Petition for Writ of Certiorari — Charles Russell Rhines, Petitioner v. Darin Young, Warden
Supreme Court briefFeb 15, 2019
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CASE NO. ________ (CAPITAL CASE) (18A612)
IN THE SUPREME COURT OF THE UNITED STATES
____________________________________________________________
CHARLES RUSSELL RHINES,
Petitioner,
v.
DARIN YOUNG, WARDEN, SOUTH DAKOTA STATE PENITENTIARY,
Respondent.
____________________________________________________________
On Petition for a Writ of Certiorari to
The United States Court of Appeals for the Eighth Circuit
________________________________________________________________
PETITION FOR A WRIT OF CERTIORARI
________________________________________________________________
Neil Fulton
Federal Public Defender
Jason J. Tupman
First Assistant Federal Public Defender
Office of the Federal Public Defender
Districts of South Dakota and
North Dakota
200 W. 10th Street, Suite 200
Sioux Falls, SD 57104
(605) 330-4489
Claudia Van Wyk*
Stuart Lev
Assistant Federal Defenders
Federal Community Defender Office
for the Eastern District of Pennsylvania
601 Walnut Street, Suite 545 West
Philadelphia, PA 19106
(215) 928-0520
*Counsel of Record
Member of the Bar of the Supreme Court
Counsel for Petitioner, Charles Russell Rhines
Dated: February 15, 2019
QUESTIONS PRESENTED
CAPITAL CASE
After this Court decided Pena-Rodriguez v. Colorado, 137 S. Ct. 855 (2017),
Charles Rhines sought relief on the basis of juror statements indicating that antigay stereotypes and animus had affected his juryÊs decision to sentence him to
death. He moved a federal district court for leave to amend his initial petition for a
writ of habeas corpus to include the statements while an appeal from the courtÊs
earlier denial of that initial petition was pending in the Eighth Circuit.
One juror who had voted for death stated that „we also knew that [Mr.
Rhines] was a homosexual and thought that he shouldnÊt be able to spend his life
with men in prison.‰ A second juror indicated about deliberations: „One juror
made . . . a comment that if heÊs gay, weÊd be sending him where he wants to go if
we voted for [life imprisonment without the possibility of parole].‰ And a third juror
noted that there had been „lots of discussion of homosexuality‰ and „a lot of
disgust.‰
The district court ruled that Mr. RhinesÊs motion constituted an unauthorized
„second or successive‰ habeas petition, though the Courts of Appeals are divided on
whether that term of art applies automatically after a district court has issued an
appealable disposition of an initial petition, but before appellate proceedings as to
that initial petition have concluded. The court then declined to issue a certificate of
appealability, as did the majority of a three-judge panel of the Eighth Circuit.
The questions presented are:
Could reasonable jurists debate whether a court may permit an amendment
to an initial habeas corpus petition, without applying 28 U.S.C. § 2244(b)Ês
limitations on „second or successive‰ petitions, when appellate proceedings after a
denial of that initial petition are ongoing?
Could reasonable jurists debate whether Petitioner has made a substantial
showing of a violation of his right to an impartial jury with evidence that at least
one juror relied on anti-gay stereotypes and animus in sentencing him to death?
TABLE OF CONTENTS
QUESTIONS PRESENTED ........................................................................................... i
TABLE OF CONTENTS ................................................................................................ ii
TABLE OF AUTHORITIES ......................................................................................... iv
OPINIONS BELOW ...................................................................................................... 1
JURISDICTION............................................................................................................. 1
RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS ....................... 2
STATEMENT OF THE CASE....................................................................................... 2
I.
Trial And Direct Appeal ..................................................................................... 4
II. State And Federal Postconviction Proceedings Before This CourtÊs Merits
Decision In Pena-Rodriguez ....................................................................................... 6
III. State And Federal Postconviction Proceedings After This CourtÊs Merits
Decision In Pena-Rodriguez ....................................................................................... 9
REASONS FOR GRANTING THE WRIT .................................................................. 13
I. Reasonable Jurists Could Debate, And The Circuits Are Divided Over, The
Availability Of An Amendment Or Supplement To An Initial Federal Habeas
Petition After A District CourtÊs Denial Of That Petition, But Before The
Conclusion Of Appellate Proceedings Following That Denial................................ 14
II. Mr. Rhines Has Made A „Substantial Showing‰ Of A Violation Of His Right
To Be Sentenced By An Impartial Jury With JurorsÊ Statements Indicating That
Anti-Gay Stereotypes And Animus Infected Their Deliberations And Decision To
Sentence Him To Death Instead Of Life Imprisonment. Rule Of Evidence 606(b)
Should Pose No Barrier To A CourtÊs Consideration Of Those Statements. ......... 27
CONCLUSION............................................................................................................. 39
ii
APPENDIX CONTENTS
Eighth Circuit Order Declining to Issue COA ......................................................App. 1
Eighth Circuit Order Denying Petition for Panel Rehearing ..............................App. 2
District Court (D.S.D.) Order Regarding Motion to Amend ................................App. 4
District Court (D.S.D.) Order Declining to Issue COA ......................................App. 28
Jury Note to Trial Court Judge, January 26, 1993 ............................................App. 30
Declaration of Juror, H.K. ...................................................................................App. 33
Declaration of Juror, F.C. ....................................................................................App. 34
Declaration of Katherine Ensler, Federal Community Defender Office ...........App. 35
PetitionerÊs Motion for Leave to Amend Initial Petition
(filed in D.S.D. Sept. 28, 2017) .................................................................App. 35
PetitionerÊs Proposed Amendment to Initial Petition
(filed in D.S.D. Sept. 28, 2017) .................................................................App. 49
PetitionerÊs Letter to Clerk of Court for the Eighth Circuit
(filed in 8th Cir. Dec. 13, 2017).................................................................App. 73
Affidavit of Brett Garland
(filed in D.S.D. Nov. 27, 2017) ..................................................................App. 77
Supplemental Affidavit of Brett Garland
(filed in D.S.D. Feb. 22, 2018)...................................................................App. 84
Supreme Court of South Dakota Order
State v. Rhines, No. 28444 (S.D. Jan. 2, 2018) ........................................App. 87
Voir Dire Transcript for Juror, H.K. (Tr. Vol. 2, 1/5/1993) ................................App. 89
Voir Dire Transcript for Juror, B.B. (Tr. Vol. 5, 1/8/1993) ...............................App. 107
iii
TABLE OF AUTHORITIES
Cases
Adams v. Texas, 448 U.S. 38 (1980) ............................................................................ 34
Ake v. Oklahoma, 470 U.S. 68 (1985) ........................................................................... 6
Amodeo v. United States, 743 F. AppÊx 381 (11th Cir. 2018)
(per curiam) (unpublished) ...................................................................................... 23
Batson v. Kentucky, 476 U.S. 79 (1986) ............................................................... 30, 32
Beaty v. Schriro, 554 F.3d 780 (9th Cir. 2009) ........................................................... 23
Berthiaume v. Smith, 875 F.3d 1354 (11th Cir. 2017) ............................................... 33
Blystone v. Horn, 664 F.3d 397 (3d Cir. 2011) ..................................................... 21, 22
Brady v. Maryland, 373 U.S. 83 (1963) ...................................................................... 19
Buck v. Davis, 137 S. Ct. 759 (2017) ........................................................................... 38
Burton v. Stewart, 549 U.S. 147 (2007) ...................................................................... 12
California v. Ramos, 463 U.S. 992 (1983) ................................................................... 36
Ching v. United States, 298 F.3d 174 (2d Cir. 2002) ........................................... 18, 25
Davis v. Norris, 423 F.3d 868 (8th Cir. 2005) ....................................................... 24, 25
Douglas v. Workman, 560 F.3d 1156 (11th Cir. 2009) (per curiam).................... 19, 20
Equal Employment Opportunity CommÊn v. R.G. &. G.R. Harris Funeral Homes,
Inc., 884 F.3d 560 (6th Cir. 2018) ............................................................................ 34
Ford v. Wainwright, 477 U.S. 399 (1986) ................................................................... 16
Fuller v. United States, 815 F.3d 112 (2d Cir. 2016) (per curiam) ............................ 18
iv
Gonzalez v. Crosby, 545 US 530 (2005) .......................................................... 20, 21, 22
Goodrum v. Busby, 824 F.3d 1188 (9th Cir. 2016) ......................................... 15, 16, 17
Guinan v. Delo, 5 F.3d 313 (8th Cir. 1993) ................................................................. 24
Ham v. South Carolina, 409 U.S. 524 (1973).............................................................. 35
Hively v. Ivy Tech Cmty. Coll. of Indiana, 853 F.3d 339 (7th Cir. 2017) (en banc) .. 34
Howard v. United States, 533 F.3d 472 (6th Cir. 2008) ............................................. 22
J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) ....................................... 30, 31, 34
Kemp v. Ryan, 638 F.3d 1245 (9th Cir. 2011) ............................................................ 33
Kuhlmann v. Wilson, 477 U.S. 436 (1986) .................................................................. 17
Lawrence v. Texas, 539 U.S. 558 (2003) ............................................................... 29, 30
Littlejohn v. Artuz, 271 F.3d 360 (2d Cir. 2001) (per curiam) ................................... 19
Lockhart v. McCree, 476 U.S. 1622 (1986) ................................................................. 34
Loving v. Virginia, 388 U.S. 1 (1967) .......................................................................... 34
Mader v. United States, 654 F.3d 794 (8th Cir. 2011) (en banc) ............................... 25
Magwood v. Patterson, 561 U.S. 320 (2010) ......................................................... 15, 16
McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548 (1984) ......................... 38
Miller-El v. Cockrell, 537 U.S. 322 (2003) .................................................................. 14
Moreland v. Robinson, 813 F.3d 315 (6th Cir. 2016).................................................. 22
Morgan v. Illinois, 504 U.S. 719 (1992) ...................................................................... 35
Murphy v. Florida, 421 U.S. 794 (1975)...................................................................... 37
Nims v. Ault, 251 F.3d 698 (8th Cir. 2001)........................................................... 23, 24
v
Obergefell v. Hodges, 135 S. Ct. 2584 (2015)........................................................ 29, 36
Ochoa v. Sirmons, 485 F.3d 538 (10th Cir. 2007) (per curiam) ................................. 19
Panetti v. Quarterman, 551 U.S. 930 (2007) .............................................................. 16
Pena-Rodriguez v. Colorado, 137 S. Ct. 855 (2017) ............................................ passim
