Reply Brief — Phillip Wayne Tomlin, Petitioner v. Tony Patterson, Warden

No. 19-7127

IN THE SUPREME COURT OF THE UNITED STATES

PHILLIP WAYNE TOMLIN,

Petitioner,

v.

TONY PATTERSON, WARDEN,

HOLMAN CORRECTIONAL FACILITY,

Respondent.

On Petition for Writ of Certiorari to the United States Court of Appeals for

the Eleventh Circuit

REPLY BRIEF OF PETITIONER

BERNARD E. HARCOURT

Counsel of Record

COLUMBIA LAW SCHOOL

435 West 116th Street

New York, New York 10027

Phone: (212) 854-1997

E-mail: beh2139@columbia.edu

May 13, 2020

QUESTIONS PRESENTED

1.

Phillip Tomlin’s sentence of life imprisonment without parole

reflects a breakdown of the Certificate of Appealability (“COA”) review

process and raises a pressing matter of national importance: whether

non-capital habeas corpus petitioners in the Eleventh Circuit are being

treated so fundamentally differently than similarly situated prisoners

in other circuits that they are effectively being denied due process, fair

punishment, and their right of access to the courts. Specifically, did the

Eleventh Circuit impose an improper, too demanding, and unduly

burdensome COA standard that contravenes this Court’s precedents,

deepens a circuit split in the COA standard, and is deeply arbitrary,

when it denied Mr. Tomlin a COA on a legal question that it had

explicitly left open a few years earlier and that involves a hair-splitting

difference from a 2011 decision of the Eleventh Circuit in Magwood v.

Warden, 664 F.3d 1340 (11th Cir. 2011) holding that the judicial

rewritings of the 1975 Alabama Death Penalty Act violated the fair

notice provision of the Due Process Clause?

2.

Whether a statute that requires the jury to “fix the punishment

at death” upon conviction of a non-death-eligible crime, for which the

accused could never be sentenced to death, would violate the Due

Process Clause?

i

TABLE OF CONTENTS

QUESTIONS PRESENTED………………………………………………………………..

i

TABLE OF CONTENTS……………………………………………………………………. ii

TABLE OF AUTHORITIES……………………………………………………………….. iii

REPLY BRIEF OF PETITIONER………………………………………………………...

1

I.

REASONABLE JURISTS COULD SURELY DEBATE WHETHER THE CONDUCT

CHARGED IN THE INDICTMENT FELL WITHIN THE PURVIEW OF THE 1975

ALABAMA DEATH PENALTY ACT……………………………………………. 5

II.

MR. TOMLIN’S PETITION FOR WRIT OF CERTIORARI DOES NOT FALL PREY

TO THE STATE OF ALABAMA’S CATCH-22…………………………………. 6

III.

THE STUDY ON COAS IS THE GOLD-STANDARD OF SOCIAL SCIENCE: OPEN

DATA, OPEN METHODS, OPEN REVIEW……............................................ 9

IV.

A NEW STUDY TITLED “COAS AS RUBBER STAMPS” FURTHER SUPPORTS

REVIEW IN THIS CASE………………………………………………………. 12

V.

THIS COURT’S RECENT RULING IN MCKINNEY V. ARIZONA IS FURTHER

REASON TO GRANT CERTIORARI…………………………………………… 14

CONCLUSION……………………………………………………………………………… 15

REPLY APPENDIX

APPENDIX R-A: Trial Record, Volume No. 5, State of Alabama v. Phillip Wayne

Tomlin, Circuit Court No. CC77-001396, jury verdict of death

returned on March 25, 1978, pages 988-989………………. 1-RA

APPENDIX R-B: Docket Entry, Volume No. 1, State of Alabama v. Phillip Wayne

Tomlin, Circuit Court No. CC77-001396, “Jury and Verdict of

Guilty and Jury Fixed Punishment at Death, Saturday, March

25, 1978,” page 33……………………………………………… 5-RA

APPENDIX R-C: “Certificates of Appealability as Rubber Stamps,” SSRN No.

