Order Code RL34100
Capital Punishment Overview:
2006-2007 Term of the Supreme Court
July 20, 2007
Paul Starett Wallace, Jr.
Specialist in American Public Law
American Law Division
Capital Punishment Overview: 2006-2007 Term of the
During its 2006-2007 term the Supreme Court announced decisions in eight
capital cases. Three arose under a later abandoned Texas procedure that restricted
jury consideration of mitigation evidence to evidence of intent, future dangerousness
and victim provocation. In one, Smith v. Texas, the Court held that the defendant’s
failure to challenging the state’s insufficient corrective adjustments in the procedure
could not be used to deny him the benefit of a less demanding test to assess the harm
caused by use of the challenged, defective underlying procedure. In another, AbdulKabir v. Quarterman, it rejected the suggestion that the Court’s earlier cases
permitted the use of the mitigating evidence-restricting procedure as long as the
evidence in question related at least in part to one of the narrow factors that the
procedure allowed to be considered. In the third, Brewer v. Quarterman, it rejected
the suggestion that the Court’s earlier cases permitted the use of the mitigating
evidence-restricting procedure as long as the procedure permitted “sufficient”
consideration of the evidence in question given its quality and weight.
Earlier in the term in Ayers v. Belmontes, the Court concluded that the feature
in California’s capital sentencing procedure that permits consideration to any
evidence that extenuated the gravity of the crime allowed a jury from giving full
effect to mitigating evidence of the defendant’s character and background even if
otherwise unrelated to the crime.
In Uttecht v. Brown, the Court held that appellate courts should give
considerable deference to a trial judge’s dismissal of a prospective capital juror for
cause. In Schriro v. Landrigan, it found that the absence of prejudice doomed an
ineffectiveness of counsel challenge based on trial counsel’s failure to search for
mitigating evidence. In Lawrence v. Florida, it construed the federal habeas statute
of limitations and concluded that the statute was not tolled pending a petition for
Supreme Court review of state collateral review decisions (e.g. state habeas corpus
decisions). In Panelli v. Quarterman, it determined that the limitation on second or
successive habeas petitions posed no impediment to consideration of a petition which
challenged the execution of a mentally incompetent death row inmate.
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Smith v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Brewer and Abdul-Kabir v. Quarterman . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Ayers v. Belmontes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Uttecht v. Brown . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Schriro v. Landrigan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Lawrence v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Panetti v. Quarterman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Capital Punishment Overview: 2006-2007
Term of the Supreme Court
During its 2005-2006 term, the Supreme Court announced eight capital
punishment decisions, each decided by a 5-4 vote. Justice Kennedy voted with the
majority in each of the eight. In the four cases in which the defendant succeeded, he
joined Justices Stevens, Souter, Ginsburg and Breyer; in the four in which the state
succeeded, he joined Chief Justice Roberts and Justices Scalia, Thomas and Alito.
Four of the cases involved jury instructions (Smith, Abdul-Kabir, Brewer and Ayers),
and a fifth (Brown) the selection of jurors in capital cases. Of the remaining three,
one (Landrigan) involved an ineffectiveness of counsel challenge and the last two
(Panetti and Lawrence) the application of the federal habeas corpus statute arising
in a capital context.
Three cases (Smith, Abdul-Kabir, and Brewer) reopened constitutional issues
on the role of juries in death penalty sentencing under a since discarded procedure in
Texas and the authority of states to create their own rules for review of death cases
after convictions have become final.
Smith v. Texas
In Smith v. Texas, petitioner LaRoyce Lathair Smith was convicted of capital
murder and sentenced to death by a jury in Dallas County, Texas. The trial took
place in the interim between Penry v. Lynaugh (Penry I)1 and Penry v. Johnson
(Penry II).2 At that time, Texas capital juries were still given special issue questions
that asked whether the murder had been deliberately committed, whether the
defendant might prove dangerous in the future, and in cases involving a confrontation
whether the defendant had been provoked.3 If the jury found that the answer to all
the special issues was yes, then the death penalty was imposed; otherwise, a sentence
of life imprisonment was imposed. The special issue questions were found to be
492 U.S. 302 (1989) (Penry I).
532 U.S. 782 (2001) (Penry II).
More exactly, “(1) Whether the conduct of the defendant that caused the death of the
deceased was committed deliberately and with the reasonable expectation that the death of
the deceased would result; (2) whether there is a probability that the defendant would
commit criminal acts of violence that would constitute a continuing threat; and (3) if raised
by the evidence, whether the conduct of the defendant ibn killing the deceased was
unreasonable in response to the provocation, if any, by the deceased,” Tex. Code Crim. Pro.
art. 37.071(b)(1981 ed. & Supp. 1989).
constitutionally inadequate in Penry I because of “the absence of instructions
informing the jury that it could consider and give effect to the mitigating evidence”
offered on the defendant’s behalf.4
The Texas courts attempted to cure the inadequacy by instructing the jury that
if it felt death should not be imposed but also felt the special issues were satisfied,
it should falsely answer “no” to one of the special-issue questions, thus nullifying the
Prior to his trial, Smith filed three written motions addressing the jury
instructions. In the first two motions, Smith argued that the special issue questions
were constitutionally inadequate. In the third, Smith requested the court to state the
contents of the nullification charge prior to voir dire in order to allow Smith to
exercise his jury challenges intelligently. The trial court denied the first two motions
and, in response to the third, provided Smith a copy of its proposed nullification
charge. Smith raised no additional objections and did not suggest alternative
wording for the nullification charge.
At sentencing, Smith’s jury received the special issues questions and the
supplemental “nullification instruction.”5 The instructions directed the jury to give
effect to mitigation evidence, but allowed the jury to do so only by negating what
would otherwise be affirmative responses to two special issues relating to
deliberateness and future dangerousness. The jury sentenced Smith to death.