People v. Pena-Rodriguez, 412 P.3d 461 (Col. App. 2012) ......................................... 31
Phillips v. United States, 668 F.3d 433 (7th Cir. 2012) ............................................. 21
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) .................................................... 34
Rhines v. Weber, 544 U.S. 269 (2005) ........................................................................... 6
Rishor v. Ferguson, 822 F.3d 482 (9th Cir. 2016) ...................................................... 23
Salinger v. Loisel, 265 U.S. 224 (1924) ....................................................................... 16
Sanders v. United States, 373 U.S. 1 (1963) ........................................................ 15, 17
Simmons v. South Carolina, 512 U.S. 154 (1994) ........................................................ 7
Slack v. McDaniel, 529 U.S. 473 (2000) .............................................................. passim
Smith v. Armontrout, 888 F.2d 530 (8th Cir. 1989) ............................................. 23, 24
Smith v. Phillips, 455 U.S. 209 (1982) ........................................................................ 38
SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014) ........ 30, 32
State v. Jonas, 904 N.W.2d 566 (Iowa 2017) .............................................................. 33
State v. Lovely, 451 A.2d 900 (Me. 1982).................................................................... 33
State v. Rulon, 935 S.W.2d 723 (Mo. Ct. App. 1996) .................................................. 33
Stewart v. Martinez-Villareal, 523 U.S. 637 (1998) ................................................... 16
T.L. ex rel. Ingram v. United States, 443 F.3d 956 (8th Cir. 2006) ........................... 25
vi
Tharpe v. Warden, 898 F.3d 1342 (11th Cir. 2018) .................................................... 37
United States v. Bates, 590 F. AppÊx 882 (11th Cir. 2014) (unpublished) ................ 33
United States v. Click, 807 F.2d 847 (9th Cir. 1987) ................................................. 33
United States v. Heller, 785 F.2d 1524 (11th Cir. 1986)...................................... 36, 37
United States v. Martin, 132 F. AppÊx. 450 (4th Cir. 2005)
(per curiam) (unpublished) ...................................................................................... 22
United States v. Windsor, 570 U.S. 744 (2013) .......................................................... 32
United States v. Winestock, 340 F.3d 200 (4th Cir. 2003) ......................................... 22
Urinyi v. United States, 607 F.3d 318 (2d Cir. 2010)................................................. 22
Wellons v. Hall, 558 U.S. 220 (2010) (per curiam) ..................................................... 37
Whab v. United States, 408 F.3d 116 (2d Cir. 2005) ...................................... 18, 19, 27
Williams v. Norris, 461 F.3d 999 (8th Cir. 2006) ................................................. 24, 25
Williams v. Thaler, 602 F.3d 291 (5th Cir. 2010) ....................................................... 22
Witherspoon v. Illinois, 391 U.S. 510 (1968) .............................................................. 34
Wong Doo v. United States, 265 U.S. 239 (1924) ....................................................... 17
Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc) .................... 34
Constitutional Provisions
U.S. Const. amend. VI ....................................................................................... 2, 27, 38
U.S. Const. amend. VIII .......................................................................................... 2, 35
U.S. Const. amend. XIV ........................................................................................... 2, 35
vii
Statutes
28 U.S.C. § 1254 ............................................................................................................. 1
28 U.S.C. § 1291 ........................................................................................................... 25
28 U.S.C. § 2253 ................................................................................................. 2, 12, 39
28 U.S.C. § 2254 ....................................................................................................... 2, 16
28 U.S.C. § 2255 ..................................................................................................... 15, 18
S.D. Codified Laws § 19-19-606(b)(1) .......................................................................... 28
Rules
Fed. R. App. P. 12.1 ..................................................................................................... 26
Fed. R. App. P. 4 .......................................................................................................... 21
Fed. R. Civ. P. 59 ........................................................................................... 7, 8, 22, 23
Fed. R. Civ. P. 60 ................................................................................................... 21, 25
Fed. R. Civ. P. 62.1 ...................................................................................................... 26
Fed. R. Evid. 606(b) ............................................................................................... 27, 28
Treatises
Brian R. Means, Postconviction Remedies (July 2018 Update) ..................... 17, 18, 22
Randy Hertz and James S. Liebman, Federal Habeas Corpus Practice and
Procedure (2018) ...................................................................................................... 16
Other Materials
C.J. Williams, To Tell You the Truth, Federal Rule of Criminal Procedure 24(a)
Should Be Amended to Permit Attorneys to Conduct Voir Dire of Prospective
Jurors, 67 S.C. L. Rev. 35 (2015) ............................................................................. 32
viii
Giovanna Shay, In the Box: Voir Dire on LGBT Issues in Changing Times, 37 Harv.
J. L. & Gender 407 (2014) ........................................................................................ 34
Kenji Yoshino, Covering, 111 Yale L.J. 769 (2002) .................................................... 30
Memorandum to All Department Employees from Eric H. Holder, Jr., Attorney
General, on Department Policy on Ensuring Equal Treatment for Same-Sex
Married Couples (Feb. 10, 2014) ............................................................................. 32
U.S. DepÊt of Just., U.S. AttyÊs Manual No. 9-27.745, Unreasonable or Illegal
Sentences .................................................................................................................. 32
ix
PETITION FOR A WRIT OF CERTIORARI
Petitioner Charles Rhines respectfully petitions for a writ of certiorari to
review the judgment of the U.S. Court of Appeals for the Eighth Circuit.
OPINIONS BELOW
The September 7, 2018, order of the U.S. Court of Appeals for the Eighth
Circuit that declined to issue a certificate of appealability (COA) is unpublished and
appears in the Appendix at App. 1.1 The September 18, 2018, order of the Eighth
Circuit that denied a petition for panel rehearing also is unpublished, and appears
in the Appendix at App. 2.
JURISDICTION
This Court has jurisdiction under 28 U.S.C. § 1254(1). The Eighth Circuit
declined to issue a COA on September 7, 2018, and denied a petition for panel
rehearing on September 18, 2018. App. 1–2. On December 11, 2018, Justice Gorsuch
extended the time to file this petition for a writ of certiorari until February 15,
2019.
1 „App.‰ refers to the appendix to this petition for certiorari. Mr. Rhines also is filing
a separate petition for a writ of certiorari to the Eighth Circuit regarding its
disposition of his appeal from the district courtÊs denial of the initial federal
petition, see Rhines v. Young, 18A654, and this petition cites the Appendix and
Addendum to that Eighth Circuit appellate briefing as „CTA App.‰ and „CTA Add.‰
1
RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS
The Sixth Amendment to the Constitution provides, in part: „In all criminal
prosecutions, the accused shall enjoy the right to a . . . trial, by an impartial
jury . . . .‰
The Eighth Amendment to the Constitution provides: „Excessive bail shall
not be required, . . . nor cruel and unusual punishments inflicted.‰
The Fourteenth Amendment to the Constitution provides, in part: „nor shall
any State deprive any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection of the laws.‰
Title 28 United States Code § 2253(c)(1) provides, in part: „Unless a circuit
justice or judge issues a [COA], an appeal may not be taken to the court of appeals
from·(A) the final order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court.‰ Section 2253(c)(2)
provides: „A [COA] may issue under paragraph (1) only if the applicant has made a
substantial showing of the denial of a constitutional right.‰
Section 2244(b)(1) states: „A claim presented in a second or successive habeas
corpus application under section 2254 that was presented in a prior application
shall be dismissed.‰ Section 2244(b)(2) then states: „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 unless·[a statutory exception is met].‰
STATEMENT OF THE CASE
Concern about the potential for anti-gay bias to affect jurorsÊ deliberations
was present from the start of Charles RhinesÊs capital trial. Defense counsel
2
questioned potential jurors about whether they held any such bias. Jurors learned
during the stateÊs case for guilt that Mr. Rhines is gay. They eventually reached a
guilty verdict and·when deciding whether to sentence him to life imprisonment or
death·sent the trial judge a note with questions about life in prison. The note
included questions about whether his jailers would allow him to „mix with the
general inmate population[,]‰ „create a group of followers or admirers[,]‰ „discuss,
d[e]scribe or brag about his crime to other inmates, especially new and[/]or young
men jailed for lesser crimes . . . [,]‰ „marry or have conjugal visits[,]‰ or „be jailed
alone or . . . have a cellmate.‰ App. 30–32. In his direct appeal, Mr. Rhines relied on
the note to argue that anti-gay prejudice had influenced their sentencing decision.
Since 2015, Mr. Rhines has sought an opportunity to demonstrate juror bias
through multiple jurorsÊ statements. This petition arises from his September 2017
motion to amend his initial federal habeas petition with three statements. One juror
stated: „we also knew that he was a homosexual and thought that he shouldnÊt be
able to spend his life with men in prison.‰ App. 33. Another recalled a comment
during deliberations „that if heÊs gay, weÊd be sending him where he wants to go if
we voted for [life imprisonment without the possibility of parole].‰ App. 34. And a
third juror remembered „lots of discussion of homosexuality. There was a lot of
disgust.‰ App. 35 (declaration of Katherine Ensler, Federal Community Defender
Office, quoting the third juror) (some quotation marks omitted). The district court
denied the motion as an unauthorized „second or successive‰ habeas petition. That
ruling underlies this petition.
3
I.
Trial And Direct Appeal
In January 1993, Mr. Rhines stood trial in the Seventh Judicial Circuit Court
of Pennington County, South Dakota, for the murder of Donnivan Schaeffer.
Mr. Rhines filed a pretrial motion for authorization to retain a forensic
communication expert to complete „a community attitude study and design a
supplemental juror questionnaire . . . .‰ See CTA Add. 250. Counsel acted on a
„concern[] that [Mr. RhinesÊs sexual orientation] would unfairly influence the jury,
and . . . anticipated using the . . . survey and juror questionnaire to address this
issue.‰ CTA Add. 250. The trial court denied the motion. CTA Add. 250.
Mr. RhinesÊs lawyers asked all but one of the eventually-selected jurors
whether they would harbor bias against him because he is gay. CTA Add. 251. „Ten
of the jurors expressed neutral feelings about homosexuality, indicating it would
have no impact on their decision making.‰ CTA Add. 251. One „stated that she
regards homosexuality as sinful. However, she also stated RhinesÊ[s] sexual
orientation would not affect how she decided the case. . . .‰ CTA Add 251.
