Jennings v. Stephens ( 2015 )

(Slip Opinion) OCTOBER TERM, 2014 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
JENNINGS v. STEPHENS, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 13–7211. Argued October 15, 2014—Decided January 14, 2015
Petitioner Jennings sought federal habeas relief based on three theories
of ineffective assistance of counsel during the punishment phase of
his state capital murder trial. The District Court granted relief on
his two “Wiggins theories”—that counsel failed to present evidence of
a deprived background and failed to investigate evidence of mental
impairment, see Wiggins v. Smith, 539 U.S. 510—but not on his
“Spisak theory”—that counsel expressed resignation to a death sen-
tence during his closing argument, see Smith v. Spisak, 558 U.S.
139. The court ordered Texas to release Jennings unless, within 120
days, the State granted him a new sentencing hearing or commuted
his death sentence. The State attacked the Wiggins theories on ap-
peal, but Jennings defended on all three theories. The Fifth Circuit
reversed the grant of habeas corpus under the two Wiggins theories
and determined that it lacked jurisdiction over the Spisak claim.
Implicitly concluding that raising this argument required a cross-
appeal, the court noted that Jennings neither filed a timely notice of
appeal, see Fed. Rule App. Proc. 4(a)(1)(A), nor obtained the certifi-
cate of appealability required by 28 U.S. C. §2253(c).
Held: Jennings’ Spisak theory was a defense of his judgment on alter-
native grounds, and thus he was not required to take a cross-appeal
or obtain a certificate of appealability to argue it on appeal. Pp. 4–
12.
(a) Because Jennings is an appellee who did not cross-appeal, he
may “urge” his Spisak theory unless doing so would enlarge his rights
or lessen the State’s rights under the District Court’s judgment.
2 JENNINGS v. STEPHENS
Syllabus
United States v. American Railway Express Co., 265 U.S. 425, 435.
Jennings’ rights under the judgment were release, retrial, or commu-
tation within a fixed time, at the State’s option, and his Spisak claim,
if accepted, would give him no more. The State’s rights under the
judgment were to retain Jennings in custody pending retrial or to
commute his sentence; the Spisak claim, if accepted, would not fur-
ther encumber the State. The State contends that, because the Dis-
trict Court’s opinion entitled Jennings only to retrial (or resentenc-
ing) without the challenged errors, each additional basis asserted by
Jennings sought to lessen the State’s rights at retrial, and thus re-
quires a cross-appeal. But this view is contrary to the ordinary be-
havior of courts, which reduce their opinions and verdicts to judg-
ments precisely to define the parties’ rights and liabilities. A
prevailing party seeks to enforce a district court’s judgment, not its
reasoning. Rogers v. Hill, 289 U.S. 582, 587. Thus, any potential
claim that would have entitled Jennings to a new sentencing proceed-
ing could have been advanced consistent with American Railway.
Pp. 4–9.
(b) Helvering v. Pfeiffer, 302 U.S. 247, and Alexander v. Cosden
Pipe Line Co., 290 U.S. 484, would be in considerable tension with
American Railway if they were read, as the State insists, as requiring
Jennings to raise his Spisak claim on cross-appeal even if his rights
under the court’s judgment would remain undisturbed. Pfeiffer and
Alexander involved disputes over multiple discrete federal tax liabili-
ties, and the assertion of additional tax liabilities or defenses neces-
sarily sought to enlarge or to reduce the rights of the Internal Reve-
nue Service Commissioner. In contrast, Jennings, whether
prevailing on a single theory or all three, sought the same, indivisible
relief: a new sentencing hearing. Thus, Pfeiffer and Alexander cannot
be viewed as contradicting the ‘ “inveterate and certain’ ” American
Railway rule. Greenlaw v. United States, 554 U.S. 237, 245. Pp. 9–
11.
(c) The question whether 28 U.S. C. §2253(c)’s certificate of ap-
pealability requirement applies to cross-appeals need not be ad-
dressed here, for it is clear that the provision does not embrace the
defense of a judgment on alternative grounds. Pp. 11–12.
537 Fed. Appx. 326, reversed and remanded.
SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS,
J., filed a dissenting opinion, in which KENNEDY and ALITO, JJ., joined.
Cite as: 574 U. S. ____ (2015) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–7211
_________________
ROBERT MITCHELL JENNINGS, PETITIONER v.
WILLIAM STEPHENS, DIRECTOR, TEXAS DE-
PARTMENT OF CRIMINAL JUSTICE, COR-
RECTIONAL INSTITUTIONS DIVISION
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[January 14, 2015]
JUSTICE SCALIA delivered the opinion of the Court.
Petitioner Robert Mitchell Jennings was sentenced to
death for capital murder. He applied for federal habeas
corpus relief on three theories of ineffective assistance of
counsel, prevailing on two. The State appealed, and Jen-
nings defended his writ on all three theories. We consider
whether Jennings was permitted to pursue the theory that
the District Court had rejected without taking a cross-
appeal or obtaining a certificate of appealability.
