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Randy White, Warden, v. Robert Keith Woodall, USSC No. 12-704, cert granted 6/27/13

Questions presented:

1. Whether the Sixth Circuit violated 28 U.S.C. §2254(d)(1) by granting habeas relief on the trial court’s failure to provide a no adverse inference instruction even though this Court has not “clearly established” that such an instruction is required in a capital penalty phase when a non-testifying defendant has pled guilty to the crimes and aggravating circumstances.

2. Whether the Sixth Circuit violated the harmless error standard in Brecht v. Abrahamson, 507 U.S. 619 (1993), in ruling that the absence of a no adverse inference instruction was not harmless in spite of overwhelming evidence of guilt and in the face of a guilty plea to the crimes and aggravators.

Lower court opinion: Woodall v. Simpson, 685 F.3d 574 (6th Cir. 2012)


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A decision addressing the rules that apply at the penalty phase of a capital case will have no direct impact on either Wisconsin law or the vast majority of federal criminal cases. The decision will, however, provide some elaboration on the standard for determining, under AEDPA, whether a state court unreasonably refused to extend a rule clearly established by the Supreme Court to a new context where it should apply, see Williams v. Taylor, 529 U.S. 362, 407 (2000). Thus, it will be relevant to anyone handling federal habeas cases.

Woodall pled to kidnapping, sexual assault, and homicide of a 16-year-old girl. He didn’t testify at the penalty phase, and the trial judge rejected his request for an instruction that the jury should draw no adverse inference from his silence. The lower federal courts granted granted habeas relief in the form of a new penalty trial based on the principle that when a defendant declines to testify at the penalty phase of a capital case, he is entitled, upon request, to an instruction to the jury that they can make no adverse inference based on the defendant’s silence. No Supreme Court case explicitly establishes that principle, so instead the lower courts distilled it from three cases: Carter v. Kentucky, 450 U.S. 288 (1981) (under Fifth Amendment protection against self-incrimination, defendant who remains silent at guilt phase of trial entitled, upon request, to an instruction that no adverse inference may be drawn from his silence); Estelle v. Smith, 451 U.S. 454 (1981) (Fifth Amendment protection against self-incrimination apply to penalty phase in capital case); and Mitchell v. United States, 526 U.S. 314 (1999) (rule against negative inference from silence applies with equal force at sentencing hearing, even where defendant pled guilty). And they held the state courts unreasonably refused to extend that principle to the situation in this case.

The decision in this case, then, should clarify when–if ever–related cases can be read together to establish a legal principle state courts must apply. Given the Court’s recent rulings emphasizing (no, hammering home) the need for deference to state courts except when they unreasonably apply clearly established Supreme Court rules, it seems likely that no matter how logically an extension of a rule might follow from previous cases, it will not be “clearly established” for AEDPA purposes unless the Supreme Court has explicitly endorsed it.

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