In his appeal and post-conviction state proceedings, Smith continued to argue
his sentencing was unconstitutional because of the defects in the special issues. At
each stage, the argument was either rejected on the merits, or held procedurally
barred because it had already been addressed on direct appeal. Along the way, the
Supreme Court in Penry II found the nullification charge inadequate to cure the
special issues defect because of its continued failure to permit sufficient
consideration of mitigating evidence.6 The Texas Court of Criminal Appeals
affirmed the denial of relief, distinguishing Smith’s case from the Penry precedents.7
The Supreme Court reversed, finding that there was Penry error and that the
nullification charge was inadequate under Penry II.8 On remand, the appeals court
denied relief once more. Relying on its Almanza9 decision, the Texas Appeals Court
held that Smith had not preserved a Penry II challenge to the nullification charge,
since he only made a Penry I challenge at trial and this procedural defect required
492 U.S. at 328.
Ex parte Smith, 132 S.W.3d 407, 409 (Tex. Crim. App. 2004).
“Any realistic assessment of the manner in which the supplemental instruction operated
would therefore lead to the same conclusion we reached in Penry I: ‘[A] reasonable juror
could well have believed that there was no vehicle for expressing the view that Penry did
not deserve to be sentenced to death based upon his mitigating evidence,’” 532 U.S. at 804.
132 S.W.3d at 413.
Smith v. Texas, 543 U.S. 37 (2004) (Smith I).
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984 (en banc)).
him to show not merely some harm, but egregious harm, a burden he could not
In a decision by Justice Kennedy, the Court held: (1) that the Texas Court of
Criminal Appeals made errors of federal law that cannot be the underlying basis for
requiring Smith to show egregious harm; and (2) that because there is a reasonable
likelihood the jury believed it was not permitted to consider Smith’s relevant
mitigating evidence, Smith is entitled to relief under the state harmless-error
The majority opinion held that Smith’s primary objection at each stage of his
appeal was centered around the special issues, a Penry I objection.11 As support for
this conclusion, the Court’s majority explained its ruling in Smith I as holding that
the special issues prevented the jury from considering Smith’s mitigating evidence,
while the nullification charge simply failed to cure that error.12 The majority was of
the opinion that the Texas Court of Criminal Appeals misunderstood the interplay of
Penry I and Penry II and the ruling in Smith I, which on remand led it to hold that by
failing to object to the nullification instruction Smith had not preserved his challenge
to the special issues.13 Contrary to the belief of the Texas court, Smith was not
required to object both to the fact that the special issues unconstitutionally confined
jury consideration of mitigation (Penry I) and to the fact that the nullification
instruction was an insufficient cure (Penry II). As a result of this error, the majority
held, the Texas Court of Criminal Appeals mistakenly required Smith to show
Having established that the Texas Court of Criminal Appeals applied the wrong
standard, the majority examined Smith’s claim in light of the correct standard and
held that “...there was a reasonable likelihood that the jury interpreted the special
issues to foreclose adequate consideration of his mitigating evidence.”15
Accordingly, the Court concluded, “it appears Smith is entitled to relief under the
state harmless-error framework.”16 As a result of the Court’s conclusion on this
issue, the majority did not “...reach the question [of] whether the nullification charge
Ex parte Smith, 185 S.W.3d 455, 463-64 (Tex. Crim. App. 2006). Under the Almanza
standard, when a defendant challenges a jury instruction the court must determine whether
there was error in the jury charge, and if so, whether the defendant objected at the time. If
the defendant failed to object “he must show that the error caused him such egregious harm
that he did not have a ‘fair and impartial trial.’” Id. at 463.
127 S. Ct. at 1697.
Id. at 1691.
Id. at 1698.
Id. at 1698.
Id. at 1699.
resulted in a separate jury-confusion error, and if so, whether that error is subject to
The dissenting opinion written by Justice Alito and joined by Chief Justice
Roberts, Justices Scalia, and Thomas concluded that the judgment of the Texas Court
of Criminal Appeals on remand did not conflict with the Court’s mandate in Smith
I.18 More specifically, the dissent took issue with the majority’s conclusion that
Smith had preserved his objection and, as a result, would have held that the Texas
Court of Criminal Appeals correctly applied the egregious harm standard. Although
Smith did argue that the special issues precluded the jury from considering mitigating
evidence, by failing to argue that the trial judge’s proposed instructions were
insufficient to cure that defect, according to the dissent, Smith failed to preserve his
claim.19 The dissent further stated that the majority’s contrary conclusion was
tantamount to holding that Smith “had a federal right to sandbag the trial court.”20
Distinguishing a prior ruling of the Texas Court of Criminal Appeals in Smith
I, the dissenters said the state court never held that Smith’s challenge was properly
preserved; therefore, despite having previously rejected the federal claim on the
merits, the state court was not precluded from imposing the state law procedural bar
on remand of Smith I.21 Also, the dissent concluded that the “‘egregious harm’
standard [was] an adequate and independent state ground sufficient to support a state
judgement that precludes consideration of a federal right.”22
Brewer and Abdul-Kabir v. Quarterman
Abdul-Kabir [Cole] v. Quarterman23 concerns habeas corpus rulings of the
U.S. Court of Appeals for the Fifth Circuit arising out of the Texas “special issues”
Id. at 1706.
Id. at 1704-1705
Id. at 1702.
Id. at 1702-1703.
Id. at 1704-1705.