The state presented evidence of Mr. RhinesÊs sexual orientation during its
guilt phase presentation. One witness testified that she had seen Mr. Rhines
„cuddling‰ with her husband. See CTA App. 396. She further testified that Mr.
Rhines had told her that he hated her because her husband loved her instead of Mr.
Rhines. See CTA App. 398. A former partner of Mr. Rhines also testified that he had
a „sexual‰ relationship with Mr. Rhines at one point in time. See CTA App. 326.
The jury found Mr. Rhines guilty of first-degree murder and third-degree
burglary. CTA Add. 225. The stateÊs penalty phase case consisted of its guilt phase
4
evidence and victim impact testimony. CTA App. 463–69; CTA App. 499–500. Mr.
Rhines presented the testimony of his two sisters. CTA App. 469–98. One of his
sisters testified that Mr. Rhines is gay and „struggl[ed] with his sexual
identity . . . .‰ CTA App. 491–95.
The jurors began deliberating at 4:10 pm on January 25. CTA App. 575. On
the morning of January 26, they sent the trial judge a note asking about what
would happen to Mr. Rhines if they sentenced him to life in prison:
Judge Kon[en]kamp,
In order to award the proper punishment we need a clear
p[er]spective on what „Life In Prison Without Parole‰ really means. We
know what the Death Penalty means, but we have no clue as to the
reality of Life Without Parole.
The questions we have are as follows:
1. Will Mr. Rhines ever be placed in a minimum security prison
or be given work release.
2. Will Mr. Rhines be allowed to mix with the general inmate
population
3. [A]llowed to create a group of followers or admirers.
4. Will Mr. Rhines be allowed to discuss, d[e]scribe or brag about
his crime to other inmates, especially new and[/]or young men
jailed for lesser crimes (ex: Drugs, DWI, assault, etc.)
5. Will Mr. Rhines be allowed to marry or have conjugal visits.
6. Will he be allowed to attend college
7. Will Mr. Rhines be allowed to have or attain any of the
common joys of life (ex[:] TV, Radio, Music, Telephone or
hobbies and other activities allowing him distraction from his
punishment).
8. Will Mr. Rhines be jailed alone or will he have a cellmate.
9. What sort of free time will Mr. Rhines have (what would his
daily routine be).
We are sorry, Your Honor, if any of these questions are
inappropriate but there seems to be a huge gulf between our two
alternatives. On one hand there is Death, and on the other hand what
is life in prison w/out parole.
5
App. 30–32. See CTA App. 575–76.
The trial court instructed that „[a]ll the information I can give you is set forth
in the jury instructions,‰ CTA App. 576–78, after declining to follow a defense
request to instruct the jury not to base its „decision on speculation or guesswork,‰
CTA App. 577. Roughly eight hours later, at 6:40 pm, the jury returned a sentence
of death. See CTA App. 579–80.
The South Dakota Supreme Court affirmed. See CTA Add. 200–82. Among
other claims, Mr. Rhines relied on the juryÊs note and argued that it had sentenced
him to death under the influence of passion, prejudice, and other arbitrary factors.
See CTA Add. 269–70. He also argued that the trial court had abused its discretion
by not appointing a communication expert regarding his sexual orientation. See
CTA Add. 250–52. The court rejected these claims on the basis of the record of trial
and voir dire, and concluded that the juryÊs note did not reflect anti-gay bias. See
CTA Add. 269–70; CTA Add. 250–52.
II.
State And Federal Postconviction Proceedings Before This CourtÊs
Merits Decision In Pena-Rodriguez
Mr. Rhines sought state and federal habeas relief through litigation that
included review by this Court. See Rhines v. Weber, 544 U.S. 269 (2005); CTA Add.
283–303.
Mr. Rhines argued among other claims in his initial federal petition that the
state courtÊs decision on his motion to appoint an expert regarding community
perceptions of sexual orientation had been contrary to, or involved an unreasonable
application of, Ake v. Oklahoma, 470 U.S. 68, 74 (1985). See CTA Add. 119–24. He
6
raised ineffective assistance of trial counsel, evidenced by the failure to exclude
evidence of his sexual orientation. See CTA Add. 104–06; CTA Add. 186. And he
argued that the trial court and trial counsel had erred under Simmons v. South
Carolina, 512 U.S. 154, 156 (1994), in responding to the juryÊs note. See CTA Add.
070–73; CTA Add. 106–08.
Between 2000 and 2015, the district court either disqualified or permitted
withdrawal of a multitude of Mr. RhinesÊs attorneys because of career changes. See
CTA App. 8; CTA App. 17–18. During this period, the court also issued a stay to
permit Mr. Rhines to exhaust remedies for a set of claims. See CTA App. 13; CTA
App. 16.
By 2009, the district court had appointed the Federal Public Defender Office
for the District of South Dakota and the District of North Dakota. CTA App. 18.
Then, in April 2015, the district court appointed a new attorney, Carol Camp, to
represent Mr. Rhines alongside that office. See CTA App. 23–24.
The district court denied relief on Mr. RhinesÊs petition in February 2016. See
CTA Add. 001–132.
The next month, Mr. Rhines filed a motion to alter or amend that judgment
under Federal Rule of Civil Procedure 59(e) and included under seal two juror
declarations. See CTA App. 1342–81. The motion explained that, before April 2015
and CampÊs appointment, no attorney had attempted to speak with the jurors about
their note or any other aspect of the case. See CTA App. 1342–48. That filing
specifically alleged that one juror had referred to Mr. Rhines as „Â[t]hat SOB queer,ʉ
CTA App. 1345, and that this reference made other jurors „Âfairly uncomfortable,ʉ
7
CTA App. 1345. The filing also quoted another jurorÊs statements: „ÂOne of the
witnesses talked about how they walked in on Rhines . . . fondling a man in a motel
room bed. I got the sense it was a sexual assault situation and not a relationship
between the two men.ʉ CTA App. 1347. The juror also stated that, if sentenced to
life imprisonment, Mr. Rhines might be „a Âsexual threat to other inmates and take
advantage of other young men in or outside of prison.ʉ CTA App. 1347.
In April 2016, this Court granted a writ of certiorari in Pena-Rodriguez v.
Colorado, 136 S. Ct. 1513 (2016), and Mr. Rhines requested that the district court
hold his case in abeyance in light of that order, see PetÊrÊs Reply to Response to Mot.
to Alter or Amend. Judgment, Rhines v. Young, No. 5:00-cv-05020-KES, ECF No.
340, PageID 5013–14 (D.S.D. filed Apr. 25, 2016).
The district court, however, denied his Rule 59(e) motion in July 2016,
without awaiting the decision in Pena-Rodriguez or hearing live testimony from any
jurors. See CTA Add. 178–96. The court concluded that, „regardless of whether the
juror affidavits are admissible,‰ the motion failed to meet the requirements of Rule
59(e) and any claim of juror bias would be subject to procedural default. See CTA
Add. 182–86. Later that month, the court granted CampÊs motion to withdraw and
appointed the Federal Community Defender Office for the Eastern District of
Pennsylvania in her place. See CTA App. 31. Mr. Rhines filed a timely notice of
appeal from the district courtÊs judgment. See Rhines v. Young, No. 16-3360 (8th
Cir. filed Aug. 3, 2016).
In December 2016, juror interviews provided additional evidence for Mr.
RhinesÊs suspicions of bias. As described above, a juror remembered that „[Mr.
8
Rhines] was a homosexual and thought that he shouldnÊt be able to spend his life
with men in prison.‰ App. 33. Others remembered a similar comment during
deliberations, see App. 34, and „lots of discussion of homosexuality. There was a lot
of disgust.‰ App. 35 (quoting the third juror) (some quotation marks omitted).
In Mr. RhinesÊs Eighth Circuit appeal, he continued to assert that anti-gay
bias had played an improper role in the jurorsÊ deliberations, but limited his
arguments to suspicions arising from their note. See Br. of Appellant, Rhines v.
Young, No. 16-3360, 106 (8th Cir. filed Feb. 7, 2017) (citing the certiorari grant in
Pena-Rodriguez v. Colorado, 136 S. Ct. 1513, in explaining that the note „reflected
anti-gay bias and . . . concerns about Mr. RhinesÊs ability and opportunity to engage
in same-sex sexual activity if sentenced to life‰).
III.
State And Federal Postconviction Proceedings After This CourtÊs
Merits Decision In Pena-Rodriguez
This Court decided Pena-Rodriguez v. Colorado, 137 S. Ct. 855 (2017), in
March 2017. Mr. Rhines later sought leave from the district court to amend his
initial habeas petition with the three statements quoted above to prove that antigay prejudice unconstitutionally had played a role in the juryÊs decision to sentence
him to death.2 See App. 36–48; App. 49–72. In December 2017, Mr. Rhines gave
2 In the alternative, he moved for relief under Federal Rule of Civil Procedure 60(b),
but did not seek to appeal the district courtÊs denial of that motion.
9
notice to the Eighth Circuit of his motion to amend in the district court. App. 73–
74.3
The state opposed the motion. See Resp. Mot. Amend., Rhines v. Young, No.
5:00-cv-05020-KES, ECF No. 389, PageID 6178, 6182–86 (D.S.D. filed Nov. 27,
2017). It also submitted an affidavit signed by an investigator in November 2017
that described interviews with nine jurors. See App. 77–83. Later, the state
submitted another affidavit signed by the same investigator in December 2017 that
described two additional interviews. See App. 84–86.
The three jurors identified in Mr. RhinesÊs motion denied that they had based
their decision to sentence him to death on his sexual orientation, see App. 80–86,
though two confirmed that, during deliberations, a juror had „comment[ed] to the
effect that [Mr.] Rhines might like life in the penitentiary among other men,‰ App.
80–81.
More specifically, the stateÊs investigator indicated that the third juror
quoted above had „recalled a comment to the effect that Rhines might like life in the
penitentiary among other men.‰ App. 81. This juror opined to the investigator that
„the comment was made as Âsomewhat of a tension releaseʉ and „that the foreman
and everyone else on the jury agreed that Rhines was not on trial for being
3 He also sought to introduce the evidence in state court in November of that year,
but the South Dakota Supreme Court ruled that „neither AppellantÊs legal theory
(stereotypes or animus relating to sexual orientation) nor AppellantÊs threshold
factual showing is sufficient to trigger the protections of Pena-Rodriguez,‰ App. 87–
88. This Court subsequently denied a petition for a writ of certiorari to the state
supreme court in June 2018. See Rhines v. South Dakota, No. 17-8791, 2018 WL
2102800, at *1 (2018).