I
In July 1988, petitioner Robert Mitchell Jennings en-
tered an adult bookstore to commit a robbery. Officer
Elston Howard, by unhappy coincidence, was at the same
establishment to arrest the store’s clerk. Undeterred,
Jennings shot Howard four times, robbed the store, and
escaped. Howard died from his wounds.
Howard was merely the most recent victim of Jennings’
criminality. The State adjudicated Jennings a delinquent
at 14, convicted him of aggravated robbery at 17, and of
2 JENNINGS v. STEPHENS
Opinion of the Court
additional aggravated robberies at 20. He murdered
Officer Howard only two months after his most recent
release from prison.
Jennings was arrested, tried, and convicted of capital
murder, and the State sought the death penalty. During
the punishment phase, the State introduced evidence of
Jennings’ lengthy and violent criminal history. Jennings’
attorney called only the prison chaplain, who testified
about Jennings’ improvement and that Jennings was not
“incorrigible.” Jennings’ attorney acknowledged the diffi-
culty of his sentencing defense in his closing remarks,
commenting that he could not “quarrel with” a death
sentence, but was nonetheless pleading for mercy for his
client. The jury returned a special verdict, consistent with
Texas law, that Jennings acted deliberately in the murder
and that he would present a continuing threat to society.
The trial court sentenced Jennings to death. Texas courts
affirmed Jennings’ conviction and sentence and denied
postconviction relief. Jennings v. State, No. AP–70911
(Tex. Crim. App., Jan. 20, 1993); Ex parte Jennings, 2008
WL 5049911 (Tex. Crim. App., Nov. 26, 2008).
Jennings applied for federal habeas corpus relief, assert-
ing, as relevant here, three theories of ineffective assis-
tance of counsel in the punishment phase of his trial.
Jennings first claimed trial counsel was ineffective for
failing to present evidence of his disadvantaged back-
ground, including that his conception was the product of
his mother’s rape, that his mother was only 17 when he
was born, and that he grew up in poverty. Jennings of-
fered his mother and sister as witnesses.
Jennings next argued that trial counsel was ineffective
for failure to investigate and to present evidence of Jen-
nings’ low intelligence and organic brain damage. His
trial attorney admitted in affidavit that he failed to review
the case files from Jennings’ prior convictions, which
contained a report suggesting Jennings suffered from mild
Cite as: 574 U. S. ____ (2015) 3
Opinion of the Court
mental retardation and mild organic brain dysfunction.
(The report also suggested that Jennings malingered,
feigning mental illness in order to delay proceedings.)
Jennings argued that trial counsel should have examined
Jennings’ prior case files, investigated Jennings’ mental
health problems, and presented evidence of mental im-
pairment in the punishment phase.
Finally, Jennings argued that counsel was constitution-
ally ineffective for stating that he could not “quarrel with”
a death sentence. According to Jennings, this remark
expressed resignation to—even the propriety of—a death
sentence.
Jennings cited our decision in Wiggins v. Smith, 539
U.S. 510 (2003), as establishing constitutional ineffec-
tiveness when counsel fails to investigate or to introduce
substantial mitigating evidence in a sentencing proceed-
ing. Though he did not cite our decision in Smith v.
Spisak, 558 U.S. 139 (2010), he also argued that counsel’s
closing remarks amounted to constitutional ineffective-
ness. The parties referred to these alleged errors as the
“Wiggins errors” and the “Spisak error ”; we use the same
terminology.
The federal habeas court granted Jennings relief on
both of his Wiggins theories, but denied relief on his
Spisak theory. Jennings v. Thaler, 2012 WL 1440387 (SD
Tex., Apr. 23, 2012). The court ordered that the State
“shall 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.”
Id., at *7.
The State appealed, attacking both Wiggins theories
(viz., trial counsel’s failure to present evidence of a de-
prived background and failure to investigate evidence of
mental impairment). Jennings argued before the Fifth
Circuit that the District Court correctly found constitu-
4 JENNINGS v. STEPHENS
Opinion of the Court
tional ineffectiveness on both Wiggins theories, and ar-
gued again that trial counsel performed ineffectively
under his Spisak theory. The Fifth Circuit reversed the
grant of habeas corpus under the two Wiggins theories
and rendered judgment for the State. 537 Fed. Appx. 326,
334–335 (2013). The court determined that it lacked
jurisdiction over Jennings’ Spisak theory. Id., at 338–339.
Implicitly concluding that raising this argument required
taking a cross-appeal, the panel noted that Jennings failed
to file a timely notice of appeal, see Fed. Rule App. Proc.
4(a)(1)(A), and failed to obtain a certificate of appealability
as required by 28 U.S. C. §2253(c). Section 2253(c) pro-
vides, as relevant here, that “[u]nless a circuit justice or
judge issues a certificate of appealability, an appeal may
not be taken to the court of appeals from . . . the final
order in a habeas corpus proceeding.”
