Petition for Writ of Certiorari — Daniel H. Kilgore, Petitioner v. Ronda J. Pash, Warden, et al.
Supreme Court briefMay 7, 2019
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No. _______
_________________________________________
IN THE
SUPREME COURT OF THE UNITED STATES
_________________________________________
DANIEL KILGORE, Petitioner
v.
CHANTAY GODERT, Respondent
_________________________________________
On Petition for Writ of Certiorari
to the U.S. Court of Appeals, Eighth Circuit
_________________________________________
PETITION FOR A WRIT OF CERTIORARI
_________________________________________
Carlyle Parish LLC
Elizabeth Unger Carlyle*
6320 Brookside Plaza #516
Kansas City, Missouri 64113
*Counsel of Record
ATTORNEYS FOR PETITIONER
QUESTIONS PRESENTED FOR REVIEW
After Mr. Kilgore entered a plea of guilty to two counts of child molestation,
the court ordered (following a plea agreement) that Mr. Kilgore be sent to the
Missouri Department of Corrections for a 120-day “program,” the Missouri Sexual
Offender Unit (SOAU). Under Mo Rev. Stat. § 559.115, persons who successfully
complete this “program” may be released on probation.. However, the SOAU simply
evaluates the prisoner and decides whether to recommend probation. No treatment
or education is provided. Mr. Kilgore was unaware of this when he entered his plea.
The prison did not recommend probation, and Mr. Kilgore is now serving his
prison sentence. After habeas corpus proceedings, Mr. Kilgore was denied relief and
a certificate of appealability without explanation. The case thus presents the
following questions:
1. Is Mr. Kilgore entitled to appeal the district court’s decision that Missouri
did not violate Mr. Kilgore’s right to due process of law when he was ordered to
participate in a program that did not exist as a condition to obtaining probation?
2. s Mr. Kilgore entitled to appeal the district court’s decision that Mr.
Kilgore’s plea of guilty was voluntary and conformed to due process despite the fact
that he was not informed of the true nature of the SOAU “program” before he
entered his plea of guilty?
3. Did the court of appeals’ unexplained denial of a COA as to any grounds
improperly insulate its decision from review by this Court?
i
LIST OF PARTIES AND CORPORATE DISCLOSURE STATEMENT
Daniel Kilgore is the Petitioner in this case and was represented in the Court
below by Elizabeth Unger Carlyle.
Chantay Godert, Warden of Northeast Missouri Correctional Center where
Mr. Kilgore is now housed, is the respondent in this case. Ronda Pash, Warden of
Crossroads Correctional Center was the respondent in the court below. They were
represented in the court below by Assistant Missouri Attorney General Stephen
Hawke.
Pursuant to Rule 29.6, Petitioner states that no parties are corporations.
ii
TABLE OF CONTENTS
Questions Presented For Review ................................................................................... i
List of Parties and Corporate Disclosure Statement ................................................... ii
Table of Contents ......................................................................................................... iii
Table of Authorities ...................................................................................................... v
Opinions Below ............................................................................................................. 1
Jurisdictional Statement .............................................................................................. 1
Statutory and Constitutional Provisions Involved ....................................................... 1
U.S. Const. Amend. XIV ..................................................................................... 1
28 U.S.C. § 2253 .................................................................................................. 2
Statement of The Case .................................................................................................. 3
Reasons For Granting The Writ .................................................................................... 9
I. THIS COURT SHOULD GRANT CERTIORARI TO DIRECT THE COURT
OF APPEALS TO ISSUE A COA AND REVIEW MR. KILGORE’S GROUNDS
FOR RELIEF ....................................................................................................... 9
A. DENIAL OF DUE PROCESS WHEN MR. KILGORE WAS
SENTENCED TO A NONEXISTENT “PROGRAM” ............................ 10
B. INVOLUNTARY GUILTY PLEA WHERE MR. KILGORE WAS
NOT AWARE THAT THE “PROGRAM” TO WHICH HE AGREED TO
BE SENTENCED DID NOT EXIST ...................................................... 11
II. THIS COURT SHOULD GRANT CERTIORARI TO REQUIRE COURTS
OF APPEALS TO EXPLAIN DENIALS OF CERTIFICATES OF
APPEALABILITY ............................................................................................. 13
Conclusion .................................................................................................................... 16
iii
Index To Appendix
Order of court of appeals ............................................................................................. 1a
