Jenkins v. Hutton , 137 S. Ct. 1769 ( 2017 )

Cite as: 582 U. S. ____ (2017) 1
Per Curiam
SUPREME COURT OF THE UNITED STATES
CHARLOTTE JENKINS, WARDEN v. PERCY HUTTON
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 16–1116. Decided June 19, 2017
PER CURIAM.
Respondent Percy Hutton accused two friends, Derek
Mitchell and Samuel Simmons Jr., of stealing a sewing
machine, in which he had hidden $750. Mitchell and
Simmons denied the accusation, but Hutton remained
suspicious. On the night of September 16, 1985, he lured
the pair into his car and, after pointing a gun at each,
drove them around town in search of the machine. By
night’s end, Hutton had recovered his sewing machine,
Simmons was in the hospital with two gunshot wounds to
the head, and Mitchell was nowhere to be found. Sim-
mons survived, but Mitchell was found dead a few weeks
later, also having been shot twice.
More than 30 years ago, an Ohio jury convicted Hutton
of aggravated murder, attempted murder, and kidnaping.
In connection with the aggravated murder conviction, the
jury made two additional findings: that Hutton engaged in
“a course of conduct involving the . . . attempt to kill two
or more persons,” and that Hutton murdered Mitchell
while “committing, attempting to commit, or fleeing im-
mediately after . . . kidnapping,” Ohio Rev. Code Ann.
§§2929.04(A)(5), (7) (Lexis 1982). Because of these “ag-
gravating circumstances,” Ohio law required that Hutton
be sentenced to “death, life imprisonment without parole,
[or] life imprisonment with parole eligibility after” no
fewer than 20 years in prison. §2929.03(C)(2).
Several days after rendering its verdict, the jury recon-
vened for the penalty phase of the trial. The State argued
for the death penalty. In opposition, Hutton gave an
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unsworn statement professing his innocence and presented
evidence about his background and psychological pro-
file. When the presentations concluded, the trial court
instructed the jury that it could recommend a death sen-
tence only if it unanimously found that the State had
“prove[d] beyond a reasonable doubt that the aggravating
circumstances, of which the Defendant was found guilty,
outweigh[ed] the [mitigating factors].” State v. Hutton,
100 Ohio St. 3d 176, 185, 2003-Ohio-5607, 797 N.E.2d
948, 958; see Ohio Rev. Code Ann. §2929.03(D)(2). The
jury deliberated and recommended death. The trial court
accepted the recommendation after also finding, “beyond a
reasonable doubt, . . . that the aggravating circumstances
. . . outweigh[ed] the mitigating factors.” §2929.03(D)(3).
The Ohio Court of Appeals and the Ohio Supreme Court
affirmed Hutton’s death sentence. In doing so, both con-
cluded that “the evidence support[ed] the finding of the
aggravating circumstances.” §2929.05(A); see Hutton, 100
Ohio St. 3d, at 187, 797 N. E. 2d, at 961; State v. Hutton,
72 Ohio App. 3d 348, 350, 594 N.E.2d 692, 694 (1995).
The courts also “independently weigh[ed] all of the facts
. . . to determine whether the aggravating circumstances
[Hutton] was found guilty of committing outweigh[ed] the
mitigating factors.” Ohio Rev. Code Ann. §2929.05(A).
Both agreed with the jury and the trial court that “aggra-
vating circumstances outweigh[ed] the mitigating factors,”
and that a death sentence was warranted. Hutton, 100
Ohio St. 3d, at 191, 797 N. E. 2d, at 963–964; see Hutton,
72 Ohio App. 3d, at 352, 594 N. E. 2d, at 695.
The case before this Court concerns Hutton’s subse-
quent petition for federal habeas relief. In 2005, Hutton
filed such a petition pursuant to 28 U.S. C. §2254, argu-
ing that the trial court violated his due process rights
during the penalty phase of his trial. According to Hutton,
the court gave the jurors insufficient guidance because it
failed to tell them that, when weighing aggravating and
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mitigating factors, they could consider only the two aggra-
vating factors they had found during the guilt phase.
Hutton, however, had not objected to the trial court’s
instruction or raised this argument on direct appeal, and
the District Court on federal habeas concluded that his
due process claim was procedurally defaulted. Hutton v.
Mitchell, 2013 WL 2476333, *64 (ND Ohio, June 7, 2013);
see State v. Hutton, 53 Ohio St. 3d 36, 39, n. 1, 559 N.E.
2d 432, 437–438, n. 1 (1990) (declining to address trial
court’s instructions because Hutton “specifically declined
to object . . . at trial, and ha[d] not raised or briefed the
issue” on appeal).
