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SCOTUS: Habeas petitioner who prevailed on resentencing claim in district court can defend judgment on alternative grounds without filing a cross-appeal and motion for certificate of appealability

Jennings v. Stephens, USSC No. 13-7211, 2015 WL 159277 (January 14, 2015), reversing Jennings v. Stephens, 537 Fed. Appx. 326 (5th Cir. July 22, 2013); Scotusblog page (includes links to briefs and commentary)

A federal district court granted Jennings’s habeas relief, ordering a new sentencing hearing based on two of the three theories of ineffective assistance of counsel that Jennings raised. The state appealed, and Jennings defended the district court judgment on all three theories. The Fifth Circuit held that Jennings’s claim on the third theory was procedurally barred because it was rejected by the district court and Jennings hadn’t cross-appealed or obtained a certificate of appealability. In a majority opinion authored by Justice Scalia the Supreme Court reverses, holding that Jennings may defend the district court’s judgment based on the third theory.

Jennings was sentenced to death for a homicide. He filed a federal habeas petition alleging that trial counsel was ineffective at the penalty phase of his case based on three allegations of deficient performance. Two of the allegations were like those raised in Wiggins v. Smith, 539 U.S. 510 (2003), while the third was like a claim found in Smith v. Spisak, 558 U.S. 139 (2010). The district court rejected the Spisak claim but agreed with Jennings on the two Wiggins claims, and ordered the state to either hold a new sentencing hearing or commute Jennings’s death sentence to imprisonment. (Slip op. at 2-4).

Adhering to the long-standing rule allowing for a respondent to argue alternative grounds for defending a lower court judgment of appeal, the Supreme Court holds Jennings did not have to cross-appeal from the denial of the Spisak claim in order to assert that ground as a basis for affirming the district court’s grant of resentencing:

An appellee who does not take a cross-appeal may “urge in support of a decree any matter appearing before the record, although his argument may involve an attack upon the reasoning of the lower court.” United States v. American Railway Express Co., 265 U.S. 425, 435 (1924). But an appellee who does not cross-appeal may not “attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary.” Ibid. Since Jennings did not cross-appeal the denial of his Spisak theory, we must determine whether urging that theory sought to enlarge his rights or lessen the State’s under the District Court’s judgment granting habeas relief.

The District Court’s opinion, in its section labeled “Order,” commanded the State to “release Jennings from custody unless, within 120 days, the State of Texas grants Jennings a new sentencing hearing or resentences him to a term of imprisonment as provided by Texas law at the time of Jennings[’] crime.” 2012 WL 1440387, at *7. The District Court’s corresponding entry of judgment contained similar language. App. 35. The intuitive answer to the question whether Jennings’ new theory expands these rights is straightforward: Jennings’ rights under the judgment were what the judgment provided—release, resentencing, or commutation within a fixed time, at the State’s option; the Spisak theory would give him the same. Similarly, the State’s rights under the judgment were to retain Jennings in custody pending resentencing or to commute his sentence; the Spisak theory would allow no less. (Slip op. at 4-5).

A dissent (written by Justice Thomas, joined by Justices Kennedy and Alito) thinks that the conditional judgments for relief entered in habeas proceedings are different from ordinary civil judgments and that the majority’s application of American Railway will lead to a proliferation of frivolous appellate defenses in habeas cases. (Dissent at 2-6, 8-9). The majority finds the dissent’s concerns to be “exaggerated,” noting that not all defenses will qualify:

A habeas applicant who has won resentencing would be required to take a cross-appeal in order to raise a rejected claim that would result in a new trial. Similarly, even if a habeas applicant has won retrial below, a claim that his conduct was constitutionally beyond the power of the State to punish would require cross-appeal. And even a successful applicant doing no more than defending his judgment on appeal is confined to those alternative grounds present in the record : he may not simply argue any alternative basis, regardless of its origin. (Slip op. at 7-8).

Moreover, the majority points out “it is thoroughly implausible” that successful habeas applicants will “dilute their defense of the (by-definition-nonfrivolous) basis for their victory by dragging in frivolous alternative grounds to support.” (Slip op. at 8).

As to whether Jennings should have secured a certificate of appealability, the majority says he did not need to do so for the simple reason that he did not need to file a cross-appeal. (Slip op. at 11). The certificate of appeal requirement in 28 U.S.C. §2253(c) applies only when “an appeal” is “taken to the court of appeals,” and “[w]hether or not this embraces a cross-appeal”—a question the Court doesn’t answer—”it assuredly does not embrace the defense of a judgment on alternative grounds.” (Slip op. at 11).

As noted in our post on the cert grant, there was a circuit split on the need for a petitioner to get a certificate of appealability when the state appealed. The Seventh Circuit came to the conclusion now adopted by the Court in Szabo v. Walls, 313 F.3d 392, 397-98 (7th Cir. 2002), which is cited by the majority opinion (slip op. at 11).

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