127 S. Ct. 1654, 1660-1662 (2007). (In 1987, Jalil Abdul-Kabir was convicted of capital
murder after he confessed to strangling 66-year-old Raymond Richardson with a dog leash
to steal $20.00 from him. At sentencing, the trial judge asked the jury to answer two special
issues, affirmative answer to which would require the judge to impose a death sentence:
whether Abdul-Kabir's conduct was committed deliberately and with the reasonable
expectation it would result in his victim’s death and whether it was probable he would
commit future violent acts constituting a continuing threat to society. Abdul-Kabir's
mitigating evidence included family members’ testimony describing his unhappy childhood
as well as expert testimony which, to some extent, contradicted the State’s claim that he was
dangerous. However, the prosecutor discouraged the jurors from taking these matters into
account, advising them instead to answer the special issues based only on the facts and to
disregard any other views as to what might constitute an appropriate punishment for this
procedure. Brewer v. Quarterman24 is its companion. Similar to Smith v. Texas,25
the cases address the question of whether the instructions given to inmate Brewer’s
and inmate Abdul-Kabir’s juries provided a sufficient vehicle for consideration of the
mitigating evidence presented. The statutory scheme under which they were
sentenced was ruled unconstitutional in 1989 in Penry I.26 In 1991, the Texas
legislature amended the statute to correct the deficiency. The pre-1991cases (Smith,
Brewer and Abdul-Kabir), however, continued to proceed through the courts, while
the Supreme Court issued three more decisions involving Texas cases in an effort to
enforce their original ruling. These cases were Penry v. Johnson (Penry II),27 Smith
v. Texas (Smith I)28 and Tennard v. Dretke.29
While Abdul-Kabir’s habeas case was pending initially, the Court in Tennard
rejected a Fifth Circuit standard under which for purposes of certain Penry claims a
prisoner was required to demonstrate a nexus between the mitigating evidence and
the offense of conviction.30 The Court remanded Abdul-Kabir for reconsideration in
light of Tennard.31 On remand, the Fifth Circuit denied habeas relief on the grounds
that the special issue questions permitted the jury to honestly consider the mitigating
effect of the particular evidence in the case. They therefore concluded the state court
decisions regarding the use of the special issue questions were not contrary to
Supreme Court precedent, because the deliberateness and future danger questions
permitted the jury to consider mitigating evidence of a destructive family background
127 S. Ct. 1706, 1710-1711 (2007). (Petitioner Brewer was convicted of murder
committed during the course of a robbery. At sentencing, he introduced mitigating evidence
of his mental illness, his father’s extensive abuse of him and his mother, and his substance
abuse. “In closing argument, the prosecutor emphasized that Brewer’s violent response to
physical abuse by his father supported an affirmative answer to the ‘future dangerousness’
special issue. In contrast, he de-emphasize any mitigating effect such evidence should have
...” saying, “‘you know, folks, you can take a puppy, and you can beat the puppy and you
can make him mean, but if that dog bites, he is going to bite the rest of his life.’” Moreover,
he told the jurors that they “lacked the power to exercise moral judgment in determining
Brewer’s sentence.” Ultimately, the jury answered both special issues in the affirmative,
and Brewer was sentenced to death.).
127 S. Ct. 1686 (2007).
Penry v. Lynaugh, 492 U.S. 302 (1989).
532 U.S. 782 (2001).
543 U.S. 37 (2004).
542 U.S. 274 (2004).
“The court began by stating the test applied in the Fifth Circuit to Penry claims, which
involves a threshold inquiry into whether the petitioner presented ‘constitutionally relevant’
mitigating evidence of a ‘uniquely severe permanent handicap with which the defendant was
burdened through no fault of his own,’ and evidence that ‘the criminal act was attributable
to his severe permanent condition.” Id. at 281. “The Fifth Circuit’s test has no foundation
in the decisions of this Court,” Id. at 284.
Abdul-Kabir v. Dretke, 543 U.S. 985 (2004).
and a neurological condition deficiency.32 It reached much the same conclusion in
Brewer’s case; the jury could consider depression, substance abuse and destructive
family background when called upon to answer the deliberateness and future
dangerousness questions.33 In fact, it suggested that Brewer’s claim was less robust,
quantitatively and qualitatively, than Abdul-Kabir’s.34 The Supreme Court granted
certiorari and consolidated the cases for argument.35 It then reversed in separate
The Court decided in Abdul-Kabir that the Fifth Circuit wrongly applied the
Penry line of cases and its predecessors when it concluded that the Texas court
decisions were not clearly contrary to existing Court precedents. Writing for the
majority, Justice Stevens said their cases beginning with Lockett v. Ohio37 and
continuing through Penry I have been “... clear that when the jury is not permitted to
give meaningful effect or a ‘reasonable moral response’ to a defendant’s mitigating
evidence – because it is forbidden from doing so by statute or a judicial interpretation
of a statute – the sentencing process is fatally flawed.”38
Chief Justice Roberts and Justices Alito, Scalia, and Thomas dissented. Chief
Justice Roberts for the dissenters said the majority should have deferred to lower
court rulings against the defendants because in light of facially limiting,
contemporaneous Court decisions there was no clearly established federal law that
judges could have followed to grant relief.39 Justices Scalia and Thomas added a
separate dissent in which they repeated their view that mitigating evidence may be
kept from the jury without constitutional offense and bemoaned the want of Supreme
Court consistency on the question.40
The separate opinion in Brewer appears to have been designed to preclude any
indication that the special issue procedure may have continued vitality in those cases
Cole v. Dretke, 418 F.3d 494, 505-11 (5th Cir. 2005).
Brewer v. Dretke, 442 F.3d 273, 279-82 (5th Cir. 2006).
“In Coble and Cole, moreover, the record contained expert psychiatric evidence that bore
both on the defendant’s future dangerousness and other potential issues relating to mental
impairment. Even if Brewer [who failed to offer the testimony of expert witnesses] had
proved mental illness (which it appears he did not), and even if mental illness were
tantamount to mental retardation for the purposes of our case law (which it is not), Brewer
came nowhere near to producing evidence sufficient for us to grant relief,” 442 F.3d at 281.
Abdul-Kabir v. Quarterman, 127 S.Ct. 432 (2006); Brewer v. Quarterman, 127 S.Ct.433
Abdul-Kabir v. Quarterman, 127 S.Ct. 1654 (2007); Brewer v. Quarterman, 127
S.Ct.1706 (2007). The dissents in the two opinions, however, are identical, 127 S.Ct. at
1675, 1684; 127 S.Ct. at 1713, 1723.
438 U.S. 586 (1978).
127 U.S. at 1665-1671.
Id. at 1681-1682, citing inter alia, Graham v. Collins, 506 U.S. 461 (1993) and Johnson
v. Texas, 509 U.S. 350 (1993).
127 S.Ct. at 1684-1686.
in which they permit the jury to give “sufficient effect” to the defendant’s evidence
when the defendant’s unassessed mitigating evidence is less robust than that
available in Penry or Abdul-Kabir.41 No more acceptable to the majority than its
“constitutional relevance” theory is the Fifth Circuit’s suggestion that a jury has
given “sufficient effect” to mitigating evidence whose impact largely falls within the
special issues’ sphere of relevance even though some lesser mitigating effects may
be disregarded simple because they fall beyond its edge.42
Ayers v. Belmontes
In Ayers v. Belmontes,43 decided November 13, 2006, a California jury
convicted Belmontes of murder, and sentenced him to death. Belmontes argued that
part of the jury instruction violated the Eight Amendment by keeping the jury from
considering evidence that would have a bearing on how he would behave as a
prisoner if he were sentenced to prison rather than sentenced to death.