10
homosexual.‰ App. 81. See also App. 81 (adding that „[t]he comment was just Âa one
moment thingÊ which Âwas never referred to againʉ).
The stateÊs supplemental affidavit also quoted this third juror as saying
about Mr. Rhines: „I donÊt care if heÊs queer or not, it didnÊt matter, the crime was
committed as far as IÊm concerned.‰ App. 85 (quotation marks omitted).
According to the stateÊs investigator, the second juror quoted above also said
that „one juror made a joke that Rhines might enjoy a life in prison where he would
be among so many men.‰ App. 80. The second juror opined to the investigator that
the statement and Mr. RhinesÊs sexual orientation had not impacted the jurorsÊ
ultimate decision, submitted a journal, and asserted that the „Âstab at humorÊ Âdid
not go over well.ʉ See App. 80; see also App. 80 („The juror who made the joke said
that what he had said was stupid or dumb or something to that effect and Âthat was
the end of it.ʉ).4
The state investigatorÊs supplemental affidavit described an interview
involving him, an attorney for the state, the first juror, and that jurorÊs wife, who
said that her husband had problems with memory and dementia. App. 85–86. The
juror reported that he had been honest during voir dire and denied that he had
voted for death because Mr. Rhines is gay. App. 85–86. The affidavit also described
the views and opinions of the jurorÊs wife. App. 85–86.
4 The affidavit did not address the jurorsÊ choice of language in their note to the
trial judge about whether life imprisonment would allow Mr. Rhines, for example,
to „mix with the general inmate population[,]‰ „create a group of followers or
admirers[,]‰ or „discuss, d[e]scribe or brag about his crime to other inmates,
especially new and[/]or young men jailed for lesser crimes . . . [,]‰ App. 30–32.
11
The jurors whose statements led to the underlying motion did not retract
their earlier quoted statements, for example, one that „we also knew that he was a
homosexual and thought that he shouldnÊt be able to spend his life with men in
prison,‰ App. 33.
The district court ruled that it lacked jurisdiction to consider Mr. RhinesÊs
motion and that it amounted to a „second or successive‰ petition. See App. 8–16; see
also App. 20 (citing Burton v. Stewart, 549 U.S. 147, 152 (2007), for the rule that a
district court lacks jurisdiction to consider a „second or successive‰ petition unless a
court of appeals has authorized its filing). It denied a COA. See App. 28–29. Mr.
Rhines applied for a COA from the Eighth Circuit, which referred it to a three-judge
panel. Two judges declined to issue one after noting that „[t]he district court denied
relief on the ground that Rhines was seeking second or successive habeas relief that
had not been authorized by the court of appeals, see 28 U.S.C. § 2244(b)(3)(A), and
denied a [COA].‰ See App. 1. A third judge, however, „would [have] grant[ed] the
certificate.‰ App. 1.5
Mr. Rhines sought panel rehearing on the basis that a circuit judge would
have issued a COA, which satisfied the plain text of 28 U.S.C. § 2253(c)(1), but the
panel voted two-to-one to deny the petition for rehearing. See App. 2.
The district court also denied a separate motion that sought permission to have
Mr. Rhines evaluated by a set of experts in preparation for a potential application
for executive clemency. Mr. Rhines appealed, and that appeal is pending in the
Eighth Circuit under Docket No. 18-2376.
12
5
REASONS FOR GRANTING THE WRIT
Mr. Rhines was prepared to prove that jurors relied on anti-gay stereotypes
and animus in sentencing him to death. He proffered a statement from a juror who
remembered an invocation of a stereotype during deliberations: that, if a man is
gay, a vote to imprison him for life without the possibility of parole would „be
sending him where he wants to go . . . .‰ See App. 34. Another remembered „lots of
discussion of homosexuality‰ and „a lot of disgust,‰ App. 35 (quoting the third juror)
(quotation marks omitted). And a third stated, „we also knew that [Mr. Rhines] was
a homosexual and thought that he shouldnÊt be able to spend his life with men in
prison.‰ App. 33.
Mr. Rhines presented these statements and requested a hearing in light of
Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 869 (2017), in a motion to amend his
initial federal habeas petition while a denial of that petition was pending on appeal.
The district court, however, rejected the motion on jurisdictional grounds. The court
applied 28 U.S.C. § 2244(b), and both it and the Eighth Circuit declined to issue a
COA. Yet federal Courts of Appeals disagree over where Congress intended to draw
a line between an initial federal habeas petition and a „second or successive‰ one
subject to § 2244(b). Some circuits have permitted amendment or supplementation
of an initial petition after a district courtÊs denial of that petition, but before
appellate proceedings following that denial have concluded, though most have
applied § 2244(b)Ês limitations on „second or successive‰ petitions.
When a district court has „denie[d] a habeas petition on procedural grounds
without reaching the prisonerÊs underlying constitutional claim,‰ Slack v. McDaniel,
13
529 U.S. 473, 484 (2000), the prisoner seeking a COA must „show[], at least, that
jurists of reason would find it debatable whether the petition states a valid claim of
the denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling,‰ id. This standard
focuses on „the debatability of the underlying constitutional claim, not the
resolution of that debate.‰ Miller-El v. Cockrell, 537 U.S. 322, 342 (2003).
In this case, both the procedural ruling that prevented the district court from
considering the motion with Mr. RhinesÊs underlying claim and the claim itself·
that at least one juror who sentenced him to death relied on bias against his sexual
orientation·present debatable and important questions. This Court should grant
certiorari.
I.
Reasonable Jurists Could Debate, And The Circuits Are Divided Over,
The Availability Of An Amendment Or Supplement To An Initial Federal
Habeas Petition After A District CourtÊs Denial Of That Petition, But
Before The Conclusion Of Appellate Proceedings Following That Denial.
Mr. Rhines has attempted to litigate claims related to the role anti-gay bias
played in his sentencing for over twenty years, but evidentiary and procedural rules
have prevented meaningful review. Earlier, he relied on the jurorsÊ note to the trial
judge during sentencing deliberations because it asked·and offered an apology
for·certain „inappropriate,‰ irrelevant, and troubling questions about the nature of
life in prison. See App. 30–32. After this Court decided Pena-Rodriguez, Mr. Rhines
filed a motion to amend his initial federal habeas petition, arguing that he had a
Sixth Amendment right to rely on the three statements quoted above about his
sexual orientation and the invocation of a disturbing stereotype in support of an
14
impartial sentencing jury claim. The district court held that it lacked jurisdiction
over the motion and that the motion amounted to a „second or successive‰ petition,
after which that court and an Eighth Circuit panel declined to issue a COA.
Reasonable jurists could debate, however, whether the courts needed to apply
§ 2244(b)Ês threshold limitations on „second or successive‰ petitions, because a
petition does not automatically become „second or successive‰ while appellate
proceedings on a „first‰ petition remain ongoing.
A. The Phrase „Second Or Successive‰ Is A Term Of Art And Does Not Refer
To All Petitions Filed Later In Time Than An Initial Petition.
This Court has recognized two features of the phrase „second or successive.‰
First, „Â[it] is a term of art given substance in [the CourtÊs] prior habeas corpus
cases.‰ Slack, 529 U.S. at 486. „The phrase originally arose in the federal context,
see § 2255 (1946 ed., Supp. II), and applied only to applications raising previously
adjudicated claims, see Sanders v. United States, 373 U.S. 1, 12 (1963).‰ Magwood
v. Patterson, 561 U.S. 320, 337 (2010). In 1996, Congress used the term and set
limitations on „[a] claim presented in a second or successive habeas corpus
application . . . .‰ 28 U.S.C. § 2244(b)(1)–(2).
Since 1996, this Court has declined to „suggest the definition of second or
successive [under pre-AEDPA law] would be different under AEDPA.‰ Slack, 529
U.S. at 486.6 „The phrase Âsecond or successiveÊ is not self-defining.‰ Panetti v.
6 AEDPA „changed the standard used to determine when a petition properly
classified as second or successive should be dismissed as an abuse of the writ.‰
Goodrum v. Busby, 824 F.3d 1188, 1193 (9th Cir. 2016). „Congress did not, however,
15
Quarterman, 551 U.S. 930, 943 (2007). Rather, „[i]t takes its full meaning from [the
CourtÊs] case law, including decisions predating the enactment of the [AEDPA].‰ Id.
at 943–44 (citation omitted). See Magwood, 561 U.S. at 332–34, 337.
Second, the Court „has declined to interpret Âsecond or successiveÊ as referring
to all § 2254 applications filed second or successively in time, even when the later
filings address a state-court judgment already challenged in a prior § 2254
application.‰ Panetti, 551 U.S. at 944.
Two examples illustrate this feature. First, the Panetti Court held that
„Congress did not intend the provisions of AEDPA addressing Âsecond or successiveÊ
petitions to govern a . . . § 2254 application raising a Ford-based[7] incompetency
claim filed as soon as that claim is ripe.‰ Panetti, 551 U.S. at 945. There, the Court
expressed its „willingness to look to the Âimplications for habeas practice . . . .ʉ Id. at
945 (quoting Stewart v. Martinez-Villareal, 523 U.S. 637, 644 (1998)). It confirmed
its ultimate conclusion by „consider[ing] AEDPAÊs purposes,‰ id. at 945, and „the
practical effects of [its] holdings . . . ,‰ id. It also noted the lack of any „argument
that petitionerÊs actions constituted an abuse of the writ, as that concept is
explained in [its] cases.‰ Id. at 947.8
alter the set of rules federal habeas courts had developed to determine whether a
petition is second or successive.‰ Id.
7 Ford v. Wainwright, 477 U.S. 399, 410 (1986).
8 See also Salinger v. Loisel, 265 U.S. 224, 230–32 (1924) (describing effect of
petitioners gaining a right to appellate review from a courtÊs judgment on an
application) (cited in Randy Hertz and James S. Liebman, 2 Federal Habeas Corpus
Practice and Procedure § 28.2 (2018)); Wong Doo v. United States, 265 U.S. 239, 241
16
For another example, the Slack Court held that „a habeas petition which is
filed after an initial petition was dismissed without adjudication on the merits for
failure to exhaust state remedies is not a Âsecond or successiveÊ petition as that term
is understood in the habeas corpus context.‰ Slack, 529 U.S. at 478.
