.

    Three positions were at issue during argument. First, Jones’ position was that § 2241 is the proper vehicle for bringing a claim following a new retroactive rule of statutory construction, and thus his conviction should be vacated. The Solicitor General took the position that the § 2241 petition was proper but insisted Jones must demonstrate factual innocence to be consistent with modern rules severely limiting successive habeas corpus petitions to errors resulting in the conviction of one who is factually innocent. Private counsel was appointed to defend the Eighth Circuit decision since the government had changed its position. Chief Justice Roberts framed the case as “a conundrum” because Jones was attempting to disrupt final claims and revive the kinds of claims Congress wanted to limit, while the Eighth Circuit’s approach results in a savings clause that “doesn’t save anything.” Justice Sotomayor observed that it did not need to be “either/or” and suggested taking an approach that would permit § 2241 petitions when necessary to prevent a miscarriage of justice, an approach in line with most federal courts. Justice Jackson tried to disentangle the complicated statute by proposing that §§ 2255(e) and (f) do not interact, but that the statute is more like a roadmap of decisions. Justices Sotomayor, Kagan, and Jackson were the most vocal, peppering the government and appointed lawyers with questions, with several of the  remaining justices relatively quiet, suggesting the possibility that a majority could be comfortable with the Eighth Circuit’s interpretation of a savings clause that permits Jones to sit in prison for conduct that no longer amounts to a crime.

    Reed v. Goertz, No. 21-442

    Last October, the Court heard arguments in Reed v. Goertz, a case asking when the limitations period starts to run in a federal suit contending that a state’s procedures for seeking DNA testing are insufficient. The Supreme Court decided a decade ago in Skinner v. Switzer that state prisoners can obtain DNA testing of crime scene evidence in a § 1983 civil rights suit if they have sought testing unsuccessfully under the state’s available procedures and can show that the state law amounts to a denial of due process.

    Rodney Reed was sentenced to death in Texas for the 1996 rape and murder of Stacey Stites. It is undisputed that Reed’s DNA was found in Stites’ vaginal tract. But Reed, who is Black, protested his innocence, explaining that he was having a clandestine affair with Stites, who is white, behind the back of her fiancé, a white police officer. Reed has argued that the more likely scenario is that Stites’ fiancé killed her because he found out about the affair, pointing to the fiancé’s conflicting accounts and inculpatory comments. In 2014, Reed relied upon the Texas DNA statute to seek post-conviction testing of several pieces of evidence found near Stites’ body that could shed light on who killed her. The state trial court denied all testing in November 2014 and again in 2016, after additional fact-finding.  The Texas Court of Criminal Appeals upheld the trial court’s denial in April of 2017 and denied reconsideration in October of 2017.  In August 2019, Reed filed a 42 U.S.C. § 1983 complaint in federal court, contending that several aspects of the Texas DNA statute are unconstitutional, including, for instance, a requirement to show the evidence had not been contaminated. The Fifth Circuit never reached the merits, stating that Reed’s claim was untimely and that Reed knew or should have known of his injury in November 2014—the date that the trial court first denied Reed’s request for post-conviction testing.  Because the limitation period was two years, the statute would have run in November 2016, when Reed’s case was still on remand in the Texas trial court.

    The Supreme Court granted cert in April 2022, nearly seven months after the cert petition was originally filed. By the time oral argument took place in October, both parties had rejected the approach of the Fifth Circuit. Reed argued that the statute began when rehearing was denied in the Texas Court of Criminal Appeals (October 2017), the date the appeal was final. The State argued for the date of that court’s denial seven months earlier (April 2017), contending that “rehearing changed nothing.”  Justice Kagan replied that it would be simpler to wait until the court of appeals process is concluded. Justice Sotomayor noted that the Supreme Court’s own rules look to the date that rehearing was denied to calculate the deadline to file a cert petition. Justice Jackson appeared to agree, noting that if the federal clock starts while the state appeals process is still ongoing, then the federal courts would have to pause consideration to allow state courts to weigh in first, and Justice Barrett queried whether it didn’t make sense to date the “injury” as when the state courts decisively failed him and there were no further available remedies available. Justice Alito was more skeptical, asking how often anything changes on rehearing. No party took up Justice Gorsuch’s suggestion to count from the date that a state appellate court issues the mandate, returning jurisdiction to the trial court.