Memorandum and order of district court ................................................................... 2a
Order of district court regarding motion under Rule 59(e) ...................................... 12a
Kilgore v. State .......................................................................................................... 15a
iv
TABLE OF AUTHORITIES
Cases
Board of Pardons v. Allen, 482 U.S. 369, 374 (1987).................................................. 11
Boykin v. Alabama, 395 U.S. 238 (1969) .................................................................... 12
Buck v. Davis, 137 S.Ct. 759, 773-774 (2017) ......................................................... 9, 13
Chanthakoummane v. Stephens, 816 F.3d 62 (5th Cir. 2016)................................... 15
Dickens v. .Ryan, 552 F.Appx 770 (9th Ctr. 2014) ..................................................... 15
eene v. Kelley, No. 16-7425, 137 S.Ct. 2973 (2017) .................................................... 13
Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1
(1979) ........................................................................................................................ 10
Griffin v. Sec’y,787 F.3d 1086 (11th Cir. 2015) .......................................................... 15
Hill v. Lockhart,474 U.S. 52, 58 (1985) ...................................................................... 12
Hohn v. United States, 524 U.S. 236 (1998) ............................................................... 15
Lafler v. Cooper, 566 U.S. 156 (2012) ......................................................................... 12
Libretti v. United States, 516 U.S. 29, 50–51 (1995) ................................................. 12
Maggard v. Wyrick, 800 F.2d 195, 198 (8th Cir.1986) ............................................... 10
McGonagle v. United States, 137 F. Appx 373 (1st Cir. 2005) .................................. 15
Middleton v. Attorneys General, 396 F.3d 207 (2nd Cir. 2005) ................................. 15
Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) ...................................................... 9, 12
Murphy v. 1Ohio, 263 F.3d 466 (6th Cir. 2001).................................................... 14, 15
Padilla v. Kentucky, 559 U.S. 356 (2010), .............................................................. 8, 11
Pickens v. Workman,373 F. App’x 847 (10th Cir. 2010). ........................................... 15
Porterfield v. Bell, 258 F.3d 484 (6th Cir. 2001) ........................................................ 14
Swisher v. True, 325 F.3d 225 4th Cir. 2003)............................................................. 15
Treesh v. Robinson,No. 12-4539, 2013 U.S. App. Lexis 3878 (6th Cir. Feb. 13, 2013)
................................................................................................................................... 15
Webster v. Adm’r N.J. State Prison, No. 13-338I, 2013 U.S. App. Lexis 25719 (3d
Cir. Oct.25, 2013) ...................................................................................................... 15
Williams v. Missouri Bd. of Probation & Parole, 661 F.2d 697, 698-699 (8th Cir.
1981) .......................................................................................................................... 10
Woods v. Buss, 234 F.Appx 409 (7th Cir. 2007) ......................................................... 15
v
Statutes
28 U.S.C. § 1254 ............................................................................................................. 1
28 U.S.C. § 2253 .............................................................................................. iii, 2, 9, 16
28 U.S.C. § 2254 ........................................................................................................... 10
Mo Rev. Stat. § 559.115 .................................................................................... i, 3, 8, 10
Mo. Sup. Ct. R. 24.035 ................................................................................................... 4
U.S. Const. Amend. XIV § 1 .......................................................................................... 1
Other Authorities
Nancy J. King, Non-Capital Habeas Cases After Appellate Review: An Empirical
Analysis, 24 FED. SENT. RPTR 308 (2012). ................................................................ 14
vi
Petitioner Daniel Kilgore prays that a writ of certiorari be granted to review
the judgment of the Eighth Circuit Court of Appeals entered on August 20, 2018.
.
OPINIONS BELOW
The order of the Eighth Circuit denying a Certificate of Appealability (COA)
and dismissing Mr. Kilgore’s appeal is printed at Appendix (hereinafter “App.”) p.
1a. No opinion accompanied the decision or was reported. The memorandum and
order of the district court is printed beginning at App. 2a.
JURISDICTION
The judgment of the Eighth Circuit Court of Appeals was entered on January
8, 2019, denying a COA as to all grounds presented in Mr. Kilgore’s petition for writ
of habeas corpus as to which the district court denied relief, and dismissing Mr.