3576026 (April 14, 2020), by Luis Angel Valle, Columbia Law

School, available at https://ssrn.com/abstract=3576026

10-RA

ii

TABLE OF AUTHORITIES

CASES

Barefoot v. Estelle, 463 U.S. 880 (1983) .......................................................................9

Beck v. State, 396 So. 2d 645 (Ala. 1981) ...........................................................4, 6, 15

Buck v. Davis, 137 S. Ct. 759 (2017) ........................................................................8, 9

Ex parte Hays, 518 So. 2d 768 (Ala. 1986) ................................................................... 4

Ex parte Kyzer, 399 So.2d 330 (Ala. 1981) .........................................................4, 6, 15

Ex parte Stephens, 982 So. 2d 1148 (Ala. 2006) .....................................................4, 15

Ex parte Tomlin, 516 So.2d 797 (Ala. 1987) ................................................................ 3

Hurst v. Florida, 577 U.S.

(2016) ........................................................................... 14

Magwood v. Culliver, 481 F.Supp.2d 1262 (M.D. Ala. 2007) ...................................... 5

Magwood v. Culliver, 555 F.3d 968 (11th Cir. 2009) ................................................... 5

Magwood v. Patterson, 561 U.S. 320 (2010) ................................................................. 5

Magwood v. Warden, 664 F.3d 1340 (11th Cir. 2011)............................................6, 15

McKinney v. Arizona, 140 S.Ct. 702 (2020) .........................................................14, 15

Miller-El v. Cockrell, 537 U.S. 322 (2003) ...............................................................8, 9

Ring v. Arizona, 536 U.S. 584 (2002) ......................................................................... 14

Tomlin v. State, 591 So.2d 550 (Ala.Cr.App, 1991) ..................................................... 4

STATUTES

28 U.S.C. § 2254...................................................................................................8, 9, 11

Ala. Code § 13-11-1 et seq....................................................................................passim

iii

REPLY BRIEF OF PETITIONER

Through a sleight of hand, the state of Alabama conceals from the Court the

single most important fact about Alabama’s 1975 Death Penalty Act: the mandatory

jury verdict of death for any conviction under that statute. See Appendix J, at 701

[145a], § 13-11-2(a), 1975 Alabama Death Penalty Act (“If the jury finds the

Defendant guilty, they shall fix the punishment at death”).

Yet the jury’s mandatory death verdict is the crux of Mr. Tomlin’s due process

claim: Mr. Tomlin did not have fair notice that the alleged crime was subject to the

1975 Alabama Death Penalty Act because no jury in his case constitutionally could

“fix the punishment at death” given that Mr. Tomlin is not death-eligible. As the state

of Alabama concedes, “Because his conduct did not satisfy any of the aggravating

factors in Section 6, Tomlin cannot constitutionally be sentenced to death.” See Brief

in Opposition (“BIO”) at p. 1.

It is elementary due process that no juror in this country could be required to

sentence a man to death who could never be sentenced to death. As a result, Mr.

Tomlin was never supposed to be subject to the 1975 Act, but instead to the ordinary

murder statute in effect in Alabama at the time, which carried a maximum sentence

of life imprisonment with the possibility of parole. Mr. Tomlin did not have fair notice

that he could be sentenced to life imprisonment without parole (“LWOP”) because the

conduct alleged did not fit under the 1975 Act, and the 1975 Act was the only

statutory provision in Alabama that carried a possible sentence of LWOP.