The United States Court of Appeals for the Sixth Circuit
reversed. The court concluded that, notwithstanding the
procedural default, it could “reach the merits” of Hutton’s
claim to “avoid a fundamental miscarriage of justice.”
Hutton v. Mitchell, 839 F.3d 486, 498 (2016) (internal
quotation marks omitted). The Sixth Circuit began its
analysis with Sawyer v. Whitley, 505 U.S. 333 (1992). In
that decision, this Court established that a habeas peti-
tioner may obtain review of a defaulted claim upon
“show[ing] by clear and convincing evidence that, but for a
constitutional error, no reasonable jury would have found
[him] eligible for the death penalty under the applicable
state law.” Id., at 336.
Hutton had not argued that this exception to default
applied to his case. Nonetheless, the Sixth Circuit held
that the exception justified reviewing his claim. The court
gave two reasons: First, Hutton was not eligible to receive
a death sentence because “the jury had not made the
necessary finding of the existence of aggravating circum-
stances.” 839 F.3d, at 498–499. And second, since the
trial court “gave the jury no guidance as to what to con-
sider as aggravating circumstances” when weighing aggra-
vating and mitigating factors, the record did not show that
the jury’s death recommendation “was actually based on a
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review of any valid aggravating circumstances.” Id., at
500. On the merits, the court concluded that the trial
court violated Hutton’s constitutional rights by giving an
erroneous jury instruction. Judge Rogers dissented on the
ground that Hutton could not overcome the procedural
default.
The Sixth Circuit was wrong to reach the merits of
Hutton’s claim. The court’s first reason for excusing de-
fault was that “the jury had not [found] the existence of
aggravating circumstances.” Id., at 498–499. But it had,
at the guilt phase of Hutton’s trial. As Judge Rogers
pointed out, “the jury found two such factors”—engaging
in a course of conduct designed to kill multiple people and
committing kidnaping—“in the process of convicting Hut-
ton . . . of aggravated murder.” Id., at 511. Each of those
findings “rendered Hutton eligible for the death penalty.”
Ibid. Hutton has not argued that the trial court improperly
instructed the jury about aggravating circumstances at
the guilt phase. Nor did the Sixth Circuit identify any
such error. Instead, the instruction that Hutton contends
is incorrect, and that the Sixth Circuit analyzed, was
given at the penalty phase of trial. That penalty phase
instruction plainly had no effect on the jury’s decision—
delivered after the guilt phase and pursuant to an unchal-
lenged instruction—that aggravating circumstances were
present when Hutton murdered Mitchell.
The Sixth Circuit’s second reason for reaching the mer-
its rests on a legal error. Under Sawyer, a court may
review a procedurally defaulted claim if, “but for a consti-
tutional error, no reasonable jury would have found the
petitioner eligible for the death penalty.” 505 U.S., at 336
(emphasis added). Here, the alleged error was the trial
court’s failure to specify that, when weighing aggravating
and mitigating factors, the jury could consider only the
aggravating circumstances it found at the guilt phase.
Assuming such an error can provide a basis for excusing
default, the Sixth Circuit should have considered the
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following: Whether, given proper instructions about the
two aggravating circumstances, a reasonable jury could
have decided that those aggravating circumstances out-
weighed the mitigating circumstances.
But the court did not ask that question. Instead, it
considered whether, given the (alleged) improper instruc-
tions, the jury might have been relying on invalid aggra-
vating circumstances when it recommended a death sen-
tence. See 839 F.3d, at 500 (explaining that, because the
trial court gave “no guidance as to what to consider as
aggravating circumstances,” the court could not determine
whether the death recommendation “was actually based
on a review of any valid aggravating circumstances”). The
court, in other words, considered whether the alleged error
might have affected the jury’s verdict, not whether a
properly instructed jury could have recommended death.
That approach, which would justify excusing default
whenever an instructional error could have been relevant
to a jury’s decision, is incompatible with Sawyer.
Neither Hutton nor the Sixth Circuit has “show[n] by
clear and convincing evidence that”—if properly in-
structed—“no reasonable juror would have” concluded that
the aggravating circumstances in Hutton’s case outweigh
the mitigating circumstances. Sawyer, 505 U.S., at 336.
In fact, the trial court, Ohio Court of Appeals, and Ohio
Supreme Court each independently weighed those factors
and concluded that the death penalty was justified. On
the facts of this case, the Sixth Circuit was wrong to hold
that it could review Hutton’s claim under the miscarriage
of justice exception to procedural default.
The petition for certiorari and motion for leave to pro-
ceed in forma pauperis are granted, the judgment of the
United States Court of Appeals for the Sixth Circuit is
reversed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.