A California statute states that the jury can consider several mitigating factors
when considering whether to impose the death penalty. One of these is “factor (k)”
which is “any other circumstance which extenuates the gravity of the crime even
though it is not a legal excuse for the crime.” After being sentenced to death,
Belmontes argued at the California Supreme Court that the jury instructions which
incorporated factor (k) prevented the jury from considering background evidence
unless that evidence related to the murder itself. The California court upheld the
conviction.44 Belmontes then filed a federal habeas corpus petition raising the same
argument, and the Ninth Circuit decided in his favor.45 California challenged the
ruling and after remand from the U.S. Supreme Court, the Ninth Circuit again held
in favor of Belmontes and for the same reasons.46 In another 5-4 decision, the
Supreme Court reinstated the death penalty, concluding that factor (k)’s reference to
“Nowhere in our Penry line of cases have we suggested that the question whether
mitigating evidence could have been adequately considered by the jury is a matter purely
of quantity, degree, or immutability. Rather, we have focused on whether such evidence has
mitigating relevance to the special issues and the extent to which it may diminish a
defendant’s moral culpability for the crime,“ 127 S.Ct. at 1712-1713.
“[T]he Court of Appeals mischaracterized the law as demanding only that such evidence
be given ‘sufficient mitigating effect,’ and improperly equated ‘sufficient effect’ with ‘fully
effect.’ . . . Like the ‘constitution relevance’ standard that we rejected in Tennard, a
‘sufficient effect’ standard has ‘no foundation in the decisions of this Court,’” Id. at 1713.
127 S. Ct. 469 (2006).
People v. Belmontes, 755 P.2d 310 (Cal. 1988), certiorari denied in Belmontes v.
California, 488 U.S. 1034 (1989).
Belmontes v. Woodford, 350 F.3d 861 (9th Cir. 2003), vacated and remand for
reconsideration in light of Brown v. Payton, Brown v. Belmontes, 544 U.S. 945 (2005).
Brown v. Payton, 544 U.S. 133, 142 (2005), held that the California Supreme Court had not
ruled contrary to U.S. Supreme Court precedent when it held factor (k) would not lead a
reasonable jury in a capital case to conclude that it must disregard mitigating evidence of
a defendant’s subsequent rehabilitation.
Belmontes v. Brown, 414 F.3d 1094 (9th Cir. 2005).
any evidence which extenuated the gravity of the crime allowed a jury from giving
full effect to mitigating evidence of the defendant’s character and background even
if otherwise unrelated to the crime.47 “It was mistaken...to find a ‘reasonable
probability’ that the jury did not consider respondent’s future potential,” Justice
Kennedy wrote.48 Chief Justice Roberts and Justices Alito, Scalia, and Thomas
joined Justice Kennedy’s opinion.
In his dissent, Justice Stevens said the majority opinion reaches a “strange
conclusion” based upon speculation.49
Uttecht v. Brown
On June 4, 2007, the Court in Uttecht v. Brown50 decided that the Washington
state trial judge who presided over the trial of Cal Coburn Brown properly used his
discretion to excuse a potential juror who had expressed mixed views regarding the
death penalty.51 After the Washington Supreme Court upheld the trial judge’s
dismissal of the juror,52 the federal district court denied Brown’s habeas petition. The
defendant requested habeas corpus relief in the U.S. Court of Appeals for the Ninth
Circuit and the Court of Appeals reversed finding that under Witherspoon v. Illinois53
the trial court had violated Brown’s Sixth and Fourteenth Amendment rights by
excusing Juror Z for cause on the ground that he could not be impartial in deciding
whether to impose a death sentence.54 The Court of Appeals said that excluding a
127 S.Ct. at 473-74, describing Boyde v. California, 494 U.S. 370 (1990).
Ayers v. Belmontes, 127 S. Ct. 469, 475 (2006).
Id. at 492.
127 S. Ct. 2218 (2007).
Id. at 2228.
State v. Brown, 132 Wash.2d 529, 940 P.2d 546 (1997).
391 U.S. 510 (1968) (In an opinion written by Justice Potter Stewart, the Court held 6-3
that Witherspoon’s death sentence was unconstitutional. The Court reasoned that a jury
composed after the dismissal of all who oppose the death sentence was biased in favor of
the death sentence; such a jury was not impartial and thus violated the Sixth and Fourteenth
Amendments. The Court held that while jurors who say they will not impose the death
sentence can be dismissed; jurors who merely oppose the death sentence as a personal belief
may not. Justice William Douglas, concurring, was of the opinion that it is also
unconstitutional to dismiss prospective jurors who say they will never impose the death
The Circuit Court depicted the consideration of the Juror Z’s dismissal for cause as
follows: “Z expressed no antipathy toward the death penalty; to the contrary, he stated that
he ‘believe[d] in the death penalty.’In explaining his views, Z outlined a balanced and
thoughtful position. For example, Z was discomforted by an earlier era in which ‘[i]t
seemed like ... [the death penalty] wasn’t used at all,’ because he believed ‘there [a]re times
when it would be appropriate [to impose the death penalty].’ But he expressed caution that
the death penalty be reserved for ‘severe situations’: ‘I don’t think it should never happen,
and I don’t think it should happen 10 times a week either.’ Z felt most comfortable imposing
the death penalty where the defendant is ‘incorrigible and would reviolate if released,’ and
juror is allowed only if it is clear that the juror would not follow the law. The Court
of Appeals noted that the juror should not have been excused because he said he
would consider the death penalty in an appropriate case.55
However, the Supreme Court reinstated the death sentence of Brown based on
the premise that the Court of Appeals should have given deference to the trial judge
because determinations of a juror’s demeanor and credibility are within his
province.56 Writing for the majority, Justice Kennedy said “...where, as here, there
is lengthy questioning of a prospective juror and the trial court has supervised a
diligent and thoughtful voir dire [examination], the trial court has broad discretion.”57
Dissenting, Justice Stevens, said the Court wiped away earlier decisions that
allow death penalty opponents to sit on juries in capital cases, provided they
demonstrate that they can set aside their “beliefs in deference to the rule of law.”58
Justice Stevens noted that juror Z was struck for cause although she was not
necessarily an opponent of the death penalty since on voir dire (examination), she
said she could impose the death penalty if convinced that it was the appropriate
measure.59 Justices Breyer, Souter, and Ginsburg also dissented.