Today, as one circuit has summarized, „a petition will not be deemed second
or successive unless, at a minimum, an earlier-filed petition has been finally
adjudicated.‰ Goodrum, 824 F.3d at 1194.
Courts do not agree, however, on what „finally adjudicated‰ means. One
treatise explains: „Naturally, in order for a petition or motion to be Âsecond or
successive,Ê it must be Âfiled subsequent to the conclusion of a proceeding that
counts as the first.Ê The question is at what point does the ÂfirstÊ proceeding conclude
for purposes of the second or successive petition rule?‰ Brian R. Means, Second or
successive defined·Conclusion of „first‰ proceeding required, Postconviction
Remedies § 27:9 (July 2018 Update) (footnote and some quotation marks omitted).
(1924) („To reserve the proof for use in attempting to support a later petition, if the
first failed, was to make an abusive use of the writ of habeas corpus. No reason for
not presenting the proof at the outset is offered.‰); Sanders, 373 U.S. at 15–17
(explaining one rule for petitions that raise grounds that had been subject to earlier
hearings and determinations and a second rule to apply the „abuse of the writ
doctrine‰ if a „new application‰ presented a „different ground‰); Kuhlmann v.
Wilson, 477 U.S. 436, 445 n.6 (1986) (plurality op.) („The terms Âsuccessive petitionÊ
and Âabuse of the writÊ have distinct meanings. A Âsuccessive petitionÊ raises grounds
identical to those raised and rejected on the merits on a prior petition.‰ (citing
Sanders, 373 U.S. at 15–17)).
17
B. The Second And Tenth Circuits Recognize Circumstances When 28 U.S.C.
§ 2244(b) Does Not Apply As Soon As A District Court Files An
Appealable Disposition Of An Initial Habeas Petition.
Two circuits have entertained a proposed amendment or supplement to an
initial petition while appellate proceedings for that petition were pending.
The Second Circuit has held that, „so long as appellate proceedings following
[a] district courtÊs dismissal of [an] initial petition remain pending when a
subsequent petition is filed, the subsequent petition does not come within AEDPAÊs
gatekeeping provisions for Âsecond or successiveÊ petitions.‰ Whab v. United States,
408 F.3d 116, 118 (2d Cir. 2005). There, a pro se petitioner applied to the circuit to
file a subsequent 28 U.S.C. § 2255 petition, while awaiting a decision on an
application for a COA from a district courtÊs earlier denial of an initial § 2255
petition. See id. The court reasoned „that for a subsequent petition to be considered
Âsecond or successiveÊ . . . the disposition of an earlier petition must qualify as an
adjudication on the merits.‰ Id. „[This] law allows every petitioner Âone full
opportunityÊ for collateral review.‰ Id. (quoting Ching v. United States, 298 F.3d
174, 177 (2d Cir. 2002) (Sotomayor, J.)); see also Fuller v. United States, 815 F.3d
112, 113 (2d Cir. 2016) (per curiam) (continuing to apply this precedent, as
discussed in Means, Postconviction Remedies § 27:9). It therefore „transfer[red the
subsequent petition] to the district court for whatever further action the district
court finds appropriate, . . . .‰ Whab, 408 F.3d at 119 (citation and footnote omitted).
The Second Circuit has seen no conflict with AEDPA in this approach and
has noted that courts maintain discretion to deny such filings in accordance with
the Rules of Civil Procedure. See Ching, 298 F.3d at 177 (citing Littlejohn v. Artuz,
18
271 F.3d 360, 362 (2d Cir. 2001) (per curiam)); see also Whab, 408 F.3d at 119 n.2
(„Traditional doctrines, such as abuse of the writ, continue to apply.‰).
The Tenth Circuit also has declined to treat a district courtÊs judgment on an
initial petition as dispositive of whether a subsequent filing is a „second or
successive‰ petition. To reach that result, it relied on a set of factors to identify
„unusual circumstances‰ that justified permission, during an appeal, „to
supplement [a] previously asserted prosecutorial misconduct claim with [new Brady
v. Maryland, 373 U.S. 83 (1963),] allegations . . . .‰ Douglas v. Workman, 560 F.3d
1156, 1189–90 (11th Cir. 2009) (per curiam).9
In Douglas, all of the factors were present, Douglas, 560 F.3d at 1176–96, and
warranted an exception to the circuitÊs usual rule that would apply § 2244Ês
limitations to a supplement to an initial petition while the petition „was already
pending before th[e circuit court] on appeal from the denial of relief,‰ id. at 1189
(discussing Ochoa v. Sirmons, 485 F.3d 538, 541 n.3 (10th Cir. 2007) (per curiam)).
The court explained: (a) an appeal from the denial of an initial petition „remained
pending,‰ id. at 1190; (b) the previously-presented and new claims were „closely
correlated‰ to one another, id. at 1190–92; (c) a prosecutor had committed „willful
and intentional [misconduct],‰ id. at 1192; (d) the prosecutor „took affirmative
actions to conceal his tacit agreement with the stateÊs key witness until it was too
late, procedurally, for [the petitioner] to use that undisclosed agreement
9 „On motion and reasonable notice, the court may, on just terms, permit a party to
serve a supplemental pleading setting out any transaction, occurrence, or event that
happened after the date of the pleading to be supplemented.‰ Fed. R. Civ. P. 15(d).
19
successfully [in earlier proceedings,]‰ id. at 1192–94; (e) „th[e] case involve[d] the
death penalty,‰ id. at 1194; (f) a codefendant had received „habeas relief on the very
same Brady claim . . . [,]‰ id. at 1194–95; and (g) permitting a supplement „d[id] not
implicate the concerns underlying . . . AEDPAÊs severe restrictions on granting . . .
relief on second or successive petitions,‰ id. at 1195.
This Court should recognize that both circuits properly have interpreted the
meaning of „second or successive.‰ A motion filed while an appeal from an earlier
district court judgment on an initial habeas petition remains ongoing or appellate
remedies remain available should not automatically be subject to § 2244(b). Lower
courts should be permitted to exercise their discretion in deciding how to rule on
such a motion and to take into account why a petitioner filed a motion after a
district court had entered a judgment.
C. Six Circuits Have Applied The Limitations On „Second Or Successive‰
Applications After Either A District Court Issued An Appealable Order
Regarding An Initial Petition Or A Petitioner Filed A Notice Of Appeal
(Or Ran Out Of Time To Do So) From Such An Order. The Eleventh
Circuit Has Taken Inconsistent Positions.
Courts in this category that have addressed the question have drawn bright
lines, but some have recognized that this CourtÊs case law does not identify where to
draw them. Nearly all rely on Gonzalez v. Crosby, 545 U.S. 524, 530 (2005), to
support the conclusion that an „application‰ for habeas relief filed after the time for
filing a notice of appeal, or later, constitutes a „second or successive‰ application.
Gonzalez, however, addressed „whether a Rule 60(b) motion filed by a habeas
petitioner is a Âhabeas corpus applicationÊ as the statute uses that term.‰ Gonzalez,
545 U.S. at 530. It did not explain how to determine whether an „application‰
20
amounts to a „second or successive‰ one. The petitioner in that case had filed a Rule
60(b) motion with no remaining avenue to appeal an earlier district court dismissal
of an initial petition as untimely. Id. at 527. Thus, Gonzalez did not settle the
question presented here.
The Seventh Circuit treats a habeas application a petitioner files after having
filed a notice of appeal (or the expiration of time to do so) as a „second or successive‰
one. See Phillips v. United States, 668 F.3d 433, 435–36 (7th Cir. 2012). For
instance, one petitioner „filed his Rule 60(b) motion not only after an appeal had
been filed, but also about six months after the time for appeal had run out,‰ and the
court concluded that „the motion cannot be treated as suspending the judgmentÊs
finality . . . .‰ Id. at 435–36 (citing Fed. R. App. P. 4(a)(4)). The court, however,
appeared to recognize that Gonzalez, by itself, did not dictate that result. See
Phillips, 668 F.3d at 435 („Under Gonzalez, the motion was an ÂapplicationÊ for
collateral relief. ¶ But was it a second application? The first was still pending on
appeal.‰). The court also discussed the possibility of a remand to render a judgment
non-final, if the district court had issued a favorable indicative ruling. See id. at
436.
The Third and Sixth Circuits follow a similar course, but read Gonzalez as
dispositive for Rule 60(b) motions. In Blystone v. Horn, 664 F.3d 397 (3d Cir. 2011),
the Third Circuit reasoned that, although Gonzalez „did not explicitly address . . .
whether a Rule 60(b) motion, which constitutes a habeas corpus petition, is properly
treated as a second or successive one,‰ id. at 413, any Rule 60(b) motion properly
treated as such „must be a second or successive petition because, the judgment
21
having become final, the petitioner has expended the Âone full opportunity to seek
collateral reviewÊ that AEDPA ensures,‰ id. (quoting Urinyi v. United States, 607
F.3d 318, 320 (2d Cir. 2010)). This reasoning aligns the Third Circuit with the Sixth
Circuit. See Howard v. United States, 533 F.3d 472, 474–75 (6th Cir. 2008);
Moreland v. Robinson, 813 F.3d 315, 324–25 (6th Cir. 2016). Still, both circuits
distinguish Rule 59(e) motions. See Blystone, 664 F.3d at 415; Howard, 533 F.3d at
475; see also Means, Postconviction Remedies § 27:13 (noting split among courts on
GonzalezÊs application to Rule 59(e) motions).
The Fifth Circuit, by contrast, has applied Gonzalez without grappling with
the issues presented here·whether a motion relates to an initial habeas
application that itself has not been finally adjudicated and whether an „application‰
constitutes a „second or successive‰ one. Instead, the Fifth Circuit analyzes whether
any Rule 59 or Rule 60 motion presents grounds for federal habeas relief and, if one
does, treats it as a „second or successive‰ petition without further analysis. See
Williams v. Thaler, 602 F.3d 291, 302–13 (5th Cir. 2010). The Fourth Circuit seems
to have taken this approach as well. See United States v. Winestock, 340 F.3d 200,
203–07 & n.1 (4th Cir. 2003); see also United States v. Martin, 132 F. AppÊx. 450,
451 (4th Cir. 2005) (per curiam) (unpublished) (addressing a Rule 59 motion, cited
in Williams, 602 F.3d at 302 n.5).