Kilgore’s appeal See App. p. 1a. No petition for rehearing was filed. On April 1,
2019, Justice Gorsuch granted Mr. Kilgore’s motion for extension of time to file the
petition for writ of certiorari and ordered that it be filed on or before May 8, 2019.
The jurisdiction of this Court is invoked under 28 U.S.C. § 1254.
STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED
U.S. Const. Amend. XIV § 1
All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the state wherein they reside. No
1
state shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; 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.
28 U.S.C. § 2253
(a) In a habeas corpus proceeding or a proceeding under section 2255 before a
district judge, the final order shall be subject to review, on appeal, by the court of
appeals for the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a proceeding to test the
validity of a warrant to remove to another district or place for commitment or trial a
person charged with a criminal offense against the United States, or to test the
validity of such person’s detention pending removal proceedings.
(c)
(1) Unless a circuit justice or judge issues a certificate of appealability, 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; or
(B) the final order in a proceeding under section 2255.
2
(2) A certificate of appealability may issue under paragraph (1) only if the
applicant has made a substantial showing of the denial of a constitutional
right.
(3) The certificate of appealability under paragraph (1) shall indicate which
specific issue or issues satisfy the showing required by paragraph (2).
STATEMENT OF THE CASE
Mr. Kilgore entered a plea of guilty to two counts of child molestation, with
the agreement that the state would dismiss a third count, and would recommend a
sentence of twelve years concurrent on each of the two remaining counts. The state
also agreed to recommend that Mr. Kilgore be sent to the Missouri Department of
Corrections for a 120-day “program,” the Missouri Sexual Offender Unit (SOAU).
Under Mo Rev. Stat. § 559.115, persons convicted of sex offenses who successfully
complete this “program” shall be released on probation, with limited exceptions:
When the court recommends and receives placement of an offender in a
department of corrections one hundred twenty-day program, the
offender shall be released on probation if the department of corrections
determines that the offender has successfully completed the program
except as follows. . . . The court shall release the offender unless such
release constitutes an abuse of discretion.
(Emphasis added.)
The court rejected the state’s recommendation for concurrent sentences,
instead imposing consecutive twelve year sentences. 1 The court agreed with the
1 Mr. Kilgore understood that, because of the plea bargaining policy of the
sentencing judge, the state’s recommendation was not binding on the court.
3
SOAU recommendation. Mr. Kilgore was then sent to the Missouri Department of
Corrections for a period of 120 days. While there, he was treated as any other DOC
prisoner except for an interview with a counselor in training and an institutional
parole officer. There were no classes or therapy provided to Mr. Kilgore to assist
him in rehabilitating himself. He had no conduct violations, and behaved as a model
prisoner. However, the parole officer reported to the court that Mr. Kilgore was not
a good candidate for probation. Despite the fact that the same test was given to Mr.
Kilgore as was given before his plea, with the same results indicating low risk, the
parole officer made the subjective judgment based on her single interview with him
that Mr. Kilgore was deceitful and lacked remorse, and recommended against
probation. Notably, the report did not indicate that Mr. Kilgore had failed to
successfully complete a “program.” After receiving the report, the court denied
probation.
Mr. Kilgore filed a timely motion under Mo. Sup. Ct. R. 24.035 for postconviction relief. At the evidentiary hearing on that motion, Mr. Kilgore presented
the depositions of a counselor who had observed the prison interview and the
institutional parole officer who interviewed Mr. Kilgore and wrote the report
recommending that he not be granted probation.
Gerald Hoeflein, a licensed professional counselor, signed the SOAU report.
The company Mr. Hoeflein works for, Mental Health Management (“MHM”),
contracts with the DOC “to assess the offender’s risk of reoffending and amenability
to treatment in the community or prison” as part of SOAU.
4
Mr. Hoeflein explained that SOAU is an opportunity for judges to send
offenders to prison for 120 days. During that time, SOAU assesses the risk for
sexually reoffending. Typically, the SOAU assessment lasts from an hour and a half
to two hours. Mr. Hoeflein did not know what the individual does during the
remaining 119 days of incarceration. SOAU provides neither treatment nor
diagnosis to offenders. It is not a “program” as he understood the term.
Keshia Ritter, the institutional parole officer who completed the report to the
court recommending against probation, explained that of her function in SOAU was
to interview the individual to get background information and that individual’s
version of the present offense in order to make a recommendation to the court about
either granting or denying probation. The inmate and his or her attorney are not
provided a copy of the report by DOC.