We granted certiorari, 572 U. S. ___, (2014), to decide
whether Jennings was required to file a notice of cross-
appeal and seek a certificate of appealability to pursue his
Spisak theory.
II
The rules governing the argumentation permissible for
appellees urging the affirmance of judgment are familiar,
though this case shows that familiarity and clarity do not
go hand-in-hand.
A
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. Ameri-
can 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.”
Cite as: 574 U. S. ____ (2015) 5
Opinion of the Court
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 “Or-
der,” 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 con-
tained 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.
The State objects to this straightforward result. A
conditional writ of habeas corpus, it argues, does not
merely entitle a successful petitioner to retrial (or resen-
tencing), but it entitles him to retrial (or resentencing)
without the challenged errors. Because each basis for
habeas relief imposes an additional implied obligation on
the State (not to repeat that error), each basis asserted by
a successful petitioner seeks to lessen the State’s rights at
retrial, and therefore each additional basis requires a
cross-appeal.
This is an unusual position, and one contrary to the
manner in which courts ordinarily behave. Courts reduce
their opinions and verdicts to judgments precisely to
define the rights and liabilities of the parties. Parties
6 JENNINGS v. STEPHENS
Opinion of the Court
seeking to enforce a foreign court’s decree do not attempt
to domesticate an opinion; they domesticate a judgment.
Restatement (Third) of Foreign Relations Law of the
United States §§ 481–482 (1987). A prevailing party seeks
to enforce not a district court’s reasoning, but the court’s
judgment. Rogers v. Hill, 289 U.S. 582, 587 (1933). This
Court, like all federal appellate courts, does not review
lower courts’ opinions, but their judgments. Chevron,
U. S. A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 842 (1984). And so a rule that contravenes
this structure, that makes the opinion part of the judg-
ment, is peculiar—especially when it is applied to impose
extrajudgment obligations on a sovereign State.
The State’s argument might have force in a case where a
district court explicitly imposes (or the appellee asks the
appellate court explicitly to impose) a condition governing
the details of the retrial. But that case is not before us.
The implications of the State’s position make clear why
such orders are atypical, and why we should not infer such
conditions from silence. Construing every federal grant of
habeas corpus as carrying an attendant list of unstated
acts (or omissions) that the state court must perform (or
not perform) would substantially transform conditional
habeas corpus relief from an opportunity “to replace an
invalid judgment with a valid one,” Wilkinson v. Dotson,
544 U.S. 74, 87 (SCALIA, J., concurring), to a general grant
of supervisory authority over state trial courts.
In a variation on the same theme, the dissent posits
that, apart from implied terms, a habeas petitioner who
successfully defends a judgment on an alternative ground
has expanded his rights under the judgment, because he
has changed the judgment’s issue-preclusive effects. This
theory confuses a party’s rights under a judgment—here,
the right to release, resentencing, or commutation, at the
State’s option—with preclusive effects that the judgment
might have in future proceedings. That makes nonsense
Cite as: 574 U. S. ____ (2015) 7
Opinion of the Court
of American Railway. Whenever an appellee successfully
defends a judgment on an alternative ground, he changes
what would otherwise be the judgment’s issue-preclusive
effects. Thereafter, issue preclusion no longer attaches to
the ground on which the trial court decided the case, and
instead attaches to the alternative ground on which the
appellate court affirmed the judgment. Restatement
(Second) of Judgments § 27 (1982). Thus, making altera-
tion of issue-preclusive effects the touchstone of necessity
for cross-appeal would require cross-appeal for every de-
fense of a judgment on alternative grounds. That is, of
course, the polar opposite of the rule we established in
American Railway.
Under the habeas court’s judgment, Jennings was enti-
tled, at the State’s option, to either release, resentencing,
or commutation of his sentence. Any potential claim that
would have entitled Jennings to a new sentencing proceed-
ing could have been advanced to “urge . . . support” of the
judgment within the meaning of American Railway. 265
U.S., at 435. The dissent and the State contend that
applying American Railway in this fashion will lead to a
proliferation of frivolous appellate defenses in habeas
cases. If so, that is a problem that can only be solved by
Congress. Until it does so, we think it appropriate to
adhere to the usual law of appeals.
We think, however, that the danger is exaggerated. To
begin with, not all defenses will qualify. A habeas appli-
cant 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 consti-
tutionally 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 rec-
ord: he may not simply argue any alternative basis, re-
8 JENNINGS v. STEPHENS
Opinion of the Court
gardless of its origin. Ibid.
Moreover, successful habeas applicants have an incen-
tive to defend their habeas grants effectively, an objective
that is not furthered by diverting an appellate court’s
attention from a meritorious defense to a frivolous one.
The dissent gives two examples of habeas petitioners who
raised numerous ostensibly frivolous claims. Post, at 9.