In addition, the Ninth Circuit has concluded „that [a petitioner]
cannot . . . amend his petition after the district court has ruled and proceedings
have begun in th[e] court [of appeals] (much less after the Supreme Court denied
certiorari on the claims on which [the court of appeals] had already ruled).‰ Beaty v.
22
Schriro, 554 F.3d 780, 783 n.1 (9th Cir. 2009); cf. Rishor v. Ferguson, 822 F.3d 482,
490–93 (9th Cir. 2016) („hold[ing] that a Rule 59(e) motion that raises entirely new
claims should be construed as a second or successive habeas petition . . . .‰).
Finally, the Eleventh Circuit recently noted that it „has no published opinion
establishing when the adjudication of a § 2255 motion becomes final such that the
Âsecond or successiveÊ limitation applies to all future motions.‰ Amodeo v. United
States, 743 F. AppÊx 381, 385 (11th Cir. 2018) (per curiam) (unpublished). Two
unpublished decisions „appear to have taken opposite positions.‰ Id. at n.1.
D. The Eighth Circuit Initially Reached Conflicting Conclusions About The
Availability Of Amendment While Appealing A Denial Of An Initial
Petition, But Now Has Aligned Itself With The Majority Of The Circuits.
Before AEDPA, the Eighth Circuit treated a habeas petitionerÊs motion for a
remand „to amend his petition extensively and obtain an evidentiary hearing on a
number of new issues‰ as „the functional equivalent of a second or successive
petition for habeas corpus.‰ Smith v. Armontrout, 888 F.2d 530, 540 (8th Cir. 1989)
(going on to conclude that the „abuse of the writ‰ standard would apply).
After Congress passed AEDPA in 1996, a different panel took an approach in
line with the one the Second Circuit eventually adopted. In Nims v. Ault, 251 F.3d
698 (8th Cir. 2001), a petitioner filed an initial habeas petition, which a district
court denied on the merits in 1991. See id. at 700. Then, he learned of „potential
juror misconduct‰ and sought a remand to file an amended petition. Id. „[The
circuit] dismissed [his pending] appeal without prejudice . . . and remanded . . . .‰ Id.
Eventually, the circuit applied AEDPA to the amended petition and denied relief
because he could not overcome procedural default for his juror misconduct claim.
23
See id. at 700–03. One judge dissented on a jurisdictional basis: „[b]ecause [the
petitioner] received an adjudication on the merits of all issues raised in a prior
petition,‰ the judge concluded that the petitioner needed § 2244(b) authorization to
file a „second or successive‰ petition. See id. at 703–05 (Bye, J., dissenting).
Later, without addressing Nims, another panel applied the earlier Smith rule
to deny a petitionerÊs motion for a remand that would have permitted him to amend
an initial habeas petition with a new claim. It concluded that such a motion
constituted „the functional equivalent of a second or successive petition . . . .‰ Davis
v. Norris, 423 F.3d 868, 878 (8th Cir. 2005) (citing Smith, 888 F.2d at 540, and
Guinan v. Delo, 5 F.3d 313, 316–17 (8th Cir. 1993)).
Finally, a fourth panel sought to reconcile the inconsistent precedents by
treating Davis as binding. The court reasoned in part: „Although we granted a
remand in Nims, we did so in 1992, prior to the passage of AEDPA. As such, at the
time of the remand we expected the petitioner to be able to later raise both his
original and amended claims on appeal.‰ Williams v. Norris, 461 F.3d 999, 1004
(8th Cir. 2006) (citing dissenting opinion of Bye, J., in Nims, 251 F.3d at 705). It
added that „Davis presented a different situation in that the petitionerÊs request for
a remand occurred after the passage of AEDPA.‰ Id.; see also id. („elect[ing] to
follow Davis as it is more recent, it offers a more detailed analysis of this specific
issue, and it is more similar to WilliamsÊs case . . . .‰).10
10 In 2011, the Eighth Circuit adopted a rule „that when faced with conflicting panel
opinions, the earliest opinion must be followed, Âas it should have controlled the
subsequent panels that created the conflict.ʉ Mader v. United States, 654 F.3d 794,
24
Today, although the Eighth Circuit has aligned itself with the majority of
circuits, its uneven course and the continuing circuit split reflect that reasonable
jurists could debate the procedural issue in Mr. RhinesÊs case.
E. Reasonable Jurists Could Debate Whether Mr. RhinesÊs Motion Is A
„Second Or Successive‰ Petition.
The Court should grant review to resolve the competing interpretations of
§ 2244. At a minimum, the nature of the issue and the circuit split demonstrate that
Mr. Rhines has satisfied the first requirement for a COA by showing that
reasonable jurists could debate the issue.
Further, the Eighth CircuitÊs reasoning in Davis and Williams·that
Congress intended to change the meaning of „second or successive‰ through
AEDPA·is in tension with this CourtÊs precedents. Yet the district court applied
that reasoning and ruled that Mr. RhinesÊs motion constituted a „second or
successive‰ petition without the requisite circuit authorization. See App. 8–16. It
used the same approach to conclude that it lacked jurisdiction if the motion arose
under Federal Rule of Civil Procedure 60(b). See App. 16–20.11
800 (8th Cir. 2011) (en banc) (quoting T.L. ex rel. Ingram v. United States, 443 F.3d
956, 960 (8th Cir. 2006)).
11 In addition, the district court indicated that an application is „second or
successive‰ if a petitioner files it after a district court issues a final, appealable
judgment. See App. 9–10. But see Ching, 298 F.3d at 178 (explaining that
„adjudication of an initial habeas petition is not necessarily complete, such that a
subsequent filing constitutes a Âsecond or successiveÊ motion, simply because the
district court rendered a judgment that is ÂfinalÊ within the meaning of 28 U.S.C.
§ 1291‰).
25
The district court also indicated that Mr. Rhines did not seek a remand from
the Eighth Circuit after the appellate court gained jurisdiction over the case, App.
15–16, but such reasoning should not have precluded the issuance of a COA. Mr.
Rhines attempted to navigate a circuit split and the course of Eighth Circuit law.
See App. 38–40.12 Before filing a notice of appeal, he filed a Rule 59(e) motion and
asked the district court to postpone ruling on it until after this Court decided Pena-
Rodriguez. See PetÊrÊs Reply to Response to Mot. to Alter or Amend. Judgment,
Rhines v. Young, No. 5:00-cv-05020-KES, ECF No. 340, PageID 5013–14 (D.S.D.
filed Apr. 25, 2016). Later, he gave notice to the Eighth Circuit of his motion to
amend in the district court. App. 73–74.
If Mr. RhinesÊs motion is not automatically subject to the limitations of
§ 2244(b) as a threshold matter, the district court had jurisdiction to consider
whether to grant it. The extraordinary circumstances of this case and Mr. RhinesÊs
impartial sentencing jury claim discussed in detail below·combined with the claim
in his initial petition aimed at the trial courtÊs response to the juryÊs penalty phase
note about life in prison·at least warrant an opportunity to meet the sort of
multifactor analysis the Tenth Circuit applies. Moreover, his appeal from the denial
of his initial petition remained pending when this Court decided Pena-Rodriguez
and he filed his motion in the district court. Thus, the Second Circuit would not
12 Federal Rule of Civil Procedure 62.1 also permits district courts to issue
indicative rulings while a case is pending on appeal. See Fed. R. Civ. P. 62.1(a)(3);
See also Fed. R. App. P. 12.1(b) („If the district court states that it would grant the
motion or that the motion raises a substantial issue, the court of appeals may
remand for further proceedings but retains jurisdiction unless it expressly dismisses
the appeal.‰).
26
have automatically treated his motion a „second or successive‰ petition under its
approach to filings received when „the earlier petition had not been finally
adjudicated,‰ Whab, 408 F.3d at 120.
Accordingly, this Court should conclude that jurists of reason could debate
whether § 2244(b) applied as a threshold matter and precluded the district court
from considering Mr. RhinesÊs motion. A COA should have issued to address this
procedural ground that is subject to a dispute among the circuits. The procedural
ruling prevented Mr. Rhines from having an opportunity to prove that anti-gay
stereotyping and animus unconstitutionally affected his sentencing, as discussed in
further detail below. See Slack, 529 U.S. at 484.
II.
Mr. Rhines Has Made A „Substantial Showing‰ Of A Violation Of His
Right To Be Sentenced By An Impartial Jury With JurorsÊ Statements
Indicating That Anti-Gay Stereotypes And Animus Infected Their
Deliberations And Decision To Sentence Him To Death Instead Of Life
Imprisonment. Rule Of Evidence 606(b) Should Pose No Barrier To A
CourtÊs Consideration Of Those Statements.
Mr. Rhines seeks to litigate questions that are worthy of this CourtÊs review:
Could reasonable jurists debate whether (1) the evidence he proffered demonstrates
that bias against his sexual orientation played an impermissible role in a juryÊs
decision to sentence him to death and (2) the Sixth Amendment requires that noimpeachment rules give way in light of evidence that anti-gay bias infected a juryÊs
death sentence, as it requires when a juror indicates a reliance on racial bias to
reach a guilt phase verdict? See Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 869
(2017).
27
The jurorsÊ statements Mr. Rhines included with his motion to amend, if
credited, along with the juryÊs note during sentencing deliberations, would have
demonstrated that the state obtained a death sentence in violation of the right to an
impartial sentencing jury. As described above, one juror stated that „[the jury] also
knew that [Mr. Rhines] was a homosexual and thought that he shouldnÊt be able to
spend his life with men in prison.‰ App. 33. A second juror recalled hearing a juror
invoke a stereotype during deliberations: if a man is gay, to imprison him for life
without the possibility of parole would „be sending him where he wants to go . . . .‰
See App. 34. And a third juror recalled „lots of discussion of homosexuality,‰ and „a
lot of disgust.ʉ App. 35 (quoting the third juror) (quotation marks omitted).
Until Pena-Rodriguez, however, statements from the jurors would have been
inadmissible under either the Federal Rules of Evidence or South DakotaÊs rules,
both of which provide:
During an inquiry into the validity of a verdict or indictment, a juror
may not testify about any statement made or incident that occurred
during the juryÊs deliberations; the effect of anything on that jurorÊs or
another jurorÊs vote; or any jurorÊs mental processes concerning the
verdict or indictment. The court may not receive a jurorÊs affidavit or
evidence of a jurorÊs statement on these matters.