Ms. Ritter agreed with Mr. Hoeflein that SOAU is not a program. No
treatment is provided in SOAU. The SOAU process is virtually identical to that
which the Department of Probation and Parole provides to the court in a presentence report, with the addition of input from a counselor.
The post-conviction evidence also included the deposition testimony of Julie
Motley, the director of the Missouri Sexual Offender Program (MOSOP), of which
the SOAU is a part. Ms. Motley testified that her team had created an in-house
brochure describing SOAU as follows:
The SOAU is not a treatment program. Its primary focus is to assist
the court and Board of Probation and Parole regarding offender risk or
the danger they pose to the community and their amenability to
outpatient treatment within community settings. The specialized
5
assessment report provided to the court will include a general
assessment of the mental and emotional health, determination of the
probable risk to sexually reoffend, amenability for treatment and
change, a recommendation that will focus on the risks to others and
where that risk can be most effectively dealt with in the community or
in a correctional setting. It is expected that any sex offender considered
appropriate for release on probation will be required to participate in
sex offender specific treatment while on probation.
(Emphasis added.)
Ms. Motley explained that the only purpose of SOAU is to determine an
individual’s risk of sexually reoffending and whether or not the offender is
amenable to community treatment and parole, or if he or she requires incarceration
and more intensive sex offender treatment. SOAU does not inform the individual
how to successfully complete a program, and participants are given no educational
materials, workbooks or similar materials. There are no standardized criteria,
written or oral, for determining when a person has successfully completed SOAU
and SOAU does not determine whether an individual has successfully completed a
program.
Trial counsel also testified at the evidentiary hearing. He believed that
SOAU was a “program with a varied protocol, including group counseling,
individual counseling and an assessment of the risk of re-offense, amongst many
other things.” Trial counsel told Mr. Kilgore that the program was difficult, but that
Mr., Kilgore could successfully complete it by actively participating in the programs
they offered and being amenable to suggestions from the staff or counselors, and by
working on his habit of being “reflexively argumentative.”
6
Mr. Kilgore testified at the post-conviction hearing that based on trial
counsel’s statements to him, he expected SOAU to consist of courses, classes, and
testing over which he would have control to successfully complete or not. He did not
understand that he would receive no education or treatment.
Mr. Kilgore testified that he would not have entered a plea of guilty had he
known that successfully completing SOAU depended entirely on the report writer’s
opinion, after an interview early in his prison stay, of his likelihood of offending.
Since he was unaware of this fact, when he entered his plea of guilty, he relied on
his attorney’s advice that while the program was “difficult,” he would have no
problem successfully completing it.
The post-conviction motion court denied relief, and Mr. Kilgore appealed. On
appeal, the Missouri Court of Appeals found that SOAU is a “program,” that the
statute creating it does not create a liberty interest, and that Mr. Kilgore was not
induced to plead guilty either by a misunderstanding of the nature of SOAU or by
misinformation from his trial counsel. In the alternative, the court held that trial
counsel was not required to advise Mr. Kilgore about the nature of SOAU because it
was a “collateral consequence” of the plea.
Mr. Kilgore appealed these findings. The court of appeals affirmed the
decision of the motion court in an unpublished opinion. App. p. 15a.
In his subsequent habeas corpus petition, Mr. Kilgore contended, in Ground
1, that his right to due process of law was violated because he was sentenced to
complete a treatment program that could not be successfully completed, and his
7
agreement to plead guilty was premised on his understanding that he would have
the opportunity to demonstrate success in a treatment program before the judge
decided whether to place him on probation.
The district court failed to address this issue, finding instead that the
question of whether SOAU was a “program” within the meaning of Mo Rev. Stat.
§ 559.115 was a matter of state law. Mr. Kilgore did not contend before the district
that he was not sentenced to a “program.” Rather, he contended that the actions of
the Missouri Department of Corrections, after he was sentenced under Mo. Rev.
Stat. § 559.115.3 to the SOAU “program,” did not satisfy the statutory mandate that
he be placed in a program which he can “successfully complete,” and therefore
violated his right to due process of law.