1

By vanishing the mandatory jury verdict of death and only revealing that the

1975 Act “carried a punishment of either life without parole or death” (BIO at pp. i,

1)—while concealing that this applied only to the judge’s sentence, but not to the jury

sentencing—the state of Alabama misdirects this Court. In the spirit of the Court’s

Rule 15.2, the state of Alabama repeatedly misstates the facts:

● “Tomlin unquestionably committed capital murder under the 1975 Act.” (BIO

at p. 1)

● “And no one here contests that Tomlin was properly convicted of an offense

enumerated in Section 2.” (BIO at p. 3)

● “[N]o one contests that his crime was one of the aggravated felonies listed in

Section 2.” (BIO at p. 19)

Not so. On the contrary, whether the crime fit under the 1975 Act is precisely

what is at issue in this case. The state of Alabama misrepresents the legal issue. Mr.

Tomlin was not properly convicted of an offense enumerated in the 1975 Act and could

not have been convicted of an offense enumerated in the 1975 Act, because then his

jury would have been required by law to impose a sentence of death on a man who

could not be sentenced to death. Mr. Tomlin thus had no fair notice that his alleged

conduct fell under the 1975 Act. In effect, an alternative way to pose the issue

properly before the Court, if certiorari were granted, is as follows:

Whether a statute that requires the jury to “fix the punishment at

death” upon conviction of a non-death-eligible crime, for which the

accused could never be sentenced to death, would violate the Due

Process Clause?

The state of Alabama responds “no” to this question in its Brief in Opposition. It

argues that under the 1975 Act, a juror could be placed in the position of having to

sentence a man to death who cannot be sentenced to death. But that defies

2

elementary due process.

And that is in fact precisely what happened here. Under the fair notice

statute—the statute as written that gave Mr. Tomlin fair warning at the time of the

alleged offense in January 1977—Mr. Tomlin’s jury, on March 25, 1978, convicted

him and “fixed his punishment at death,” as it was required to by the 1975 Act:

THE COURT: All right, Mr. McPeek, you have been elected as

foreman of the jury, is that correct, sir?

FOREMAN: Yes, sir.

THE COURT: Has the jury reached a unanimous verdict?

FOREMAN: Yes, sir.

THE COURT: I want the Defendant to stand and face the jury.

Now, Mr. McPeek, I want you to stand and read the unanimous

verdict of the jury into the record.

FOREMAN: We, the jury, find the Defendant guilty of murder

as charged in the indictment and fix his punishment at death.

See Appendix R-A, p. 1 (1978 Tomlin Trial Transcript at p. 988) (emphasis added).

In other words, in a case for which the state of Alabama concedes Mr. Tomlin

could never receive a death sentence, the jury is mandated to—and did and would

have to in the future—return a death sentence. See also Appendix R-B, p. 1 (Docket

Entry for Jury Fixing Punishment at Death); Ex parte Tomlin, 516 So.2d 797, 797

(Ala. 1987) (“The jury fixed Tomlin’s punishment at death.”).

The state of Alabama, again with a sleight of hand, conceals from the Court

the jury’s real verdict of death. Respondent only tells the Court that “[t]he unanimous

jury recommended life without parole.” (BIO at p. 7) But that recommendation of

3

LWOP only occurred at the retrial in 19901 after the Alabama Supreme Court rewrote

the 1975 Act to allow for a jury sentence of LWOP and an upward judicial override in

Beck v. State, 396 So. 2d 645 (Ala. 1981), Ex parte Kyzer, 399 So.2d 330 (Ala. 1981),

and Ex parte Hays, 518 So. 2d 768 (Ala. 1986)—which were later repudiated as

“unexpected and indefensible” in Ex parte Stephens, 982 So. 2d 1148 (Ala. 2006).

In point of fact, Mr. Tomlin’s first jury did return, as it had to, a mandatory

death verdict, landing Mr. Tomlin on Alabama’s Death Row for a crime the state

concedes is not death-eligible.2 The same process would be required at any trial or

retrial pursuant to the 1975 Act under the state’s reading: the jury first would be

required to “fix the punishment at death” (for a non-death-eligible defendant) and

then, second, be told by the judge “just joking” because the defendant could never be

sentenced to death. This non sequitur demonstrates (1) that the 1975 Alabama Death

Penalty Act did not apply to Mr. Tomlin, but even more importantly (2) that Mr.

