Opinion analysis: Even habeas appellees may argue any ground fairly presented by the record so long as it does not enlarge the appellee’s rights

Rory Little Criminal Law

Posted Fri, January 16th, 2015 12:27 pm

Since at least 1924, when the Supreme Court endorsed it in United States v. American Railway, a general rule of appellate procedure has been that an appellee – that is, the winner below — “may urge in support” of its judgment any argument “appearing in the record” (even if ignored or rejected by the lower court), so long as it does not “enlarge” the appellee’s rights or lessen the appellant’s. The question presented this Term in Jennings v. Stephens, which I previewed last October , was whether this rule should apply to appeals in the specialized federal habeas context when the prisoner has prevailed in district court.

On Tuesday the Court ruled that the answer is yes, in a relatively short (twelve pages) six-to-three decision. As Justice Antonin Scalia wrote for the Court – yes, Justice Scalia ruled for a federal habeas petitioner in a death penalty case – “the intuitive answer to the question” is yes, and there is no persuasive reason to change that answer in the federal habeas context. If, as Justice Clarence Thomas’s dissent (joined by Justices Anthony Kennedy and Samuel Alito) contended, this is perceived to create any difficulties, “that is a problem that can only be solved by Congress” – it is “beyond the power of the courts.”

Facts and context

The facts of Jennings’s underlying crime are not attractive, and the Court’s opinion bluntly describes his murder of a police officer who was “merely the most recent victim of Jennings’ criminality.” Jennings was convicted for this capital murder in Houston, and the Texas courts duly affirmed his conviction and death sentence.

In his subsequent federal habeas petition, Jennings sought a new sentencing hearing on three grounds alleging a Sixth Amendment claim of ineffective assistance of counsel: that his trial attorney had failed to present evidence of both (1) his disadvantaged background and (2) his low intelligence and organic brain damage – referred to as “Wiggins errors” after the Court’s opinion in Wiggins v. Smith; and that (3) his attorney had ineffectively argued in closing that “I feel like I ought to just sit down,” because if the jury chose a death sentence, “I can’t quarrel with that” – referred to as a “Spisakerror” after the Court’s opinion in Smith v. Spisak. The federal district court ruled in Jennings’s favor on the two Wiggins errors, but ruled against him on the Spisak claim. Based on these findings the district court’s judgment ordered, as is typical in such habeas cases, the State to either grant Jennings “a new sentencing hearing or resentence[] him to a [lawful] term of imprisonment.”

The state, however, appealed the finding of Wiggins errors and the Fifth Circuit agreed, reversing the judgment for Jennings. But Jennings had also argued that the judgment in his favor should be affirmed on the third ground – the Spisak claim – even if reversed on the other grounds. Rather than deny this claim on the merits, the Fifth Circuit ruled that it lacked jurisdiction to reach it because Jennings had not filed a notice of cross-appeal and had failed to obtain a “certificate of appealability” (known as a COA, which is a further hurdle required by statute specifically for federal habeas prisoners who take an appeal). Noting that the Seventh Circuit, as well as some district courts, had reached the opposite conclusion, applying to federal habeas the general rule that an appellee may argue any ground in the record to support his judgment without filing a cross-appeal, Jennings filed a petition for certiorari, which the Court granted last March.

The Court’s opinion

In ruling for Jennings and reversing the Fifth Circuit, the Court first noted that Jennings’s judgment entitled him to a new sentencing hearing, exactly the same relief he would receive whether hisWiggins or his Spisak arguments were accepted. Thus he did not seek to enlarge the rights that the judgment had given him, or lessen the state’s. The state had contended otherwise, arguing that the habeas judgment implicitly required a new sentencing hearing free only of the specified Wigginserrors, so that winning on a different claim of error, the Spisak claim, would actually “enlarge” Jennings’s rights. No, wrote the majority, “this Court, like all federal appellate courts, does not review lower courts’ opinion, but their judgments.” The Court declined to adopt an “unusual” or “peculiar” rule in the habeas context.

(A tangent: the Court suggested that the state’s argument “might have force” if the habeas judgment “explicitly imposes a condition governing the details of” any retrial – “but that case is not before us.” One wonders whether this might stimulate some habeas courts to start writing more detailed habeas orders. However, the Court suggested that this ought not be the result, because “a general grant of supervisory authority over state trial courts” is disfavored. The concept seems misguided to me for another reason as well: any habeas order that requires a new sentencing hearing or trial presumably requires that the new event be free of all constitutional errors, not just the ones expressly identified in the prior ruling. Specifying that the new hearing need be free only of errors argued by a prevailing petitioner in a particular appeal would seem to be misleading and inaccurate.)