In Ground 2, Mr. Kilgore contended he was denied effective assistance of
counsel and his plea was involuntary because his trial counsel failed to understand,
and therefore to communicate to him, the real nature of the SOAU. The district
court found that the nature of the advice given by counsel was in dispute, that
Padilla v. Kentucky, 559 U.S. 356 (2010), does not clearly extend to all collateral
consequences of a plea, and that there was no prejudice.
The district court denied relief, and, denying Mr. Kilgore’s post-judgment
motion, also denied a COA as to all grounds in the petition. 2 With respect to the
COA, the district court cited the relevant authorities from this Court, then said
2 The issues raised in Grounds 3 and 4 of Mr. Kilgore’s petition are not before this
Court.
8
only, “The Court holds no reasonable jurist could disagree with its decision and
declines to issue a certificate of appealability.” App. p. 13a. Mr. Kilgore then sought
a COA in the court of appeals. Without revealing its analysis, the court of appeals
denied a COA. App. p. 1a.
REASONS FOR GRANTING THE WRIT
I.
THIS COURT SHOULD GRANT CERTIORARI TO DIRECT THE
COURT OF APPEALS TO ISSUE A COA AND REVIEW MR.
KILGORE’S GROUNDS FOR RELIEF.
The court of appeals denied Mr. Kilgore a COA as to all grounds rejected by
the district court. At least two of them merit appellate review.
In Buck v. Davis, 137 S.Ct. 759, 773-774 (2017), this Court rejected the
reasoning of the Fifth Circuit in denying a COA, holding that the court had
improperly reviewed the merits of the claim:
The court below phrased its determination in proper terms—that
jurists of reason would not debate that Buck should be denied relief,
623 Fed. Appx., at 674—but it reached that conclusion only after
essentially deciding the case on the merits. . . . We reiterate what we
have said before: A “court of appeals should limit its examination [at
the COA stage] to a threshold inquiry into the underlying merit of [the]
claims,” and ask “only if the District Court’s decision was debatable.”
Of course, in Mr. Kilgore’s case, this Court cannot determine the reasoning
employed by either the district court or the Eighth Circuit when they denied a COA
as to any issue. However, the standard of 28 U.S.C. § 2253, as interpreted in Buck
and this Court’s other cases, notably Miller-El v. Cockrell, 537 U.S. 322, 338 (2003),
9
requires a COA in Mr. Kilgore’s case. The individual grounds as to which review is
required are discussed below.
A. DENIAL OF DUE PROCESS OF LAW UNDER U.S. CONST. AMEND.
XIV WHEN MR. KILGORE, AS A CONDITION OF AMENDMENT OF HIS
SENTENCE OF IMPRISONMENT TO PROBATION, WAS DIRECTED TO
PARTICIPATE IN A “PROGRAM” WHICH DOES NOT EXIST.
The district court held that whether SOAU was “program” within the
meaning of the Missouri statute, and whether the statute created an enforceable
liberty interest to which a right to due process attached, were matters of state law.
But whether there is a liberty interest is a question of federal constitutional law,
not state law. See Greenholtz v. Inmates of Nebraska Penal and Correctional
Complex, 442 U.S. 1 (1979); Williams v. Missouri Bd. of Probation & Parole, 661
F.2d 697, 698-699 (8th Cir. 1981); Maggard v. Wyrick, 800 F.2d 195, 198 (8th
Cir.1986). All of these cases analyze state parole statutes and find that they create
a federally protected liberty interest. This was Mr. Kilgore’s claim in state and
federal court. Thus, if the decision of the state court unreasonably applies that law,
relief is required. 28 U.S.C. § 2254(d)(2).
Reasonable jurists could debate whether the Missouri statute conveys a
liberty interest. Mo. Rev. Stat. § 559.115.3 promises that a person sentenced to a
department of corrections program “shall” be released on probation (with narrow
exceptions) upon “successful completion” of the program. This Court has regularly
held that use of the word “shall” in a statute pertaining to early release or prison
programs ordinarily creates a liberty interest. Greenholtz v. Inmates of Nebraska
10
Penal and Correctional Complex, 442 U.S. 1 (1979);. While Missouri statute
provides that the trial court does retain some discretion to reject the DOC’s
recommendation for release of a defendant sentenced under § 559.115.3, that
discretion is not unfettered. In Greenholtz and its progeny, this Court recognized a
liberty interest despite the fact that “parole-release decisions are inherently
subjective. . . .” Board of Pardons v. Allen, 482 U.S. 369, 374 (1987). Thus,
reasonable jurists could find that a liberty interest was established, and the
decision of court below is in conflict with this Court’s decisions. A COA is required
as to Ground 1, and this Court should grant certiorari to correct the conflict.