They prove nothing except the dissent’s inability to sub-
stantiate its claim that our holding will foster the presen-
tation of frivolous alternative grounds for affirmance. For
both examples involved habeas petitioners who lost before
the magistrate and were casting about for any basis that
might justify a writ. We are talking here about habeas
petitioners who have won before the district court. The
notion that they can often be expected to dilute their
defense of the (by-definition-nonfrivolous) basis for their
victory by dragging in frivolous alternative grounds to
support it is thoroughly implausible. Indeed, as the State
and Jennings agree, it is rare that a habeas petitioner
successful in the district court will even be called upon to
defend his writ on appeal.
And finally, we doubt that any more judicial time will be
wasted in rejection of frivolous claims made in defense of
judgment on an appeal already taken than would be wasted
in rejection of similar claims made in (what the State and
dissent would require) a separate proceeding for a certifi-
cate of appealability. To be sure, as the dissent points out,
post, at 9, the certificate ruling will be made by just one
judge rather than three; but that judge will always be
required to consider and rule on the alternative grounds,
whereas the three-judge court entertaining the govern-
ment’s habeas appeal will not reach the alternative
grounds unless it rejects the ground relied on by the lower
court. Not to mention the fact that in an already-pending
appeal the court can give the back of its hand to frivolous
claims en passant, whereas the certificate process requires
Cite as: 574 U. S. ____ (2015) 9
Opinion of the Court
the opening and disposition of a separate proceeding.
In the end, the dissent tries to evade American Railway
by asserting that habeas corpus is “unique.” Post, at 7.
There are undoubtedly some differences between writs of
habeas corpus and other judgments—most notably, that
habeas proceedings traditionally ignored the claim-
preclusive effect of earlier adjudications. But the reality
that some things about habeas are different does not mean
that everything about habeas is different. The dissent
must justify why the particular distinction it urges here—
abandonment of the usual American Railway rule—is an
appropriate one. It cannot.
B
The State also advances what could be termed a corol-
lary to the American Railway rule. Citing Helvering v.
Pfeiffer, 302 U.S. 247 (1937), and Alexander v. Cosden
Pipe Line Co., 290 U.S. 484 (1934), the State insists that a
cross-appeal is necessary not only for Jennings to enlarge
his rights under the District Court’s judgment, but also to
attack the District Court’s ruling rejecting his Spisak
theory, even if Jennings’ rights under the court’s judgment
would remain undisturbed.
The view of Pfeiffer and Alexander advanced by the
State would put these cases in considerable tension with
our oft-reaffirmed holding in American Railway. And it is
not the correct view. Both Pfeiffer and Alexander arose
from disputes between the Commissioner of the Internal
Revenue Service and taxpayers regarding multiple dis-
crete federal tax liabilities. Pfeiffer, supra, at 248; Alex-
ander, supra, at 486. In Pfeiffer, the Commissioner pre-
vailed before the Board of Tax Appeals on his contention
that a dividend was taxable, but lost a similar claim
against a cash payment. Only the taxpayer sought the
Second Circuit’s review, and the taxpayer prevailed on the
dividend liability. 302 U.S., at 249. In Alexander, the
10 JENNINGS v. STEPHENS
Opinion of the Court
taxpayer sought refund of four tax liabilities; the taxpayer
won on all four. Only the Commissioner appealed to the
Tenth Circuit, and that court affirmed two of the refunds,
eliminated a third, and reduced a fourth. Pfeiffer, supra,
at 248–249; Alexander, supra, at 486. The Commissioner
sought our review in both cases; we refused to entertain
the Commissioner’s arguments regarding the cash pay-
ment in Pfeiffer, or the taxpayer’s regarding the elimi-
nated and reduced claims in Alexander, citing American
Railway.
The State argues that these holdings expanded the need
for cross-appeal, beyond merely those arguments that
would enlarge rights under the judgment, to those argu-
ments that revisit a lower court’s disposition of an issue on
which a judgment rests. For, the State argues, the re-
jected arguments would not necessarily have expanded
the Commissioner’s or the taxpayer’s rights; if some of the
points on which the respective appellee won below were
rejected on appeal, his new arguments might do no more
than preserve the amount assessed.
But this view of Pfeiffer and Alexander distorts Ameri-
can Railway. American Railway does not merely require a
cross-appeal where a party, if fully successful on his new
arguments, would certainly obtain greater relief than
provided below; it requires cross-appeal if the party’s
arguments are presented “with a view either to enlarging
his own rights thereunder or of lessening the rights of his
adversary.” 265 U.S., at 435. In Pfeiffer and Alexander
the assertion of additional tax liabilities or defenses,
respectively, necessarily sought to enlarge or to reduce the
Commissioner’s rights, even if, under some combination of
issues affirmed and reversed, one possibility would have
produced no more than the same tax obligations pro-
nounced by the judgment below.
Once we have rejected the State’s—and dissent’s—
theories of implied terms in conditional writs, Jennings’
Cite as: 574 U. S. ____ (2015) 11
Opinion of the Court
Spisak theory sought the same relief awarded under his
Wiggins theories: a new sentencing hearing. Whether
prevailing on a single theory or all three, Jennings sought
the same, indivisible relief. This occurred in neither
Pfeiffer nor Alexander, and we decline to view those cases
as contradicting our ‘ “inveterate and certain’ ” rule in
American Railway. Greenlaw v. United States, 554 U.S.