Moving to further details that are likely meaningful only to appellate procedure wonks (like me), the Court also rejected with silence any effort to distinguish between “claims” and “arguments,” a distinction that had preoccupied the parties but apparently not the Justices. (Rejecting the distinction was also the suggestion of the amicus brief filed by the Criminal Justice Legal Foundation, which is normally adverse to habeas petitioners.)  The Court also rejected arguments that the preclusive implications of a judgment should limit the judgment to arguments particularly discussed in a court’s opinion; “this confuses a party’s rights under a judgment … with preclusive effects that the judgment might have in [the] future.” The Court also rejected expansive readings of two 1930s opinions as “distort[ing] American Railway.” Although Justice Thomas’s dissent says that the Court’s “narrow” interpretation of the general law of judgments will “do damage well beyond the habeas context,” this is simply asserted at the end of a section and is not followed by further argument.   While it is true that any Supreme Court ruling can have “ripple effects” on the details of doctrine as applied in the lower courts, it seems to me that the Court’s strong endorsement of the relatively clear and simple understanding of American Railway will come as some relief to many appellate lawyers and judges alike.

The Court also rejected as “exaggerated” the suggestion that its ruling will encourage more frivolous habeas defenses (as well as noting that this is a statutory problem for Congress if it is really a problem at all). In a paragraph likely added in response to the dissent, the Court seemed to express its impatience by describing the dissent’s “inability to substantiate its claim” and its “thoroughly implausible” speculations. Also in this section (pages 7-9 of the slip opinion), the Court applied what I would describe a “realistic litigator” analysis (which Justice Scalia often employs to reject claims of “future bad law” effects) to habeas lawyers’ likely moves, and expressed the majority’s “doubt that any more judicial time will be wasted” than would be the case under the dissent’s alternative vision.

Finally, the Court made quick work of the argument that the habeas statute’s specialized COA requirement should apply, because it textually applies “only when ‘an appeal’ is ‘taken’” — “it assuredly does not embrace the defense of a judgment on alternative grounds.” The fact that the Court’s ruling here was written by Justice Scalia and joined by Chief Justice John Roberts, in addition to the four Justices one might expect, suggests just how “mainstream” the Court’s application of the normal defend-on-any-ground ruling is.

The dissent

Justice Thomas’s dissenting opinion is workmanlike rather than vehement. It is ultimately founded on the view that Congress has demonstrated that it wants to eliminate delays and frivolous arguments in the federal habeas review of state criminal judgments, and that the Court’s application of the normal rule regarding alternative appellee arguments, to prisoners who prevail in the district court, frustrates Congress’s intentions and “ignores the unique context of habeas.” Justice Thomas argued that a conditional-release order in a habeas case “embodies” a “specific right” to a new hearing “that [only] cures the specific defect identified by the district court.” He cited “an unbroken line of precedent” of habeas rulings that in his view demonstrates this assertion (although they do not directly say it); thus, Justice Thomas asserted, allowing a new argument on appeal opens the door to “modify[ing] the prisoner’s rights.” As indicated above, the majority expressly disagrees; and, again, it seems true that any new criminal hearing that a habeas petitioner wins must be free of all constitutional error, not just the “specific” errors identified in the prior appeal, so that acceptance on appeal of any argument fairly presented by the record does not “enlarge” or “modify” the relief (which is simply a new and constitutional-error-free hearing) that a successful habeas petitioner wins.

The remand

Interestingly, rather than just remanding to the Fifth Circuit (the circuit that Justice Scalia supervises and whose judicial conference he annually attends) for “further proceedings consistent with this opinion,” as is normally the case, the Court’s opinion ends by specifically directing “remand … for consideration of Jennings’ Spisak claim.” But I doubt this is a signal on the merits of this claim; indeed, it could be read as a subtle suggestion to not further delay this case with procedural hurdles on remand; indeed, the opinion earlier noted that “in an already-pending appeal the court can give the back of its hand to frivolous claims en passant.” Although to this observer (and my disclaimers: I admit I haven’t read the trial transcript, and I also currently represent a federal habeas capital petitioner), a capital defense lawyer who tells the jury in closing that if they voted for death “I can’t quarrel with that,” hardly seems to meet Sixth Amendment performance standards. But in any case, the specific remand direction seems unusual.

Posted in Jennings v. StephensMerits Cases

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