Tomlin did not have fair warning his alleged conduct fell under the 1975 Act.

Therein lies the crux of the due process violation in Mr. Tomlin’s case. In its

Brief in Opposition, Respondent fundamentally misconstrues Mr. Tomlin’s due

process fair warning challenge. For this reason and several new points raised in the

Brief in Opposition, Mr. Tomlin respectfully submits this reply.

1 See Tomlin v. State, 591 So.2d 550, 552 (Ala.Cr.App, 1991) (at a “subsequent trial, which occurred in

1990 … the jury … recommended a sentence of life without the possibility of parole.”).

2 As a combined result of his first mandatory jury verdict of death in 1978 and three subsequent

judicial overrides of a unanimous jury recommendation of LWOP, Mr. Tomlin spent a total of twentyseven (27) years on Alabama’s Death Row for a crime that the state concedes is not death-eligible.

4

I.

REASONABLE JURISTS COULD SURELY DEBATE WHETHER THE

CONDUCT CHARGED IN THE INDICTMENT FELL WITHIN THE

PURVIEW OF THE 1975 ALABAMA DEATH PENALTY ACT

To dispel any confusion and state as clearly as possible Mr. Tomlin’s due

process claim: Mr. Tomlin did not have fair warning—and still does not have fair

notice—that the alleged conduct fell within the parameters of the 1975 Alabama Death

Penalty Act (the only statute that allowed for an LWOP sentence), because that statute

requires a mandatory jury verdict of death and Mr. Tomlin is not death-eligible.

Respondent further misleads this Court by arguing that Billy Joe Magwood’s

sentence of LWOP justifies Mr. Tomlin’s LWOP sentence. (BIO at p. 1) The fact is,

Mr. Magwood never challenged his LWOP sentence. That another similarly situated

individual did not raise a similar due process challenge has no bearing on this case.

Originally, the Honorable Judge Myron Thompson of the Middle District of

Alabama granted Mr. Magwood habeas relief from his death sentence on both fairwarning and ineffective assistance of counsel grounds. Magwood v. Culliver, 481

F.Supp.2d 1262 (M.D. Ala. 2007). The Eleventh Circuit reversed Judge Thompson’s

ruling, holding that Mr. Magwood’s challenge to his death sentence was an

unreviewable second or successive petition. Magwood v. Culliver, 555 F.3d 968 (11th

Cir. 2009). This Court granted certiorari and reversed the judgment of the Eleventh

Circuit in Magwood v. Patterson, 561 U.S. 320 (2010), declaring that the state of

Alabama was proposing rules that would “close [this Court’s] doors to a class of

habeas petitioners seeking review without any clear indication that such was

Congress’ intent.” Id. at 341. On remand, the Eleventh Circuit granted Mr. Magwood

5

relief from his death sentence on fair notice grounds, concluding that the Alabama

Supreme Court’s rewriting of the 1975 Alabama Death Penalty Act in Beck and Kyzer

was an “unexpected and indefensible construction of narrow and precise statutory

language,” and thus the application of Kyzer to Mr. Magwood’s case violated the fairwarning requirement of the Due Process Clause. Magwood v. Warden, Alabama

Department of Corrections, 664 F.3d 1340, 1349 (11th Cir. 2011).

Subsequently, Mr. Magwood was resentenced to LWOP by the Circuit Court of

Coffee County. See Magwood v. Warden, No. 2:97-cv-629-MHT, Doc. 162

(“Respondents’ Notice of Filing”) (July 31, 2012). However, neither in his previous

federal habeas petition, nor since his resentencing to LWOP, has Mr. Magwood ever

raised a claim that his sentence of LWOP, too, violates due process.3 That Mr.