Schriro v. Landrigan
In Schriro v. Landrigan,60 decided by the Court on May 14, 2007, the
respondent, Jeffrey Landrigan was convicted and sentenced to death for murder
committed during a burglary.61 At sentencing, he undermined his attorney’s effort
to develop and present any mitigating evidence. His attorney sought to offer the
testimony of his mother and ex-wife as mitigating evidence; Landrigan persuaded
them not to testify.62 He informed the court that he had instructed his attorney not to
present mitigating evidence and that as far as he was concerned there were no
less comfortable where the defendant is found to have been ‘temporarily insane.’ But he
stated unequivocally that he could consider the death penalty as an option if told to do so.
... More importantly, he promised he would ‘follow the law’ without reservation. Despite
these assurances, the prosecutor protested that Z was too reluctant to impose the death
penalty, and that he would only vote for death if convinced that the defendant would ‘kill
again.’ The prosecutor thus moved to excuse juror Z for cause, and the trial judge granted
the motion without further inquiry,” Brown v. Lambert, 451 F.3d 946, 949 (2006).
451 F.3d at 950-953.
127 S.Ct. at 2228.
Id. at 2230.
Id. at 2240.
Id. at 2239.
127 S. Ct. 1933 (2007).
Landrigan had previously stabbed and attempted to murder a fellow inmate while serving
time for an earlier murder. Id. at 1937.
Id. at 1937.
mitigating circumstances.63 His attorney sought to assert that Landrigan had been
lawfully employed to support his family; he interjected that he was “doing robberies
supporting my family” as well.64 His attorney suggested the stabbing of a fellow
inmate may have been self-defense; he would have none of it and ended the effort
with the observation that “I stabbed him 14 times. It was lucky he lived. But two
weeks later they found him hung in his cell.”65
The court sentenced Landrigan to death and his direct appeals proved
unsuccessful.66 Landrigan then filed an ineffective assistance claim first in state court
and then in federal court.67 Landrigan argued that if his lawyer had explained better,
he would have agreed to allow him at his sentencing hearing to present evidence that
he suffered because of fetal alcohol syndrome and a history of violence in his
biological family.68 The Arizona Supreme Court, the U.S. District Court for the
District of Arizona, and a three-judge panel of the Court of Appeals for the Ninth
Circuit all rejected Landrigan’s argument. However, the Ninth Circuit Court of
Appeals en banc affirmed in part, reversed in part, and remanded, saying Landrigan
was entitled to a hearing on his claim that his lawyer was ineffective.69
In the eyes of the en banc panel, Landrigan’s trial attorney conducted almost no
investigation for sentencing and certainly no probing investigation.70 At the
sentencing hearing, Landrigan simply told the court that he did not wish for his
mother or ex-wife to testify on his behalf. And trial counsel was unprepared to
present any other witnesses. Landrigan knew of no other mitigating evidence
because his attorney had developed none. When the state courts found that his
instruction not to use his mother and ex-wife to present mitigating evidence
constituted an instruction not to present any mitigating evidence from any other
source, they had engaged in an unreasonable determination of the facts, as far as the
panel was concerned.71 During habeas corpus proceedings in the district court,
mitigating evidence was developed showing organic brain damage, fetal alcohol, and
Landrigan v. Stewart, 272 F.3d 1221, 1227 (9th Cir. 2001).
State v. Landrigan, 176 Ariz. 1, 859 P.2d 111 (1993).
Id. at 1223-1224.
Landrigan v. Schriro, 441 F.3d 638, 642 (9th Cir. 2006).
Id. at 643-646.
Id. at 646-647. In state prisoner cases, the federal statute binds federal habeas courts to
state court decisions with two exceptions, one of which is that the state court decision “was
based on an unreasonable determination of the facts in light of the evidence presented in the
state court proceeding.” 28 U.S.C. 2254(d)(2). Under 28 U.S.C. 2254(e)(1) state court
findings of fact are presumed correct absent a contrary showing by clear and convincing
certain genetic predispositions.72 None of this evidence was developed by trial
counsel. Moreover, Landrigan had shown no want of diligence to develop the factual
basis for his claim.73 The post-conviction counsel asked for funding for experts and
an evidentiary hearing. The state objected to both and the state court denied funding
and a hearing.74 The Supreme Court granted the state’s petition for certiorari75 and
The ultimate weakness of Landrigan’s argument and the en banc decision, in
the opinion of the Court, was weakness of the unheard mitigating evidence. Justice
Thomas, writing for the Court with the concurrence of four of his brethren, pointed
out that habeas relief may only be granted if the state court’s treatment of the claim
constitutes either unreasonable application of federal law or an unreasonable
application of the facts to that law.77 A court need conduct an evidentiary hearing in
aid of an effort to overcome these obstacles, explained the Court, when “the
petition’s factual allegations ... if true, would entitle the applicant to federal habeas
relief.”78 Here, the claim of ineffective assistance of counsel would require a
showing of a “deficient performance by counsel resulting in prejudice.”79 As far as
the Court was concerned, the district court that denied habeas relief “did not abuse
its discretion in finding that Landrigan could not establish prejudice based on his
counsel’s failure to present the evidence he now wishes to offer.”80
Id. at 648-649.
Id. Again in state prisoner cases, the statute declares that a petitioner who has previously
failed to develop the factual basis for his claim may have an evidentiary hearing to do so
only under two circumstances, one of which is that “the factual predicate that could not have
been previously discovered through the exercise of due diligence.” 28 U.S.C. 2254(e)(2)(A)
(ii). Even with this accomplished, he must also demonstrate “by clear and convincing
evidence that but for the constitutional error,” such as the ineffective assistance of counsel,
“no reasonable fact-finder would have found the applicant guilty of the underlying offense”
or subject to the challenged penalty. 28 U.S.C. 2254(e)(2)(B).