237, 245 (2008).
C
Finally, the State urges that even if Jennings was not
required to take a cross-appeal by American Railway,
Pfeiffer, and Alexander, he was required to obtain a certifi-
cate of appealability. We disagree.
Section 2253(c) of Title 28 provides that “an appeal may
not be taken to the court of appeals” without a certificate
of appealability, which itself requires “a substantial show-
ing of the denial of a constitutional right.” It is unclear
whether this requirement applies to a habeas petitioner
seeking to cross-appeal in a case that is already before a
court of appeals. Section 2253(c) performs an important
gate-keeping function, but once a State has properly no-
ticed an appeal of the grant of habeas relief, the court of
appeals must hear the case, and “there are no remaining
gates to be guarded.” Szabo v. Walls, 313 F.3d 392, 398
(CA7 2002) (Easterbrook, J.).
But we need not decide that question now, since it is
clear that §2253(c) applies only when “an appeal” is “taken
to the court of appeals.” Whether or not this embraces a
cross-appeal, it assuredly does not embrace the defense of
a judgment on alternative grounds. Congress enacted
§2253(c) against the well-known, if not entirely sharp,
distinction between defending a judgment on appeal and
taking a cross-appeal. Nothing in the statute justifies
ignoring that distinction.
The dissent laments that this result frustrates AEDPA’s
12 JENNINGS v. STEPHENS
Opinion of the Court
purpose of preventing “frivolous appeals.” Post, at 8. It
can indulge that lament only by insisting that the defense
of an appealed judgment on alternative grounds is itself
an appeal. The two are not the same. The statutory text
at issue here addresses the “tak[ing]” of an appeal, not
“the making of arguments in defense of a judgment from
which appeal has been taken.” Extending the certificate of
appealability requirement from the former to the latter is
beyond the power of the courts.
* * *
Because Jennings’ Spisak theory would neither have
enlarged his rights nor diminished the State’s rights
under the District Court’s judgment, he was required
neither to take a cross-appeal nor to obtain a certificate of
appealability. We reverse the judgment of the Fifth Cir-
cuit and remand the case for consideration of Jennings’
Spisak claim.
It is so ordered.
Cite as: 574 U. S. ___ (2015) 1
Thomas, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–7211
_________________
ROBERT MITCHELL JENNINGS, PETITIONER v.
WILLIAM STEPHENS, DIRECTOR, TEXAS DE-
PARTMENT OF CRIMINAL JUSTICE, COR-
RECTIONAL INSTITUTIONS DIVISION
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[January 14, 2015]
JUSTICE THOMAS, with whom JUSTICE KENNEDY and
JUSTICE ALITO join, dissenting.
The Court holds today that a prisoner who obtains an
order for his release unless the State grants him a new
sentencing proceeding may, as an appellee, raise any
alternative argument rejected below that could have re-
sulted in a similar order. In doing so, the majority mis-
takenly equates a judgment granting a conditional-release
order with an ordinary civil judgment. I respectfully
dissent.
I
Title 28 U.S. C. §2253(c)(1)(A), as amended by the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), provides in relevant part: “Unless a circuit
justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals from . . .
the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a
State court.” Further, “[a] certificate of appealability may
issue . . . only if the applicant has made a substantial
showing of the denial of a constitutional right,” and the
certificate must “indicate which specific issue or issues
2 JENNINGS v. STEPHENS
THOMAS, J., dissenting
satisfy [that] showing.” §§2253(c)(2),(3). Because Jen-
nings did not obtain a certificate of appealability (COA),
we must consider whether, by raising his “cross-point,” he
took an appeal within the meaning of AEDPA.
I agree with the majority that if a habeas petitioner
takes what is, in substance or in form, a cross-appeal to
the Court of Appeals, then he must obtain a COA. The
failure to obtain a COA is a jurisdictional bar to review.
See Gonzalez v. Thaler, 565 U. S. ___, ___ (2012) (slip op.,
at 8). The critical question the Court faces is whether
Jennings’ “cross-point” was in fact a cross-appeal.
II
A
The majority correctly identifies the rule we apply to
determine whether a party has taken a cross-appeal,
United States v. American Railway Express Co., 265 U.S.
425, 435 (1924), but then fails to apply it in accordance
with the history of the writ of habeas corpus, our prece-
dents concerning conditional-release orders, and tradi-
tional principles governing equitable relief. Each of these
guides supports the conclusion that a prisoner who obtains
a conditional-release order allowing the State to resen-
tence him in a new proceeding is entitled, if the State
elects that option, to a new sentencing proceeding free of
the specific constitutional violation identified by the dis-
trict court. Because a conditional-release order embodies
this specific right, an appellee’s attempt to add additional
errors is an attempt to modify or expand his rights under
the judgment.