Magwood never challenged his sentence of LWOP should not reflect in any way on

whether Mr. Tomlin is entitled to relief; if anything, it underscores that there is an

open and compelling legal question that needs to be addressed, one that the Eleventh

Circuit in Magwood expressly and deliberately left open. Id. at 1348 (“we express no

opinion in the context of non-capital cases.”).

II.

MR. TOMLIN’S PETITION FOR WRIT OF CERTIORARI DOES NOT

FALL PREY TO THE STATE OF ALABAMA’S CATCH-22

The state of Alabama tries to trap Mr. Tomlin in a Catch-22: as a substantive

matter, the state contends, he must show that no reasonable jurist could have decided

3 Mr. Magwood is the only other Alabama prisoner (to counsel’s knowledge) who would be affected by

a favorable ruling in Mr. Tomlin’s case; but that has no bearing on Mr. Tomlin’s due process challenge.

6

the merits as the last state court did; but at the same time, as a procedural matter

for purposes of a COA, the petitioner must show that reasonable jurists could debate

the merits of the claim. Respondent leverages this apparent tension into a Catch-22,

arguing throughout its brief that: “Relief for Tomlin under AEDPA would be

appropriate only if there could be ‘no fairminded disagreement on the question’ of the

state court’s application of clearly established Supreme Court precedent. Yet Tomlin

admits that the issue before the state court was a ‘debatable legal question,’ Pet.4,

that courts have left ‘open,’ Pet.i.” (BIO at p. i)

Mr. Tomlin, however, does not fall prey to this Catch-22 for two reasons. First,

Mr. Tomlin has consistently argued that he is entitled to de novo review under the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See Appendix E,

pp. 106-112 (Petitioner’s Motion for Reconsideration of the Denial of a Certificate of

Appealability, Tomlin v. Patterson, No. 19-10494, filed June 17, 2019).4 Respondent

contends that the “state courts rejected the [Due Process] claim.” (BIO at p. i, 2) That

is inaccurate. The last state court did not properly address the merits of the due

process challenge, but rather affirmed the denial of relief for a purported reason that

predated Mr. Tomlin’s due process claim, namely that the Alabama Supreme Court

4 Incidentally, Mr. Magwood also received de novo review at the Eleventh Circuit. The state of Alabama

is correct. (BIO at p. i n1) Insofar as anything that Petitioner wrote in his petition suggests otherwise,

he stands corrected. Petitioner was trying to emphasize that Mr. Magwood obtained relief under

AEDPA and not on direct appeal from a state court conviction or on appeal from a federal conviction.

That is noteworthy, because AEDPA substantially restricted federal habeas corpus. Petitioner was

trying to emphasize that Mr. Magwood prevailed under AEDPA review, which increases the

debatability of Mr. Tomlin’s due process challenge for purposes of a COA.

7

ordered a sentence of LWOP. Therefore Mr. Tomlin is entitled to de novo review. See

Appendix E, pp. 106-112. Under that standard, Mr. Tomlin should prevail on the

merits of his challenge. This is an open question and thus debatable, even if Mr.

Tomlin has the better argument. This eliminates any possible Catch-22.

The second reason Mr. Tomlin does not fall prey to Respondent’s Catch-22 is

that the two distinct standards set forth in AEDPA must be understood sequentially.

Throughout the BIO, the state confuses and conflates § 2254(d)(1), which pertains to

the merits of a petitioner’s habeas claims, with § 2253(c)(2), which pertains to the

issuance of a COA, inverting the statutory order of operations set forth in AEDPA.

Buck v. Davis, 137 S. Ct. 759, 774 (2017). This Court has consistently held that the

two inquiries are not coextensive. See, e.g., Buck, 137 S. Ct. at 773; Miller-El v.

Cockrell, 537 U.S. 322, 348 (2003).

At this stage, Mr. Tomlin is challenging the Eleventh Circuit’s denial of a COA,

not the merits of his habeas claim. Therefore, “the only question is whether [Mr.