Landrigan v. Schriro, 127 S.Ct. 35 (2006).
127 S.Ct. at 1944.
127 S.Ct. at 1939, citing, 28 U.S.C. 2554(d)(1),(2).
Id. at 1940.
Rompilla v. Beard, 545 U.S. 374, 380 (2005)(emphasis added), citing, Strickland v.
Washington, 466 U.S. 668, 687 (1984). The Court seems to take for granted without saying
as much that habeas relief under Strickland requires a showing of prejudicial ineffective
assistance, see, 127 S.Ct. at 1941 (“the District Court could conclude that because of his
established recalcitrance, Landrigan could not demonstrate prejudice under Strickland even
if granted an evidentiary hearing. The Court of Appeals offered two addition reasons for
holding that Landrigan’s inability to make a showing of prejudice under Strickland did not
bar any potential habeas relief ... it was not objectively unreasonable for that court to
conclude that a defendant who refused to allow the presentation of any mitigating evidence
could not establish Strickland prejudice... .”).
Id. at 1943-1944. (The Court continued, “Landrigan’s mitigation evidence was weak, and
the postconviction court was well acquainted with Landrigan’s exceedingly violent past and
The Court’s treatment of the contrary en banc panel decision is straightforward
in some respects and instructive in others. It concluded that based on the record the
panel was simply wrong when it characterized as an unreasonable determination of
the facts the state court holdings that Landrigan had instructed his trial attorney not
to offer any mitigating evidence.81 “The Arizona court’s determination that
Landrigan refused to allow the presentation of any mitigating evidence was a
reasonable determination of the facts,” said Justice Thomas.82
The Court’s terse rebuttal of two other points found in the en banc decision may
prove more revealing of the Court’s future direction. First, the panel suggested that
Landrigan’s conduct “cannot excuse his counsel’s failure to conduct an adequate
investigation prior to the sentencing.” Earlier cases seemed to teach: (1) in Wiggins,
that the adequacy of a presentencing investigation is measured at the time the
investigation was and should have been conducted not at the time of sentencing
hearing;83 and (2) in Rompilla, that counsel must sometimes probe the defendant’s
background for mitigating evidence even when the defendant and members of his
family assure counsel there is none.84 The Court dismissed the references with the
observation that it had never previously addressed “a situation in which a client
interferes with counsel’s efforts to present mitigating evidence to a sentencing
had seen first hand his belligerent behavior. Again, it is difficult to improve upon the initial
Court of Appeals panel’s conclusion: ‘The prospect was chilling: before he was 30 years of
age, Landrigan had murdered one man, repeatedly stabbed another one, escaped from prison,
and within two months murdered still another man. ... In his comments to the sentencing
judge, defendant not only failed to show remorse or offer mitigating evidence, but he
flaunted his menacing behavior. On this record, assuring the court that genetics made him
the way he is could not have been very helpful. There was no prejudice.’ 272 F.3d at
127 S.Ct. at 1940-1941.
Id. at 1941. In addition, the district court, whose denial habeas relief the panel overturned,
“was entitled to conclude that regardless of what information counsel might have uncovered
in his investigation, Landrigan would have interrupted and refused to allow his counsel to
present any such evidence.” Id. at 1942.
Wiggins v. Smith, 539 U.S. 510, 522-23 (2003)(emphasis in the original)(“In finding
Williams’ ineffectiveness claim meritorious, we applied Strickland and concluded that
counsel’s failure to uncover and present voluminous mitigating evidence at sentencing could
not be justified as a tactical decision ... because counsel had not fulfilled their obligation to
conduct a thorough investigation of the defendant’s background. ...[O]ur principal concern
... is not whether counsel should have presented a mitigation case. Rather, we focus on
whether the investigation supporting counsel’s decision not to introduce mitigating evidence
of Wiggins’ background was itself reasonable.”).
Rompilla v. Beard, 545 U.S. 374, 383 (2005)(“The Commonwealth argues that the
information trial counsel gathered from Rompilla and the other sources gave them sound
reason to think it would have been pointless to spend time and money on the additional
investigation espoused by postconviction counsel, and we can say that there is room for
debate about trial counsel’s obligation to follow at least some of those potential lines of
court.”85 No more need have been said since a habeas court may not distribute a state
court’s ruling on the merits of a claim in absence of contrary Supreme Court
precedent.86 Yet this does little to encourage the belief that the Court may soon
address the question and resolve it to the possible benefit of state death row inmates.
The want of Supreme Court precedent was but one of several reasons why the
Court was unmoved by the panel’s objection that any decision of Landrigan’s to
forego the introduction of mitigating evidence could hardly be described as
“informed and knowing.”87 The Court has “never imposed an ‘informed and
knowing’ requirement upon a defendant’s decision not to introduce evidence.”88
Even if such a claim had merit, Landrigan could not assert it because he had failed
to present to state courts first.89 In addition, the Court noted that trial counsel had in
fact alluded to the perils of Landrigan’s decision to bar the introduction of mitigating
evidence.90 Finally, Landrigan dispelled any illusion that he was unaware of the
consequences of unheard mitigating evidence when in his final statement he told the
sentencing judge, “I think if you want to give the death penalty, just bring it right on.
I’m ready for it.”91
Again, the Court did little to encourage the belief that it would soon rule and
rule in a manner favorable to defendants on the question of whether a capital
defendant may only waive the introduction of mitigating evidence at sentencing if his
decision is an informed and knowing one.
Justice Stevens, writing the dissent, said the Court should have allowed the
hearing to determine whether Landrigan truly did not want a judge to consider
evidence in his favor as well as the strength of mitigating factors.92 “Without the
benefit of an evidentiary hearing, this is pure guesswork,” Justice Stevens said.93
Furthermore, Justice Stevens continued, in light of a panoply of circumstances
under which the Court has held that trial rights may only be intelligently waived, “it
makes little difference that we have not specifically imposed an informed and
127 S.Ct. at 1942.
28 U.S.C. 2254(d).
441 F.3d at 647 (“Nor does the record indicate that Landrigan’s decision was informed
and knowing. It is difficult for an attorney to advise a client of the prospects of success or
the potential consequences of failing to present mitigating evidence when the attorney does
not know that such evidence exists”).
