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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 Jennings 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 entered 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 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 difficulty 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, asserting, as
relevant here, three theories of ineffective assistance of counsel
in the punishment phase of his trial. Jennings first claimed trial
counsel was ineffective for failing to present evidence of his
disadvantaged background, 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 offered his
mother and sister as witnesses.
Jennings next argued that trial counsel was ineffective for
failure to investigate and to present evidence of Jennings’ 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 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 impairment in the punishment phase.
Finally, Jennings argued that counsel was constitutionally
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
ineffectiveness when counsel fails to investigate or to introduce
substantial mitigating evidence in a sentencing proceeding. 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 ineffectiveness. 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 deprived
background and failure to investigate evidence of mental
impairment). Jennings argued before the Fifth Circuit that the
District Court correctly found constitutional ineffectiveness on
both
Wiggins theories, and argued 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 by28
U. S. C. §2253(c). Section 2253(c) provides, 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
. American Railway
Express Co.,265 U. S. 425,435 (1924). But an appellee who
does not cross-appeal may not “attack the decree with a view either
to enlarging his own rights thereunder or of lessening the rights
of his adversary.”
Ibid. Since Jennings did not cross-appeal
the denial of his
Spisak theory, we must determine whether
urging that theory sought to enlarge his rights or lessen the
State’s under the District Court’s judgment granting habeas
relief.
The District Court’s opinion, in its section labeled “Order,”
commanded the State to “release Jennings from custody unless,
within 120 days, the State of Texas grants Jennings a new
sentencing hearing or resentences him to a term of imprisonment as
provided by Texas law at the time of Jennings[ ’ ]
crime.” 2012 WL 1440387, at *7. The District Court’s corresponding
entry of judgment contained similar language. App. 35. The
intuitive answer to the question whether Jennings’ new theory
expands these rights is straightforward: Jennings’ rights under the
judgment were what the judgment provided—release, resentencing, or
commutation within a fixed time, at the State’s option; the
Spisak theory would give him the same. Similarly, the
State’s rights under the judgment were to retain Jennings in
custody pending resentencing or to commute his sentence; the
Spisak theory would allow no less.
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 resentencing), 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 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 judgment, 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 (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 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 alteration of issue-preclusive effects the touchstone of
necessity for cross-appeal would require cross-appeal for
every defense 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 entitled, 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 proceeding 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 applicant who has won
resentencing would be required to take a cross-appeal in order to
raise a rejected claim that would result in a new trial. Similarly,
even if a habeas applicant has won retrial below, a claim that his
conduct was constitutionally beyond the power of the State to
punish would require cross-appeal. And even a successful applicant
doing no more than defending his judgment on appeal is confined to
those alternative grounds present
in the record: he may not
simply argue
any alternative basis, regardless of its
origin.
Ibid.
Moreover, successful habeas applicants have an incentive 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 substantiate its claim that our holding will
foster the presentation 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 certificate 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
government’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 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 realitythat
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 corollary 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 discrete federal tax
liabilities.
Pfeiffer,
supra, at 248;
Alexander,
supra, at 486. In
Pfeiffer, the
Commissioner prevailed 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
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 payment 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 arguments 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 expandedthe 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
American 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 pronounced by the judgment below.
Once we have rejected the State’s—and dissent’s—theories of
implied terms in conditional writs, Jennings’
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 certificate 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 showing 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 noticed 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 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 Circuit and remand the case for
consideration of Jennings’
Spisak claim.
It is so ordered.