Tomlin] has shown that jurists of reason could disagree with the district court’s

resolution” of his claim. Buck, 137 S. Ct. at 773 (emphasis added). And, as this Court

has emphasized, the district court’s resolution of Mr. Tomlin’s claim “can be debatable

even though every jurist of reason might agree, after the COA has been granted and

the case has received full consideration, that petitioner will not prevail.” Miller-El, 537

U.S. at 338 (emphasis added). Mr. Tomlin has unquestionably met that burden.

Rather than engaging strictly with Mr. Tomlin’s contention that the district

8

court’s resolution of his claim was debatable, the state answers a question that was

neither raised by Mr. Tomlin, nor at issue at this juncture of the case—namely, that

Mr. Tomlin’s claim fails on the merits. In Buck, this Court stated “[t]hat a prisoner

has failed to make the ultimate showing that his claim is meritorious does not

logically mean he failed to make a preliminary showing that his claim was debatable.”

137 S. Ct. 774. Indeed, “when a COA is sought, the whole premise is that the prisoner

‘has already failed in that endeavor.’” Buck, 137 S. Ct. at 774 (quoting Barefoot v.

Estelle, 463 U.S. 880, 893, n.4 (1983)). Thus, the State’s contention that Mr. Tomlin

“is likely to fail on the merits” is of no moment at the COA stage. See BIO, p. 16.

At bottom, the state in its BIO—and the Eleventh Circuit in denying a COA—

“inverts the statutory order of operations” set forth in AEDPA and thereby “places

too heavy a burden on [Mr. Tomlin] at the COA stage.” Buck, 137 S. Ct. at 774.

III.

THE STUDY ON COAs IS THE GOLD-STANDARD OF SOCIAL

SCIENCE: OPEN DATA, OPEN METHODS, OPEN REVIEW

The state of Alabama questions the evidence in the study Certificates of

Appealability in Habeas Cases in the United States Court of Appeals for the Eleventh

Circuit: A Study, by Julia Udell of Columbia University, writing that it is nothing

more than a “college student’s unpublished research paper,” “quasi-social science,”

or, even more, “half-baked social science.” (BIO at p. 4, 27) The state argues that “the

paper has not been peer-reviewed or tested in any recognized way.” (BIO at p. 27)

Quite to the contrary, this study represents the gold-standard of social science

today: it is open data, open method, open access, and open review. The study openly

9

shares its database (Westlaw’s docket database), its method, search terms, and

queries ((c.o.a. (cert! /2 appeal!) /7 deny! denied denial grant!) /20 2018 2019), and all

of its data with full case citations. It improves on the research conducted both in the

Buck petition for writ of certiorari and by Nancy King in “Non-Capital Habeas Cases

after Appellate Review: An Empirical Analysis.” It is all readily available on an open

access publication venue, the Social Science Research Network (“SSRN”), here:

https://ssrn.com/abstract=3506320. The study on SSRN contains an appendix with

all of the names and docket numbers of all of the cases reviewed in the study. And it

is entirely open to peer-review and assessment. Any researcher, any lawyer at the

Alabama Attorney General’s Office, and any member of this Court can replicate, test,

and review the data, methods, and findings.

This quality of open research is the cutting-edge of social science today.

Contrary to Respondent’s suggestion, peer-review does not guarantee validity. In fact,

it is likely that most published peer-reviewed studies are false, in large part because

the data are rarely open access.5 For this reason, leading scientists increasingly are

moving toward open access, open data, open review standards, which are now

becoming the highest benchmark for scientific research. See B. A. Nosek, et al.,

“Promoting an open research culture,” Science, vol. 348,6242 (2015): 1422-5, available

at https://doi.org/10.1126/science.aab2374.6

5 See John P. A. Ioannidis, “Why most published research findings are false,” PLoS medicine, vol. 2,8

(2005): e124, available at https://doi.org/10.1371/journal.pmed.0020124.

See also M. R. Munafò, et al., “A manifesto for reproducible science,” Nature Human Behavior 1,

article 0021 (2017), available at https://www.nature.com/articles/s41562-016-0021; John P. A.