127 S.Ct. at 1942.
Id. at 1942-1943, citing, 28 U.S.C. 2254(e)(2).
Id. at 1943 (“[I]n Landrigan’s presence, his counsel told the sentencing court that he had
carefully explained to Landrigan the importance of mitigating evidence, especially
concerning the fact that state is seeking the death penalty.”).
Id. at 1955.
Id. at 1944.
knowing requirement upon a defendant’s decision not to introduce evidence. A
capital defendant’s right to present mitigating evidence is firmly established and can
only be exercised at a sentencing trial.”94
Finally, the dissenters could not accept the majority’s conclusion that
Landrigan’s mitigating evidence was weak or that it could be said without hearing
that Landrigan had not been prejudiced by his trial counsel’s failure to investigate the
presence, depth and breath of any mitigating evidence.95
Lawrence v. Florida
On February 20, 2007, the Supreme Court announced its decision in Lawrence
v. Florida96 seeking to address the confusion surrounding the tolling of a one-year
statute of limitations applicable to federal habeas corpus petitions. The statute
provides for tolling through “the conclusion of direct appeal” including certiorari
review by the Supreme Court.97 It provides for tolling thereafter during the
“pendency of state post-conviction or other collateral review” (i.e., habeas in state
court).98 But does this include the period during pendency of a petition for Supreme
Court certiorari review of this second round of state proceedings. Prior to Lawrence,
a split had developed in the circuits on the question. On one hand, the Eleventh
Circuit and others held that the statute of limitations was not tolled during the
pendency of a certiorari petition to the Supreme Court seeking review of a state
court’s collateral relief decision.99 On the other hand, the Sixth Circuit decided
differently prior to Lawrence, concluding that an application for state post-conviction
relief would remain pending and would therefore toll the statute of limitations during
the review by the Supreme Court.100
In settling the issue, the Court, in a 5-4 decision with Justice Thomas writing for
the majority (which Chief Justice Roberts and Justices Scalia, Kennedy and Alito
joined) rejected the Sixth Circuit reasoning and affirmed that of the Eleventh Circuit.
The majority opinion decided that under ordinary circumstances, the time to file
under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) is not
tolled while the Court is considering whether to grant certiorari regarding a state
post-conviction petition; tolling of the statute of limitations is available only during
direct appeals including certiorari to the Supreme Court and then during the pendency
of the state post-conviction proceedings in state court, but not during the pendency
Id. at 1947.
Id. at 1953-1954.
127 S. Ct. 1079 (2007).
28 U.S.C. 2244(d)(1).
28 U.S.C. 2244(d)(2).
See, e.g., Lawrence v. Florida, 421 F.3d 1221 (11th Cir. 2005); Miller v. Dragovich, 311
F.3d 574 (3d Cir. 2002).
Abela v. Martin, 348 F.3d 164, 170 (6th Cir. 2003).
of a petition for Supreme Court review of those proceedings.101 For the majority, the
issue turned on the language used in the statute. Supreme Court review cannot be
part of the “state” review to which Congress referred when it spoke of “state postconviction or other collateral review” in paragraph 2244(d)(2).102 That phrase,
Justice Thomas continued, stands in stark contrast to the phrase used in paragraph
2244(d)(1) that contemplates Supreme Court participation as the final stage of the
state appellate process – “the conclusion of direct review.”103
Justice Ginsburg with whom Justices Stevens, Souter, and Breyer joined in
dissenting would hold that 28 U.S.C. § 2244(d)’s statue of limitations is tolled during
the pendency of a petition for certiorari to review of state collateral relief opinions.104
The dissent concluded that the language does not require, nor should practicality
encourage, a statutory construction that would compel a state prisoner to file his
habeas petition in federal district court while his petition requesting review of the
very same issues is pending before the Supreme Court.105
Panetti v. Quarterman
On the last day of its term, the Supreme Court announced its decision in Panetti
v. Quarterman.106 The questions presented were: “(1) Does the Eighth Amendment
permit the execution of a death row inmate who has a factual awareness of the reason
for his execution but who, because of severe mental illness, has a delusional belief
as to why the state of Texas is executing him, and thus does not comprehend that his
execution is intended to seek punishment for his capital crime? (2) Does the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) require deference
to the state court’s determination that Panetti is competent to be executed–and
thereby statutorily preclude Panetti’s request for federal habeas relief? and (3) Must
petitioner’s habeas application be dismissed as ‘second or successive’ pursuant to 28
U.S.C. 2244?” 107
In 1995, Panetti was convicted of capital murder and sentenced to death by a
Texas jury for the 1992 slaying of his in-laws in the presence of his wife and
127 S. Ct. at 1082.
Id. at 1083 (“This Court is not a part of a ‘state’s post-conviction procedures.’”).
Id. (“The Courts of Appeals have uniformly interpreted ‘direct review’ in §2244(d)(1)(A)
to encompass review of a state conviction by this Court. By contrast, §2244(d)(2) refers
exclusively to ‘state post-conviction or other collateral review,’ language not easily
interpreted to include participation by a federal court.”).
Id at 1086.
Id. at 1089.
127 S.Ct. 2842 (2007).
Panetti v. Quarterman, No. 06-6407, Brief for Respondent On Writ of Certiorari To The
United States Court Of Appeals For The Fifth Circuit, page i; Supplemental Brief for
Respondent, page i.
three-year-old daughter.108 Following his direct appeal, state post-conviction
proceedings, and initial efforts at federal habeas relief were all unsuccessful, an
execution date was set.109 In December 2003, Panetti claimed for the first time that
he was mentally incompetent to be executed. Other procedural maneuvers followed
his claim, however, in May 2004, the state trial court (relying on evaluations by
court-appointed experts) decided that Panetti was competent.110 The state court then
closed the case without ruling on various pending motions filed by Panetti, including
requests for a competency hearing and for funds to hire his own expert.111
Panetti went back to federal court, where a second habeas petition was pending.
The district court held that although the state court had not complied with either state
law or the requirements imposed by the Supreme Court’s decision in Ford v.