Fed. R. Evid. 606(b)(1); see S.D. Codified Laws § 19-19-606(b)(1) (same).
Mr. Rhines argued in the district court that Pena-Rodriguez gave him a Sixth
Amendment right to rely on the statements in support of an impartial jury claim.
This Court should consider whether reasonable jurists could debate this question
and whether Mr. RhinesÊs proffer, if credited, states a valid claim for sentencing
relief. See Slack, 529 U.S. at 484.
28
A. Anti-Gay Bias Poses An Intolerable Threat To Impartial Jury Sentencing.
Pena-Rodriguez arose „at the intersection of the CourtÊs decisions endorsing
the no-impeachment rule and its decisions seeking to eliminate racial bias in the
jury system.‰ Pena-Rodriguez, 137 S. Ct. at 868. Two jurors came forward to state
that a third juror, during deliberations on guilt in a noncapital case, „had expressed
anti-Hispanic bias toward [a] petitioner and [the] petitionerÊs alibi witness.‰ Id. at
861. The Court held:
where a juror makes a clear statement that indicates he or she relied on
racial stereotypes or animus to convict a criminal defendant, the Sixth
Amendment requires that the no-impeachment rule [under a state rule
of evidence] give way in order to permit the trial court to consider the
evidence of the jurorÊs statement and any resulting denial of the jury
trial guarantee.
Id. at 869. It distinguished instances of juror „drug and alcohol abuse‰ and „prodefendant bias,‰ id. at 868, by stressing the „systemic injury to the administration
of justice‰ that would be risked if juror-based racial discrimination were „left
unaddressed,‰ id.
Anti-gay bias, if left unaddressed, risks systemic harm to the justice system
and, in particular, capital jury sentencing.
Prejudice based on sexual orientation is long-standing and deeply rooted.
„Until the mid–20th century, same-sex intimacy long had been condemned as
immoral by the state itself in most Western nations, a belief often embodied in the
criminal law.‰ Obergefell v. Hodges, 135 S. Ct. 2584, 2596 (2015); see also Lawrence
v. Texas, 539 U.S. 558, 575 (2003) („When homosexual conduct is made criminal by
the law of the State, that declaration in and of itself is an invitation to subject
29
homosexual persons to discrimination both in the public and in the private
spheres.‰); id. at 597 (Scalia, J., dissenting) („There are 203 prosecutions for
consensual, adult homosexual sodomy reported in the West Reporting system and
official state reporters from the years 1880–1995. There are also records of 20
sodomy prosecutions and 4 executions during the colonial period.‰ (citations
omitted)).
Historically, „[g]ays and lesbians did not identify themselves as such because
. . . being openly gay resulted in significant discrimination. The machineries of
discrimination . . . were such that explicit exclusion of gay individuals was
unnecessary·homosexuality was Âunspeakable.ʉ SmithKline Beecham Corp. v.
Abbott Labs., 740 F.3d 471, 485 (9th Cir. 2014) (citing and quoting Kenji Yoshino,
Covering, 111 Yale L.J. 769, 814–36 (2002)).
Among the „[s]tereotypes of gays and lesbians‰ that courts have recognized as
having „pernicious effects‰ are that they are „promiscuous, . . . Âdisease vectorsÊ or
child molesters.‰ SmithKline, 740 F.3d at 486 (citation omitted).
The Court has recognized that classifications other than those on the basis of
race require court intervention in an analogous context, jury selection. See J.E.B. v.
Alabama ex rel. T.B., 511 U.S. 127, 143 (1994) (applying Batson v. Kentucky, 476
U.S. 79, 100 (1986), to peremptory strikes on the basis of gender). And Justice
KennedyÊs concurrence in J.E.B. noted concerns about gender bias in jury
deliberations: „We do not prohibit racial and gender bias in jury selection only to
encourage it in jury deliberations. Once seated, a juror should not give free rein to
some racial or gender bias of his or her own.‰ Id. at 153 (Kennedy, J., concurring).
30
Moreover, „[t]he wise limitation on the authority of courts to inquire into the
reasons underlying a juryÊs verdict does not mean that a jury ought to disregard the
courtÊs instructions. A juror who allows racial or gender bias to influence
assessment of the case breaches the compact and renounces his or her oath.‰ Id.
(Kennedy, J., concurring).
In addition, the pragmatic concerns the Court addressed in Pena-Rodriguez
apply here. Compare Pena-Rodriguez, 137 S. Ct. at 869 (explaining the difficulty in
relying on voir dire), with, e.g., People v. Pena-Rodriguez, 412 P.3d 461, 474 (Colo.
App. 2012) (explaining that „while some prospective jurors may be hesitant to admit
racial bias, prospective jurors may be hesitant to admit gender bias, . . . [and] bias
based on sexual orientation, . . .‰), affÊd sub. nom. Pena-Rodriguez v. People, 350
P.3d 287, 293 (Colo. 2015), revÊd and remanded sub nom. Pena-Rodriguez, 137 S. Ct.
at 871. In fact, Mr. RhinesÊs lawyers asked all but one of the jurors if they could
treat him fairly after learning that he is gay. Despite the jurorsÊ assurances of
fairness, evidence now shows that the fact of Mr. RhinesÊs sexual orientation played
an impermissible role in their sentencing deliberations.
„The stigma that attends racial bias may make it difficult for a juror to report
inappropriate statements during the course of juror deliberations.‰ Pena-Rodriguez,
137 S. Ct. at 869. That remains true for anti-gay bias, and trial courtsÊ usual
safeguards doubly failed in this case. The jurors wrote a note to the trial court that
suggested their improper consideration of sexual orientation, but did not report the
inappropriate use of stereotypes and animus that had occurred. See App. 30–32.
And the trial court told the jury to keep deliberating without addressing, let alone
31
disapproving of, the suggestion in the note that jurors inappropriately were
discussing sexual orientation. See CTA App. 575–78.
Lower courts have recognized the need for similar protections against
discrimination and stereotyping on the basis of oneÊs sexual orientation.
For example, the Ninth Circuit, applying United States v. Windsor, 570 U.S.
744, 751–52 (2013), has held that Batson applies when an attorney exercises
peremptory strikes on the basis of a potential jurorÊs sexual orientation, stressing
that „in its words and its deed, Windsor established a level of scrutiny for
classifications based on sexual orientation that is unquestionably higher than
rational basis review.‰ SmithKline, 740 F.3d at 481, 486.13
Other courts, considering the facts of each case, have reached conflicting
conclusions regarding whether a party must be permitted to question
veniremembers about their potential anti-gay bias.14 For example, in United States
13 The U.S. AttorneyÊs Manual stated in February 2018: „The attorney for the
government should oppose attempts by the court to impose any sentence that is: . . .
(5) based on a prohibited factor, such as race, religion, gender, ethnicity, national
origin, sexual orientation, or political association, activities, or beliefs.‰ U.S. DepÊt of
Just., U.S. AttyÊs Manual No. 9-27.745, Unreasonable or Illegal Sentences (last
updated Feb. 2018) (emphasis added). And, in 2012, the U.S. Department of Justice
adopted a policy that „[Batson] should be interpreted to extend to juror strikes
based on sexual orientation.‰ C.J. Williams, To Tell You the Truth, Federal Rule of
Criminal Procedure 24(a) Should Be Amended to Permit Attorneys to Conduct Voir
Dire of Prospective Jurors, 67 S.C. L. Rev. 35, 69 n.35 (2015) (quoting Memorandum
to All Department Employees from Eric H. Holder, Jr., Attorney General, on
Department Policy on Ensuring Equal Treatment for Same-Sex Married Couples
(Feb. 10, 2014)).
14 The Supreme Judicial Court of Maine stated in 1982: „It is axiomatic that a juror
who admittedly harbors anti-homosexual prejudice should be subject to inquiry at
the trial of an individual who is or may be perceived to be a homosexual.‰ State v.
32
v. Bates, 590 F. AppÊx 882 (11th Cir. 2014) (unpublished), the Eleventh Circuit held
that a federal district court in a noncapital case had been constitutionally required
to permit voir dire on bias when a defendantÊs „sexual activity and gender nonconforming conduct‰ were „Âinextricably bound upÊ with the issues to be resolved at
trial.‰ Id. at 887 (quoting Ristaino v. Ross, 424 U.S. 589, 597 (1976)). Later, in
Berthiaume v. Smith, 875 F.3d 1354 (11th Cir. 2017), the circuit reversed a federal
district court for a similar failure when „the sexual orientation of [a plaintiff in a
civil case] and his witnesses [were] central facts at trial and were Âinextricably
bound upÊ with the issues to be resolved at trial,‰ id. at 1358 (quoting Rosales-Lopez
v. United States, 451 U.S. 182, 189 (1981)); cf. State v. Jonas, 904 N.W.2d 566, 571–
75 (Iowa 2017) (discussing „cases in which potential jurors expressed bias related to
gay people in cases with sexual context,‰ and concluding that a trial court abused its
discretion in denying a for-cause challenge when a veniremember had expressed
„actual bias against gay people in the original questionnaire and during voir dire‰);
Giovanna Shay, In the Box: Voir Dire on LGBT Issues in Changing Times, 37 Harv.
Lovely, 451 A.2d 900, 902 (Me. 1982); cf. State v. Rulon, 935 S.W.2d 723, 726 (Mo.
Ct. App. 1996) („If we assume that the Ham [v. South Carolina, 409 U.S. 524
(1973),] requirements apply to prejudice against homosexuals, there is nothing
indicating that issue was inextricably bound up with the conduct of the trial.‰). But
see United States v. Click, 807 F.2d 847, 849–50 (9th Cir. 1987) (affirming trial
courtÊs denial of a gay defendantÊs request for questioning in a noncapital case
regarding „bias against homosexuals,‰ reasoning that „the effect of asking such a
question is sufficiently problematic to justify its avoidance by the trial court‰);
Kemp v. Ryan, 638 F.3d 1245, 1262 (9th Cir. 2011) (concluding, in an AEDPA case
in which a state court judge, not a jury, had sentenced the defendant to death: „[the
petitioner] has not offered any case law holding that homophobia should be elevated
to the same level as racial prejudice‰).