6

10

Rather than lazily impugn the research, the state of Alabama could have

reviewed the data, methods, findings, and conclusions of the study, which are all

available and open access. Failing to have done so, Respondent has raised no valid

objection to the data and findings.

The state of Alabama also disregards the gross disparities between judges on

the Eleventh Circuit, writing that “data on a few dozen judicial decisions per judge

does not evince different standards of review, particularly where all the judges are

purporting to apply the same standard.” BIO at p. 30 (emphasis added). The key word

here is “purporting.” The study demonstrates that judges with similar caseloads

grant wildly different numbers of COAs. The judge who denied Mr. Tomlin’s COA,

Judge Charles R. Wilson (Judge 02), granted only 2.68% of COA orders, or 3 of 112,

while Judge Adalberto Jordan (Judge 06) and Judge Beverly B. Martin (Judge 09)

granted 25.81% (24 of 93) and 20.51% (16 of 78) respectively. Judge Wilson ruled on

19 more COAs than did Judge Jordan and 34 more COAs than did Judge Martin, and

yet his total number of COAs granted was much lower.7 These numbers indicate that

while the judges might “purport” to apply the same COA standard, they are not

actually doing so in practice.

IV.

A NEW STUDY TITLED “CERTIFICATES OF APPEALABILITY AS

RUBBER STAMPS” FURTHER SUPPORTS REVIEW IN THIS CASE.

Ioannidis, “How to Make More Published Research True,” PLoS Med 11(10): e1001747 (2014),

available at https://doi.org/10.1371/journal.pmed.1001747. One example of cutting-edge open access,

open data, open review efforts is the PEERS Press at https://peers.press.

7 The individual judge grant rates can be identified using the initials of judges listed in the appendix

to the study published on SSRN.

11

The claim that some judges on the Eleventh Circuit are failing to apply the

appropriate standard of review is further supported by the length and content of the

COA orders. A new study, Certificates of Appealability as Rubber Stamps, conducted

by Luis Angel Valle of Columbia Law School, supports Mr. Tomlin’s claim that COAs

are being denied capriciously.8 This study as well is open data, open method, open

access, and open review. Any member of this Court or of the Alabama Attorney

General’s Office can test and replicate its findings.

Reviewing all Eleventh Circuit COA orders available on Westlaw between

January 2018 and September 2019, the study finds that many orders denying COAs

are short in length and limited in content: 43% of the 258 COA denials reviewed are

fewer than three paragraphs long. See COAs as Rubber Stamps, at p. 26. Separating

out these orders by judge, one can ascertain that 100% of the 25 single-judge COA

orders issued by Mr. Tomlin’s judge, Charles R. Wilson, are fewer than three

paragraphs long. These short orders are troubling as they conceal the reasoning a

judge might have for denying a COA.

The study reviews the content of COA orders in addition to their length. It

finds most orders in the Eleventh Circuit cite few cases, noting that “70% of the orders

cite only Slack, 18% cite the statutory language alone, and the remaining 3% solely

cite Miller-El.” Id. It further explains that most of the orders “typically consist of a

citation to § 2253, the Slack/Miller-El standard of review, [and] a brief procedural

8 Luis Angel Valle, Certificates of Appealability as Rubber Stamps (Apr. 14, 2020) [hereinafter, COAs

as Rubber Stamps], https://ssrn.com/abstract=3576026.

12

history.” Id. These short and limited orders raise a curtain that prevents us from

determining whether a judge properly applied the COA standard of review.

When judges, albeit infrequently, do write longer orders that enable us to peek

behind this curtain, they often overreach—considering the merits of a case rather

than merely evaluating the debatability of a district court’s determination. See, e.g.,

id. at 30 n.182 (collecting cases demonstrating this overreach). Thus it seems there

are two trends in Eleventh Circuit COA orders: the first is short orders that contain

almost no reasoning (like 97.32% of Judge Wilson’s orders, including that of Mr.

