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SCOTUS: Habeas court erred in excusing petitioner’s procedural default in death penalty case

Charlotte Jenkins v. Percy Hutton, USSC No. 16-1116, 2017 WL 2621321 (June 19, 2017) (per curiam), reversing Hutton v. Mitchell, 839 F.3d 486 (2016)( 6th Cir. 2016); Scotusblog page (including links to briefs and commentary)

Hutton filed a federal habeas petition challenging his death sentence on the grounds that the jury at the penalty phase of his trial hadn’t been sufficiently instructed to consider only the aggravating factors that had been proven during the guilt phase. But he didn’t object to the instructions at trial and didn’t raise instructional error on direct appeal, so his claim was procedurally defaulted. (Slip op. at 1-3). The Sixth Circuit reached the merits of his claim anyway, excusing the default because the jury hadn’t found the existence of aggravating factors and under Sawyer v. Whitley, 505 U.S. 333 (1992). The Sixth Circuit was wrong to do so, says the Supreme Court.

First, the jury did find the existence of aggravating factors during the guilt phase, so that reason for excusing default doesn’t wash. (Slip op. at 4). Second, Sawyer held that a habeas petitioner may obtain review of a defaulted claim upon “show[ing] by clear and convincing evidence that, but for a constitutional error, no reasonable jury would have found [him] eligible for the death penalty under the applicable state law.” 505 U.S. at 336. Assuming the instructional error Hutton is asserting provides a basis for excusing default, the Sixth Circuit should have asked whether, given proper instructions about aggravating circumstances, a reasonable jury could have decided those aggravating circumstances outweighed the mitigating circumstances. (Slip op. at 4-5).

But the court did not ask that question. Instead, it considered whether, given the (alleged) improper instructions, the jury might have been relying on invalid aggravating circumstances when it recommended a death sentence. …. The court, in other words, considered whether the alleged error might have affected the jury’s verdict, not whether a properly instructed jury could have recommended death. That approach, which would justify excusing default whenever an instructional error could have been relevant to a jury’s decision, is incompatible with Sawyer. (Slip op. at 5).

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