33
J. L. & Gender 407, 427–34 (2014) (discussing cases involving veniremembersÊ
expressions of potential bias on the basis of sexual orientation during voir dire).15
B. Providing Sentencing Discretion To Capital Jurors Creates A Special Risk
That They Will Invoke Intolerable Bias During Their Deliberations.
This Court long has recognized the „special context of capital sentencing.‰
Lockhart v. McCree, 476 U.S. 162, 182–83 (1986) (citing Witherspoon v. Illinois, 391
U.S. 510, 519, 520–21 (1968), and Adams v. Texas, 448 U.S. 38, 46, 50 (1980)).
Inherent in this „special context‰ is that states have given juries „broad discretion to
decide whether or not death is Âthe proper penaltyÊ in a given case, . . . .‰ Id. (quoting
Witherspoon, 391 U.S. at 519). To look away from evidence that jurors invoked
deeply-rooted and socially-harmful prejudice in exercising that discretion risks a
15 Further, when jurors perceive a male capital defendantÊs relationship with
another man with bias, stereotypes, or disgust, but they would not have that same
perception of a female capital defendantÊs relationship with a man, then they are
biased because of sex and applying gender stereotypes. Cf. Pena-Rodriguez, 137 S.
Ct. at 869 (indicating that its decision involved „racial stereotypes‰ in addition to
„animus‰); J.E.B., 511 U.S. at 146 („When persons are excluded from participation
in our democratic processes solely because of race or gender, this promise of
equality dims, and the integrity of our judicial system is jeopardized.‰). Two circuits
sitting en banc now have concluded in Title VII cases that discrimination on the
basis of sexual orientation is a form of sex discrimination, following reasoning from
Loving v. Virginia, 388 U.S. 1, 7–12 (1967), and Price Waterhouse v. Hopkins, 490
U.S. 228, 238–58 (1989), among other cases. See Zarda v. Altitude Express, Inc., 883
F.3d 100, 113–15, 124–28 (2d Cir. 2018) (en banc); Hively v. Ivy Tech Cmty. Coll. of
Indiana, 853 F.3d 339, 342, 345–49 (7th Cir. 2017) (en banc); see also Hively, 853
F.3d at 341–42, 350 (collecting cases regarding this issue); cf. Equal Employment
Opportunity CommÊn v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 571
(6th Cir. 2018) (panel decision concluding that „[d]iscrimination on the basis of
transgender and transitioning status is necessarily discrimination on the basis of
sex‰). Petitions for writs of certiorari are pending in Altitude Express v. Zarda, No.
17-1623, and R.G. & G.R. Harris Funeral Homes, No. 18-107.
34
„systemic loss of confidence‰ in capital jury sentencing. See Pena-Rodriguez, 137 S.
Ct. at 869.
This CourtÊs jurisprudence regarding constitutional requirements associated
with voir dire reflects its particular concern that juror bias might operate more
freely in capital sentencing than in other contexts. The Court has noted the
difficulty in assessing voir dire on appeal, but „ha[s] not hesitated, particularly in
capital cases, to find that certain inquiries must be made to effectuate
constitutional protections.‰ Morgan v. Illinois, 504 U.S. 719, 730 (1992) (citing
Turner v. Murray, 476 U.S. 28, 36–37 (1986); Ham v. South Carolina, 409 U.S. 524,
526–27 (1973)). In Ristaino v. Ross, a noncapital case, it explained that „questioning
about racial prejudice‰ must be allowed as a matter of constitutional law under
particular circumstances. See Ross, 424 U.S. at 596–97 (discussing Ham, 409 U.S.
at 527). Subsequently, after Turner, courts must treat capital cases involving
interracial crimes as presenting the necessary circumstances. See Turner, 476 U.S.
at 36–37.
Reasonable jurists could debate whether the logic of Pena-Rodriguez applies
not only to racial bias in jury factfinding respecting guilt, but also to anti-gay bias
in capital jury sentencing. Indeed, the Government of the United States conceded
during oral argument for Pena-Rodriguez that „capital cases do present Eighth
Amendment considerations . . . . The Court has often suggested under the Eighth
Amendment different sets of rules apply, and there may be different considerations
in that context,‰ Pena-Rodriguez, No. 15-606, Tr. of Oral Arg. 51 (Oct. 11, 2016).
Just as the Court considered Fourteenth Amendment principles in Pena-Rodriguez,
35
137 S. Ct. at 867–68, reasonable jurists could consider the „Ârecogni[tion] that the
qualitative difference of death from all other punishments requires a
correspondingly greater degree of scrutiny of the capital sentencing determination,ʉ
Turner, 476 U.S. at 35 (plurality opinion) (quoting California v. Ramos, 463 U.S.
992, 998–99 (1983)).
C. Reasonable Jurists Could Debate The Scope Of Mr. RhinesÊs Sixth
Amendment Right In Light Of The Juror Statements That Reflect Anti-Gay
Prejudice.
Three factors further demonstrate that the Eighth Circuit should have issued
a COA.
First, Mr. Rhines presented statements from jurors reflecting stereotypes and
animus aimed at an immutable characteristic, his sexual orientation. See
Obergefell, 135 S. Ct. at 2596 (citing expert recognition „that sexual orientation is
both a normal expression of human sexuality and immutable‰). The statements in
this case also confirm his suspected interpretation of the jury note. See App. 30–32.
To the extent jurors now characterize statements as poorly chosen jokes or
deny their effect on the deliberations, this Court should recognize that the nature of
the statements and willingness to make them in deciding whether a man should
live or die betrays any attempt to minimize their weight. As the Eleventh Circuit
explained in a similar context: „[A]nti-Semitic ÂhumorÊ is by its very nature an
expression of prejudice on the part of the maker. . . .‰ United States v. Heller, 785
F.2d 1524, 1527–28 (11th Cir. 1986). Moreover, „[i]t is inconceivable that by merely
denying that they would allow their earlier prejudiced comments to influence their
36
verdict deliberations, the jurors could have thus expunged themselves of the
pernicious taint of anti-Semitism.‰ Id. (footnote omitted).16
Second, jurorsÊ statements in this case evidence a clear and disturbing nexus
between intolerable bias and the choice of a death sentence to, in one jurorÊs words,
keep Mr. Rhines from „life with men in prison‰ or, as another commented with
regard to his sexual orientation, from „where he wants to go.‰ Compare App. 33–35,
and Tharpe v. Sellers, 138 S. Ct. 545, 546 (2018) (per curiam) (reversing a COA
decision, in part, because „[a jurorÊs] remarkable affidavit·which he never
retracted·presents a strong factual basis for the argument that [the petitioner]Ês
race affected [the juror]Ês vote for a death verdict‰), with Tharpe, 138 S. Ct. at 553
(Thomas, J., dissenting) (noting that jurors „testified that they did not consider race
and that race was not discussed during their deliberations‰).17
16 Courts assess whether improper bias arose even when jurors do not expressly
recognize or admit that they harbor such bias. See, e.g., Murphy v. Florida, 421 U.S.
794, 800–03 (1975); Smith v. Phillips, 455 U.S. 209, 221–23 (1982) (OÊConnor, J.,
concurring). Rather, assessing the role of bias involves factual determinations. See
Phillips, 455 U.S. at 215; see also Wellons v. Hall, 558 U.S. 220, 221–26 (2010) (per
curiam) (granting a petition for a writ of certiorari, vacating a judgment in light of
an erroneous ruling on procedural default, and remanding to consider whether a
petitioner would be entitled to discovery and a hearing regarding claims of juror
and court bias and misconduct).
17 On remand, the Eleventh Circuit again denied a COA. See Tharpe v. Warden,
898 F.3d 1342, 1344 (11th Cir. 2018). It reasoned that Pena-Rodriguez did not apply
to that case because the conviction had become final before the Pena-Rodriguez
decision and that the petitioner had not overcome procedural default. See id. It did
not address the „second or successive‰ issue that led the courts in Mr. RhinesÊs case
to decline to consider his motion. A petition for a writ of certiorari to the Eleventh
Circuit is pending. See Tharpe v. Ford, No. 18-6819.
37
Third, Mr. Rhines can demonstrate actionable bias, see Phillips, 455 U.S. at
215–16, and juror misconduct in the form of providing material false information
during voir dire, see McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548,
549 (1984).18 Two of the jurors whose statements Mr. Rhines has proffered
indicated during voir dire that his sexual orientation would not affect their decision.
See App. 101–03 (first juror quoted in this petition); App. 111–12 (third juror quoted
in this petition). Yet Mr. Rhines has proffered evidence of actionable bias by at least
one juror: a desire to prevent him from „spending his life with men in prison‰ and
expressions of „disgust‰ about his sexual orientation. Had each juror answered voir
dire questions honestly, Mr. Rhines could have raised at least one successful forcause challenge.
To allow a juror to vote for a manÊs death using anti-gay stereotypes and
animus unquestionably violates the Sixth and Fourteenth Amendments, along with
the foundational principle that „[o]ur law punishes people for what they do, not who
they are. Dispensing punishment on the basis of an immutable characteristic flatly
contravenes this guiding principle,‰ Buck v. Davis, 137 S. Ct. 759, 778 (2017)
(applying the Sixth Amendment guarantee of effective assistance of counsel when
an attorney injected race-based testimony into a juryÊs sentencing determination).
For the reasons discussed above, Mr. Rhines has made „a substantial showing of the
18 Under McDonough Power, a new trial is necessary if (1) „a juror failed to answer
honestly a material question on voir dire,‰ and (2) „a correct response would have
provided a valid basis for a challenge for cause.‰ Id. at 556.
38
denial of a constitutional right," 28 U.S.C. § 2253(c)(2), and this Court should grant
the petition for a writ of certiorari.
CONCLUSION
For the reasons discussed above, this Court should grant the petition for a
writ of certiorari.
Respectfully submitted,
arnacALOgiC
Neil Fulton, Federal Public Defender
Jason J. Tupman
First Assistant Federal Public Defender
Office of the Federal Public Defender
Districts of South Dakota and
North Dakota
200 W. 10th Street, Suite 200
Sioux Falls, SD 57104
Claudia Van Wyk*
Stuart Lev
Assistant Federal Defenders
Federal Community Defender Office
for the Eastern District of Pennsylvania
601 Walnut Street, Suite 545 West
Philadelphia, PA 19106
(215) 928-0520
(605) 330-4489
* Counsel of Record
Member of the Bar of the Supreme Court
Counsel for Petitioner, Charles Russell Rhines
Dated: February 15, 2019
39
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.