B. INVOLUNTARY GUILTY PLEA
A COA is likewise required to correct the decision of the district court
regarding Mr. Kilgore’s claim that he was denied due process of law when he
entered his plea of guilty under the mistaken belief that the state would recommend
that he be sentenced to a “program” that both he and his counsel agreed included
classes and counseling. The reviewing courts essentially dismissed this contention,
holding that the SOAU recommendation was a collateral consequence of the
conviction. This holding clearly conflicts with this Court’s analysis.
The courts below disputed whether Padilla v. Kentucky, 559 U.S. 356 (2010),
would require Mr. Kilgore to be informed about the nature of the SOAU before he
entered his plea of guilty. But that is the wrong question. The evidence is
undisputed that Mr. Kilgore (unlike Mr. Padilla) WAS informed about the SOAU
11
before he entered his plea of guilty. The evidence is likewise undisputed that the
advice he received was incorrect.
Mr. Kilgore’s counsel testified that he told Mr. Kilgore that SOAU included
counseling, individual counseling and an assessment of the risk of re-offense,
amongst many other things” and that he could successfully complete the program,
“By participating actively in the programs that they offered, by being amenable to
suggestions from the staff or counselors. . . .” Mr. Kilgore testified that he believed
that at SOAU, he would participate in classes and testing, and could control over
whether he successfully completed the program or not. Instead, as the
administrators of the program testified, and their brochure provided, “The SOAU is
not a treatment program.”
Thus, the question before the courts below was not whether trial counsel was
required to tell Mr. Kilgore about the SOAU. It was whether he did so accurately,
and if he did not, whether those inaccuracies affected Mr. Kilgore’s decision to plead
guilty. Libretti v. United States, 516 U.S. 29, 50–51 (1995), Hill v. Lockhart,474
U.S. 52, 58 (1985); Henderson v. Morgan, 426 U.S. 637 (1976); Boykin v. Alabama,
395 U.S. 238 (1969). See also Lafler v. Cooper, 566 U.S. 156 (2012) (trial counsel’s
incorrect advice causing defendant to reject plea offer was ineffective assistance of
counsel.) Under these cases, incorrect advice as to the nature and terms of plea
agreements is ineffective assistance of counsel. A COA was required as to this issue,
and certiorari should be granted to correct the erroneous disregard of the Miller-El
v. Cockrell, 537 U.S. 322, 338 (2003), standard.
12
II.
THIS COURT SHOULD GRANT CERTIORARI TO REQUIRE
COURTS OF APPEALS TO EXPLAIN DENIALS OF CERTIFICATES
OF APPEALABILITY.
When a habeas petitioner appeals to the Eighth Circuit without a COA, the
Eighth Circuit routinely issues unexplained orders like that in this case, stating
only “The court has carefully reviewed the original file of the district court, and the
application for a certificate of appealability is denied.” App. p. 1a. Mr. Kilgore filed
an extensive motion in the court of appeals detailing the basis for a COA. The state
did not respond. The court of appeals panel did not provide any basis for its decision
to deny a COA.
This Court has previously been informed of the disparity between circuits in
the granting of certificates of appealability in capital cases. See Buck v. Davis, brief
of petitioner, Appendix A, showing that, between 2011 and 2016, “[A] COA was
denied on all claims in 58.9% (76 out of 129) of the cases arising out of the Fifth
Circuit, while a COA was only denied in 6.3% (7 out of 111) and 0% of the cases
arising out of the Eleventh and Fourth Circuits respectively.” The data for the
Eighth Circuit, where Mr. Kilgore’s case arose, have been compiled for this court
through 2016 in the case of Greene v. Kelley, No. 16-7425, 137 S.Ct. 2973 (2017).
This data indicated that in the Eighth Circuit since 2011, 47.6% of capital cases as
to which COA was sought in the Eighth Circuit had their COAs denied. Since that
time, that court has denied at least one COA in a capital case with an unexplained
order. Barton v. Griffith, No. 18-2241 (petition for rehearing pending).