For most of its existence, the writ of habeas corpus was
understood far more narrowly than it is today. See Wright
v. West, 505 U.S. 277, 285–287 (1992) (opinion of THOMAS,
J.). Originally, it played only a procedural role: It issued
as of right when a prisoner showed probable cause to
believe he was being held illegally—that is, without a
Cite as: 574 U. S. ___ (2015) 3
THOMAS, J., dissenting
conviction entered by a court of competent jurisdiction
over the prisoner—and obligated the warden to file a
“return” identifying the grounds of imprisonment. W.
Church, A Treatise on the Writ of Habeas Corpus §§94,
122 (rev. 2d ed. 1893) (hereinafter Church). The “grant of
the writ decided nothing except that there was a case
calling for an answer by the gaoler.” Goddard, A Note on
Habeas Corpus, 65 L. Q. Rev. 30, 34 (1949). And the
court’s ultimate decision on the matter was limited to
confirming the legality of the prisoner’s confinement or
ordering his immediate discharge. See Church §§130, 131.
The writ today, by contrast, is invoked to justify broad
federal review of state criminal proceedings for constitu-
tional violations. And, when a district court issues the
writ, it usually enters a conditional-release order, offering
the State a choice between immediate release or a retrial
(or resentencing) within a defined period of time. See
Wilkinson v. Dotson, 544 U.S. 74, 86–87 (2005) (SCALIA,
J., concurring).
The purpose of a conditional-release order is to afford
the State an opportunity to remedy the specific constitu-
tional violation identified by the district court. Since its
inception over a century ago, we have treated a conditional-
release order as entitling a habeas petitioner not just to
a new proceeding, but to a new proceeding that cures the
specific defect identified by the district court. One of our
earliest precedents contemplating such an order is In re
Bonner, 151 U.S. 242, 259–260 (1894). That case involved
a prisoner who had been lawfully convicted, but unlawfully
ordered to serve his federal sentence in a state peniten-
tiary. Id., at 254–255, 260. Invoking its “power to control
and direct the form of judgment to be entered in cases
brought up before it on habeas corpus,” the Court ordered
the delay of discharge to allow the prisoner to be “taken
before the court where the judgment was rendered, that
the defects for want of jurisdiction which are the subject of
4 JENNINGS v. STEPHENS
THOMAS, J., dissenting
complaint in that judgment may be corrected.” Id., at 261
(emphasis added); see also Magwood v. Patterson, 561
U.S. 320, 347 (2010) (KENNEDY, J., joined by, inter alios,
ALITO, J., dissenting) (“[A] conditional grant of relief . . .
allows the state court to correct an error that occurred at
the original sentencing”). That understanding of habeas
judgments has prevailed in an unbroken line of precedent.
See Richmond v. Lewis, 506 U.S. 40, 52 (1992); Hilton v.
Braunskill, 481 U.S. 770, 775 (1987); Dowd v. United
States ex rel. Cook, 340 U.S. 206, 209–210 (1951); Mahler
v. Eby, 264 U.S. 32, 46 (1924). Cf. Dotson, supra, at 86
(SCALIA, J., concurring) (“[T]he conditional writ serves
only to ‘delay the release . . . in order to provide the State
an opportunity to correct the constitutional violation’ ”
(quoting Braunskill, supra, at 775)).
When the State fails to cure the specific constitutional
violation identified by the district court, the habeas peti-
tioner is entitled to release. That is because the prevailing
habeas petitioner has shown that his conviction or sen-
tencing proceeding was unconstitutional and that he is
therefore “actually entitled to release.” Dotson, 544 U.S.,
at 86 (SCALIA, J., concurring). “Conditional writs enable
habeas courts to give States time to replace an invalid
judgment with a valid one, and the consequence when
they fail to do so is always release.” Id., at 87. But that
entitlement to release is tied to the constitutional violation
identified by the Court. A State committing a new consti-
tutional violation during the new sentencing proceeding
will not be required to release the habeas petitioner under
the old order. Cf. Magwood, supra, at 339 (explaining that
a habeas petitioner who obtains a new sentencing proceed-
ing on the basis of one error may subsequently raise, in a
first habeas application, other errors repeated in that
proceeding).
A habeas petitioner’s rights under the conditional-
release order are thus defined by the violation that justi-
Cite as: 574 U. S. ___ (2015) 5
THOMAS, J., dissenting
fied its entry, not by the wording of the order. Pitchess v.
Davis, 421 U.S. 482 (1975) (per curiam), makes that clear.
Davis involved a prisoner who had obtained habeas relief
because the prosecutor had failed to disclose a material
and exculpatory laboratory report, in violation of Brady v.
Maryland, 373 U.S. 83 (1963). 421 U.S., at 483. When
the State moved to retry him, the prisoner discovered that
the State had destroyed some of the physical evidence
used against him at his initial trial. Id., at 484. The
District Court granted the prisoner’s motion to convert its
initial conditional-release order into an unconditional
order. Id., at 485. After the Court of Appeals affirmed
that decision, this Court granted certiorari and reversed.