Wainright,112 Panetti was competent as defined by Fifth Circuit precedent insofar as
he was aware of his impending execution and the basis for the execution.113 The
Fifth Circuit affirmed,114 and the Supreme Court granted certiorari.115
On June28, 2007, the Court in a 5-4 ruling reversed the Fifth Circuit. First, the
Court rejected the state’s argument that the Court lacked jurisdiction to consider the
case because Panetti’s first federal habeas petition would, explained the Court,
prompt all death row inmates to include such claims in their first petition even
though the claims may not be ripe or meritless.116 While announcing what appears
to be a new rule,117 the Court concluded that “Congress did not intend the provisions
of AEDPA addressing ‘second or successive’ petitions to govern a filing in the
unusual posture presented here: a § 2254 application raising a Ford-based
incompetency claim filed as soon as that claim is ripe.”118 Notwithstanding, the
lower courts here emphasized instead, “[a]n empty formality requiring prisoners to
file unripe Ford claims [which] neither respects the limited resources available to the
127 S.Ct. at 2848.
Id. at 2849.
Id. at 2850-2851.
Id. at 2851.
477 U.S. 399, 409-410 (1986)(“The Eighth Amendment prohibits a State from carrying
out a sentence of death upon a prisoner who is insane”).
Panetti v. Dretke, 401 F.Supp.2d 702, 705-706 (W.D. Tex. 2004).
Panetti v. Dretke, 448 F.3d 815 (5th Cir. 2006).
Panetti v. Quarterman, 127 S.Ct. 852 (2007).
127 S. Ct. at 2852.
The Court will ordinarily decline to announce a “new rule,” that is a first-time
constitutional interpretation, in a habeas case, Teague v. Lane, 489 U.S. 288 (1989).
Id. at 2853. 28 U.S.C. 2244(b)(2) states that, “A claim presented in a second or
successive habeas corpus application under section 2254 that was not presented in a prior
application shall be dismissed... .”
States nor encourages the exhaustion of state remedies.”119 Recognizing that the
State’s argument had some merit, nonetheless, Justice Kennedy concluded that it was
flawed because of “[t]he results it would produce”120 when considered with an earlier
The Court addressed the next issue that, in the state’s opinion, would preclude
it from reaching the merits of Panetti’s claim regarding the state court’s
determination that Panetti was competent and was entitled to deference under the
AEDPA.122 The Court agreed with Panetti that no deference was due because the
state court had failed to provide Panetti with the minimum procedures required by
Justice Powell’s concurring opinion in Ford–which, the Court explained constituted
“clearly established law” for AEDPA purposes.123 The Court took notice that in
Panetti’s case, for example, the state court failed to provide Panetti with even the
“rudimentary process” of giving him an opportunity to submit psychiatric evidence
to rebut the report filed by the court-appointed experts.124 The Court left undecided
questions regarding other due process protections –“such as the opportunity for
discovery or the cross-examination of witnesses which may also be required.125 The
Court rejected any idea that the state court’s application of Ford was necessarily
reasonable because the standard outlined in Ford was “stated in general terms”:
“AEDPA does not require state and federal courts to wait for some nearly identical
factual pattern before a legal rule must be applied. Nor does AEDPA prohibit a
federal court from finding an application of a principle unreasonable when it involves
a set of facts ‘different from those in which the principle was announced.’”126
Id. at 2854.
Stewart v. Martinez-Villareal, 523 U.S. 637 (1998)(In Stewart, the Court held that if an
inmate brings a Ford claim in his first petition that is dismissed because it is not ripe, the
inmate can bring the claim later when it becomes ripe; based on Stewart case, refiling the
dismissed claim is basically just a continuation of the earlier claim dismissed on ripeness
127 S. Ct. at 2855. When considering a state inmate’s habeas claim of a violation of
federal law, Federal habeas courts must defer to state court decisions adjudicating the claim
unless those decisions are “contrary to, or involve an unreasonable application of, clearly
established” Supreme Court precedent, 28 U.S.C. 2254(d)(1).
Ford was a 5-4 decision in which Justice Powell provided the fifth vote. Of the five, his
was the most limited, and consequently controlling, statement on the question of how a State
must proceed in the face of a claim that a death row inmate cannot be executed because of
incompetence, which would include providing a hearing at which the prisoner has the
opportunity “to submit ‘evidence and argument from the prisoner’s counsel, including expert
psychiatric evidence that may differ from the state’s own psychiatric examination.’”127
S.Ct. at 2585-2586, quoting Justice Powell’s concurrence in Ford, 477 U.S. at 427.
Id. at 2858.
Lastly, the Court addressed the merits of Panetti’s Eighth Amendment claim.
The Court considered the Fifth Circuit’s test “too restrictive” insofar as it “treats a
prisoner’s delusional belief system as irrelevant if the prisoner knows that the state
has identified his crimes as the reason for his execution.”127 In the Court’s opinion,
“[a] prison’s awareness of the State’s rational for an execution is not the same as a
rational understanding of it. Ford does not foreclose the latter.”128
In the dissent joined by Chief Justice Roberts and Justices Scalia and Alito,
Justice Thomas said “[t]his case should be simple” because Panetti’s claim does not
meet AEDPA’s “‘second or successive’ habeas application” requirements.129
According to Justice Thomas, “...the Court ben[t] over backwards to allow Panetti
to bring his Ford claim despite no evidence that his condition has worsened – or even
changed – since 1995.”130 Referring to the Court’s earlier decision in Burton v.
Stewart,131 Justice Thomas said “[i]n light of Burton, it simply cannot be maintained
that Panetti is excused from § 2244’s requirements solely because his Ford claim
would have been unripe had he included it in his first habeas application.”132 The
dissent, according to Justice Thomas, minimizes the majority’s opinion as
representing only “the proposition that Ford claims somehow deserve a special (and
unjustified) exemption from the statute’s plain import.”133
Id. at 2861. Although Panetti claimed “to understand ‘that the state is saying that it
wishes to execute him for his murders,’ he believes in earnest that the stated reason is a
‘sham’ and the State in truth wants to execute him ‘to stop him from preaching.’” Id. at
Id. at 2862.
Id. at 2864.
127 S.Ct. 793, 797 (2007).
127 S. Ct. at 2866.
Id. at 2866-2867.