13
In non-capital cases, an April, 2012 study finds similar disparities in the
granting of COAs in non-capital cases:
Rulings on COAs varied greatly between circuits. Consider the two
circuits with the largest volume of habeas cases, for example. In the
Ninth Circuit, district judges granted more than 14 percent and the
court of appeals granted more than 13 percent of COAs sought, while
in the Fifth Circuit, every COA sought from a district judge was
denied, and only 7 percent were granted by the court of appeals.
Nancy J. King, Non-Capital Habeas Cases After Appellate Review: An
Empirical Analysis, 24 FED. SENT. RPTR 308 (2012). The study reflects that at that
time, the Eighth Circuit granted COA in 4.1% of cases where a COA was requested.
Only three circuits had a lower rate. Id. at 310, Table 3.
The Eighth Circuit's COA practice is outside the norm for courts of appeals in
another respect. Unlike most other circuits, the Eighth Circuit does not even
attempt to explain to litigants (or to this Court) why their claims are not debatable.
When denying a COA motion, the Eighth Circuit always issues a uniform three-line
summary order like that issued in Mr. Kilgore’s case. The Eighth Circuit does not
appear to have explained its reasons for denying a COA since 1997. The Sixth
Circuit, which issues reasoned decisions denying COA, explained the importance of
reasoned opinions in Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). There, the court
reversed a blanket denial of a COA, remanding to the district court for analysis of
the individual issues presented in the petition. (The exact text of the district court’s
order is not available on PACER.) Citing its earlier decision in Porterfield v. Bell,
258 F.3d 484 (6th Cir. 2001), the court held that remand was required because “The
14
district court here failed to consider each issue raised by Murphy under the
standards set forth by the Supreme Court. . . .” Murphy, 263 F.3d at 467.
Like Mr. Murphy, Mr. Kilgore has never had the benefit of a reasoned
analysis of whether his claims meet the standard for COA. The practice of issuing
unreasoned blanket denials of COA departs from that of every other court of
appeals, with the possible exception of the Seventh Circuit. 3 Under Hohn v. United
States, 524 U.S. 236 (1998), this Court has jurisdiction to review the denial of a
COA by a lower court. But when there is an unexplained denial, this Court is left
with the responsibility of reviewing the lower court decisions on the COA issue de
novo.
The great disparity between the rates at which COAs are granted in the
various circuits makes the need for clarification by the courts of appeals even more
important. The COA standard should be clear enough that any court reviewing a
habeas case will be able to apply it uniformly. That is obviously not happening. And
permitting the Eighth Circuit to completely insulate its reasoning from Supreme
Court review contributes heavily to that inequity. If this Court does not direct the
The certiorari petition in Greene v. Kelley identified the following reasoned orders
denying COA. Capital cases:Swisher v. True, 325 F.3d 225 4th Cir. 2003);
Chanthakoummane v. Stephens, 816 F.3d 62 (5th Cir. 2016); Treesh v.
Robinson,No. 12-4539, 2013 U.S. App. Lexis 3878 (6th Cir. Feb. 13, 2013); Woods v.
Buss, 234 F.Appx 409 (7th Cir. 2007); Dickens v. .Ryan, 552 F.Appx 770 (9th Ctr.
2014); Griffin v. Sec’y,787 F.3d 1086 (11th Cir. 2015). Non-capital cases: McGonagle
v. United States, 137 F. Appx 373 (1st Cir. 2005); Middleton v. Attorneys General,
396 F.3d 207 (2nd Cir. 2005); Webster v. Adm’r N.J. State Prison, No. 13-338I, 2013
U.S. App. Lexis 25719 (3d Cir. Oct.25, 2013); Pickens v. Workman,373 F. App’x 847
(10th Cir. 2010)..
3
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court of appeals to grant Mr. Kilgore a certificate of appealability, at a minimum it
should grant review and direct the Eighth Circuit to demonstrate to this Court that
it is following the requirements of § 2253.
CONCLUSION
For the foregoing reasons, the petition for writ of certiorari should be
granted.
Respectfully submitted,
/s/ Elizabeth Unger Carlyle
Carlyle Parish LLC
Elizabeth Unger Carlyle*
6320 Brookside Plaza #516
Kansas City, Missouri 64113
*Counsel of Record
ATTORNEYS FOR PETITIONER
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