Id., at 486, 490. Although the conditional-release order
provided only that the prisoner should be released unless
the State moved to retry him within 60 days, Davis v.
Pitchess, 388 F. Supp. 105, 114 (CD Cal. 1974), the Court
read that conditional-release order to require the State to
“provid[e] respondent with the laboratory report,” in addi-
tion to moving to retry him within 60 days, Davis, 421
U.S., at 483 (emphasis added). Because the order did not
address the separate issue of the physical evidence, the
Court refused to allow the District Court to use its de-
struction as a basis for converting the conditional-release
order to an unconditional order.
That decision makes sense when considered in light of
traditional principles of equitable relief. “This Court has
frequently rested its habeas decisions on equitable princi-
ples.” Withrow v. Williams, 507 U.S. 680, 717 (1993)
(SCALIA, J., concurring in part and dissenting in part).
(Such principles remain relevant after AEDPA’s enact-
ment when they are consistent with the statutory scheme
Congress adopted. See, e.g., McQuiggin v. Perkins, 569
U. S. ___, ___ – ___ (2013) (SCALIA, J., dissenting) (slip op.,
at 2–3).) And the Court has frequently recognized that an
equitable “remedy must . . . be limited to the inadequacy
6 JENNINGS v. STEPHENS
THOMAS, J., dissenting
that produced” the asserted injury. Lewis v. Casey, 518
U.S. 343, 357 (1996). Thus, a conditional-release order
will not “permit a federal habeas court to maintain a
continuing supervision over a retrial conducted pursuant
to a conditional writ granted by the habeas court.” Davis,
421 U.S., at 490. But neither will a conditional-release
order permit a State to hold a prisoner under a new judg-
ment infected by the same constitutional violation that
justified the order’s entry in the first place. See Dotson,
supra, at 87 (SCALIA, J., concurring); Harvest v. Castro,
531 F.3d 737, 750 (CA9 2008); Phifer v. Warden, 53 F.3d
859, 864–865 (CA7 1995). Such an interpretation of ha-
beas judgments would render the writ hollow.
The history of the writ of habeas corpus, the treatment
of conditional-release orders, and traditional principles of
equitable relief resolve the dispute at issue here. A habeas
petitioner awarded a conditional-release order based on
an error at his sentencing proceeding is entitled, under
that order, to a new proceeding without the specific consti-
tutional violation identified by the district court. Raising
any other constitutional violation on appeal would be an
attempt to modify the prisoner’s rights flowing from that
order.
B
Given these principles, the judgment of the Court of
Appeals should be affirmed. Jennings prevailed in the
District Court on two theories of ineffective assistance of
counsel and lost on another. The District Court entered a
conditional-release order instructing the State to release
Jennings unless it granted Jennings a new sentencing
hearing within 120 days or commuted his sentence. Ante,
at 5. Under this Court’s precedents, that general order
embodies a specific instruction to the State with respect to
a new sentencing proceeding: resentence Jennings without
the two identified Wiggins errors. See ante, at 3 (citing
Cite as: 574 U. S. ___ (2015) 7
THOMAS, J., dissenting
Wiggins v. Smith, 539 U.S. 510 (2003)). The State’s fail-
ure to comply with that order would justify Jennings’
release. Jennings attempted, through his cross-point, to
expand his rights under the judgment when he attempted
to alter the instruction to the State—adding an additional
instruction about a Spisak error—and, accordingly, the
grounds upon which he could obtain immediate release.
See ante, at 3 (citing Smith v. Spisak, 558 U.S. 139
(2010)). Jennings’ cross-point was in substance a cross-
appeal for which he needed to obtain a COA.
III
A
The majority makes no attempt to reconcile its decision
with the history of conditional-release orders, our prece-
dents, or traditional limitations on equitable relief. Nor
could it. Instead, it divines an “intuitive answer” to the
question presented, ante, at 5, from the law of judgments.
But not only is this the incorrect source of law, the major-
ity’s position is fundamentally at odds with the law of
judgments on which it purports to rely.
The majority agrees that, to understand how the cross-
appeal rule applies in a given case, one must understand
the rights that parties obtained under the judgment at
issue. But the majority refuses to look past the language
of the conditional-release order. It is, of course, true that
parties domesticate judgments, not opinions. Ante, at 5–6.
And it is similarly true that prevailing parties enforce
judgments, not reasoning. Ante, at 6. Those truisms,
however, do not answer the question here, which is what
rights flow from those judgments.
In answering that question, the majority simply an-
nounces that the rights that flow from a habeas petition-
er’s judgment are the same rights that flow from any other
civil judgment. But that assertion ignores the unique
context of habeas, in which the traditional principles of
8 JENNINGS v. STEPHENS
THOMAS, J., dissenting
the law of judgments have never applied. As explained
above, the writ of habeas corpus was historically a purely
procedural mechanism to obtain a court’s determination as
to the legality of a prisoner’s confinement. Church §§94,
122, 130, 131. And that determination was never treated
as an ordinary civil judgment entitled to res judicata
effect. Id., §386; see also McCleskey v. Zant, 499 U.S. 467,
479 (1991).