Tomlin), and the second is the interpretation of §§ 2254(d) and (e) as incorrectly

calling for merits analysis at the COA stage. Id. at 27. Taken together, we can infer

that many of the short orders must also be applying an improper standard.

Finally, this study compares the COA grant rate in capital cases in the Fifth

and Eleventh Circuits. The analysis suggests that grant rates in both circuits have

decreased markedly since 2016 when counsel in Buck filed their petition for

certiorari, which included a study measuring capital COA grant rates. Grant rates

for capital cases “dropp[ed] from 41% to 13.33% in the Fifth Circuit and from 93.7%

to 58.3% in the Eleventh.” Id. at 25. The study notes that the circuit split identified

in Buck—which this Court denounced in its ruling for Mr. Buck—persists despite the

extreme decrease in the number of COAs granted in the Eleventh Circuit. Id. at 25.

The decline indicates the Eleventh Circuit is imposing an improper and excessively

burdensome standard of review to all COAs.

13

V.

THIS COURT’S RECENT RULING IN McKINNEY v. ARIZONA IS

FURTHER REASON TO GRANT CERTIORARI

When Mr. Tomlin filed his petition on December 27, 2019, McKinney v.

Arizona, 140 S.Ct. 702 (2020), had yet to be decided. One of the questions presented

in the McKinney petition pertinently asked “whether a court must apply the law as

it exists today, rather than as it existed at the time a defendant’s conviction became

final.” Petition for a Writ of Certiorari, McKinney v. Arizona, No. 18-1109, filed

February 21, 2019. Respondent now argues that this Court’s recent resolution and its

opinion in McKinney “has no bearing on [Mr. Tomlin’s] case.” (BIO at p.12) Quite to

the contrary, however, this Court’s opinion in McKinney demonstrates that Mr.

Tomlin was improperly resentenced to LWOP in 2004, making it clear that

reasonable jurists could debate the merits of his due process challenge.

In McKinney, this Court found that new laws in effect at the time of Mr.

McKinney’s resentencing did not apply retroactively to his case because his case was

on collateral review at the time. Id. at 708. The Court ruled that Ring v. Arizona, 536

U.S. 584 (2002), and Hurst v. Florida, 577 U.S. __ (2016) did not apply to Mr.

McKinney’s case at the time of his resentencing. The Court’s ruling in McKinney,

though, does not dissolve the question raised in Mr. Tomlin’s petition, since neither

the interpretation of the 1975 Act in effect at the time of Mr. Tomlin’s alleged offense

in 1977, nor a correct interpretation today following Ex parte Stephens and Magwood,

would result in an LWOP sentence.

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To the contrary, under McKinney, a court must sentence Mr. Tomlin either

under the 1975 Act as it existed in 1977 before the judicial rewritings of the 1975 Act

in Ex parte Kyzer and Beck v. State (both decided on March 6, 1981), or as it exists

today, after Ex parte Stephens (decided on July 28, 2006). It would violate due process

for a court to sentence Mr. Tomlin based on a fleeting moment in the middle—a brief

interlude during which he was unconstitutionally death-eligible from March 6, 1981

to July 28, 2006. Thus, based on McKinney, Mr. Tomlin is entitled to relief; however,

this Court need not reach the merits of Mr. Tomlin’s case. This Court need only find

that reasonable jurists could disagree on the claim at issue in Mr. Tomlin’s case, and

the decision in McKinney makes clear that they can.

CONCLUSION

For the foregoing reasons, Mr. Phillip Tomlin prays that this Court grant a

writ of certiorari to the United States Court of Appeals for the Eleventh Circuit.

Respectfully submitted,

May 13, 2020

BERNARD E. HARCOURT

Counsel of Record

COLUMBIA LAW SCHOOL

435 West 116th St.

New York, New York 10027

(212) 854-1997

beh2139@columbia.edu

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