Did the Fifth Circuit err in holding that a federal habeas petitioner who prevailed in the district court on an ineffective assistance of counsel claim must file a separate notice of appeal and motion for a certificate of appealability to raise an allegation of deficient performance that the district court rejected even though the Fifth Circuit acquired jurisdiction over the entire claim as a result of the respondent’s appeal?
Lower court decision: Jennings v. Stephens, 537 Fed. Appx. 326 (5th Cir. July 22, 2013)
Jennings’s certiorari petition raised four issues, but the court took only one, which raises a question about procedure in federal habeas appeals on which the circuits have split. Besides resolving that circuit split, the answer the court gives to the question that will be important to practitioners who win some sort of relief in the district court and face an appeal by the state.
Jennings was sentenced to death for a homicide. He filed a federal habeas petition alleging that trial counsel was ineffective at the sentencing proceeding based on three allegations of deficient performance. The district court granted relief on two of the allegations—the failure to discover and present mitigating evidence of mental impairment and disadvantaged background—but denied relief on the third allegation—counsel’s argument during summation that he could not quarrel with a death sentence. The state appealed the grant of habeas relief to circuit court, but Jennings did not file a separate notice of appeal and motion for a certificate of appealability (COA) seeking review of the district court’s denial of relief on the third allegation of deficient performance. He did, however, raise the third allegation in his appellate brief. Relying on its own precedent, Wiley v. Epps, 625 F.3d 199, 204 n.2 (5th Cir. 2010), the Fifth Circuit Court of Appeals held Jennings’s claim on the third allegation was procedurally barred.
There is a circuit split on whether a habeas petitioner can raise arguments in opposition to the state’s appeal concerning grounds for relief not adopted by the district court unless the petition has first sought a COA. In Grotto v. Herbert, 316 F.3d 198, 209 (2nd Cir. 2003), the Second Circuit reached the same conclusion as the Fifth Circuit did in this case, while our home circuit takes the view that the COA requirement, 28 U.S.C. § 2253(c), does not require a petitioner to seek a COA when an appeal is already before the court based on the state’s appeal of a grant of habeas relief. Szabo v. Walls, 313 F.3d 392, 397-98 (7th Cir. 2002). The Seventh Circuit reads the statute as dealing only with prisoners who are appellants, and does not address prisoners who are appellees making arguments in support of the relief they have obtained. It “serves a gatekeeping function,.. and once a case is properly before the court of appeals … there are no remaining gates to be guarded.” Id. at 298. The Supreme Court will decide the matter next term.