Even if the majority were correct that the law of judg-
ments could simply be imported to the habeas context, it
misapplies that law. Under long recognized principles,
including the doctrine of preclusion, parties have greater
rights under civil judgments than merely the particular
relief afforded. A prevailing plaintiff ’s claims are wholly
merged into his judgment, preventing a defendant, in a
future action on that judgment, from availing himself of
defenses that he could have raised in the court’s first
adjudication of the claims. Restatement (Second) of
Judgments §18 (1980). And a defendant, whether victori-
ous or not, can rely upon that judgment as the final adju-
dication of a particular claim, preventing the plaintiff from
pursuing another action against him in the future on that
same claim. Id., §19. These principles give rights to the
parties beyond the remedy ordered. By narrowly and
artificially defining the rights flowing from a civil judg-
ment as solely those rights identified in a written order,
the majority disregards these basic principles. And be-
cause the majority purports to apply the general law of
judgments, its decision will do damage well beyond the
habeas context in which this case arises.
B
In the habeas context specifically, the majority’s opinion
invites the same frivolous appeals that Congress passed
AEDPA to prevent. Although courts had long relied on the
certificate of probable cause as a mechanism to prevent
Cite as: 574 U. S. ___ (2015) 9
THOMAS, J., dissenting
frivolous appeals in habeas cases, AEDPA further nar-
rowed access to such appeals with the creation of the COA
requirement. Miller-El v. Cockrell, 537 U.S. 322, 356
(2003) (THOMAS, J., dissenting). A habeas petitioner
cannot obtain a COA absent a substantial showing of the
denial of a constitutional, not merely federal, right. See
Slack v. McDaniel, 529 U.S. 473, 483–484 (2000). This
requirement serves an important gatekeeping function.
But the majority’s decision will seriously undermine the
courts’ ability to perform this function by allowing prison-
ers to pursue any alternative allegation, no matter how
frivolous, that would have justified the same new proceed-
ing awarded in the conditional-release order below.
This danger is by no means “exaggerated,” ante, at 7, as
the majority suggests. Habeas petitioners frequently
pursue 20 or more arguments on collateral review, even
though they could more effectively concentrate on a hand-
ful of arguments. See, e.g., Calvert v. Henderson, 2012 WL
1033632, *1 (ED La., Mar. 27, 2012) (raising 26 allega-
tions of ineffective assistance of counsel); Battle v. Roper,
2009 WL 799604, *13 (ED Mo., Mar. 24, 2009) (raising 1
double jeopardy issue and 20 allegations of ineffective
assistance of counsel). I see little reason to suspect that
the prisoners who file these scattershot applications will
suddenly alter their strategy on appeal. Indeed, the expe-
rience of the Courts of Appeals suggests otherwise. See,
e.g., Jones v. Keane, 329 F.3d 290, 296 (CA2 2003) (noting,
but refusing to consider absent a COA, a prevailing ha-
beas petitioner’s “alternative grounds” for affirmance—
allegations of insufficiency of the evidence and ineffective
assistance of both trial and appellate counsel). And the
experience of the Courts of Appeals with this conduct is
only likely to grow now that the majority has approved it.
Where before only the United States Court of Appeals for
the Seventh Circuit had permitted prevailing habeas
petitioners to raise rejected claims as alternative grounds
10 JENNINGS v. STEPHENS
THOMAS, J., dissenting
for affirmance, now all Courts of Appeals will be subject to
that rule.
The majority also overlooks a significant procedural
distinction between an application for a COA and a merits
appeal. The majority expresses “doubt that any more
judicial time will be wasted in rejection of frivolous claims
made in defense of judgment on an appeal already taken
than would be wasted in rejection of similar claims made
in . . . a separate proceeding for a certificate of appealabil-
ity.” Ante, at 8. But a COA can be decided by a single
court of appeals judge, 28 U.S. C. §2253(c)(1), while a
merits appeal must be heard by a three-judge panel. By
mandating the involvement of two additional judges in the
adjudication of these claims, today’s ruling triples the
burden on the Courts of Appeals.
* * *
This Court has repeatedly recognized that AEDPA’s
purpose is to “reduc[e] delays in the execution of state and
federal criminal sentences.” Ryan v. Valencia Gonzales,
568 U. S. ___, ___ (2013) (slip op., at 17) (internal quota-
tion marks omitted). One of the key ways in which
AEDPA encourages finality is to narrow the scope of ap-
pellate review by requiring habeas petitioners to obtain
COAs. The majority’s decision undermines that legislative
choice and, in so doing, transforms the understanding
of conditional-release orders that has prevailed since
the Court first announced their creation. I respectfully
dissent.