Reply Brief — Ronson Kyle Bush, Petitioner v. Tommy Sharp, Interim Warden

***CAPITAL CASE***

No. 19-7455

______________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

______________________________________________________

RONSON BUSH,

Petitioner,

v.

TOMMY SHARP, Interim Warden,

Oklahoma State Penitentiary,

Respondent

______________________________________________________

On Petition for Writ of Certiorari

to the United States Court of Appeals for the Tenth Circuit

_______________________________________________________

REPLY BRIEF

IN SUPPORT OF CERTIORARI

_______________________________________________________

VIRGINIA L. GRADY

Federal Public Defender

Josh Lee

Assistant Federal Public Defender

Appellate Division

josh.lee@fd.org

Counsel of Record for Petitioner

633 17th Street, Suite 1000

Denver, Colorado 80202

Tel: (303) 294-7002

Fax: (303) 294-1192

April 24, 2020

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES .......................................................................................... ii

REPLY BRIEF IN SUPPORT OF CERTIORARI ........................................................ 1

I.

The Tenth Circuit’s Interpretation of § 2254(d)(1)’s Clearly Established

Federal Law Provision Contradicts Panetti. ..................................................... 1

II.

Musladin Engaged in Reasonableness Review and Thus Provides No

Support for House’s Threshold Bar to Reasonableness Review. ....................... 5

III.

The State Essentially Admits that the Tenth and Fifth Circuits Are

Divided................................................................................................................. 7

IV.

The Tenth Circuit’s Interpretation of § 2254(d)(1)’s Clearly Established

Federal Law Provision Also Conflicts With That of Multiple Other

Circuits. ............................................................................................................... 9

V.

The Merits of Mr. Bush’s Due Process Claim Cannot Be Adjudicated

Without Reaching the Question Presented. ..................................................... 12

CONCLUSION ............................................................................................................ 14

i

TABLE OF AUTHORITIES

PAGE

Cases

Arizona v. Evans,

514 U.S. 1 (1995) ....................................................................................................... 8

Atkins v. Virginia,

536 U.S. 304 (2002).................................................................................................... 7

Barnes v. Joyner,

751 F.3d 229 (4th Cir. 2014).................................................................................... 11

Blackmon v. Booker,

696 F.3d 536 (6th Cir. 2012).................................................................................... 10

Borden v. Bryant,

786 F. App’x 843 (10th Cir. 2019) ...................................................................... 3, 11

Bush v. Carpenter,

926 F.3d 644 (10th Cir. 2019).......................................................................... 1, 4, 13

Carey v. Musladin,

549 U.S. 70 (2006)........................................................................................ 5, 6, 7, 12

Cole v. Arkansas,

333 U.S. 196 (1948).................................................................................................... 3

Cole v. Trammell,

755 F.3d 1242 (10th Cir. 2014)................................................................................ 12

Darden v. Wainwright,

477 U.S. 168 (1986)............................................................................................ 13, 14

Davis v. Alaska,

415 U.S. 308 (1974).................................................................................................... 3

Deck v. Missouri,

544 U.S. 622 (2005).................................................................................................... 4

Ford v. Wainwright,

477 U.S. 399 (1986)............................................................................................ 5, 7, 8

Franklin v. Bradshaw,

695 F.3d 439 (6th Cir. 2012).................................................................................... 12

ii

Gilbert v. Morgan County Dist. Ct.,

589 F. App’x 902(10th Cir. 2014) . ............................................................................ 4

Harris v. Alexander,

548 F.3d 200 (2d Cir. 2008) ..................................................................................... 10

Higgins v. Addison,

395 F. App’x 516 (10th Cir. 2010) ............................................................................ 4

Hooks v. Workman,

689 F.3d 1148 (10th Cir. 2012) ....................................................................... 2, 3, 10

Hopkins v. Workman,

47 F. App’x 893 (10th Cir. 2002) ............................................................................ 11

House v. Hatch,

527 F.3d 1010 (10th Cir. 2008).................................. 1, 2, 3, 4, 5, 7, 9, 10, 11, 12, 13

Housen v. Gelb,

744 F.3d 221 (1st Cir. 2014) ...................................................................................... 9

Jamison v. Klem,

544 F.3d 266 (3d Cir. 2008) ............................................................................... 10, 11

Littlejohn v. Trammell,

704 F.3d 817 (10th Cir. 2013).............................................................................. 9, 10

Marshall v. Rodgers,

569 U.S. 58 (2013).................................................................................................... 13

Musladin v. Lamarque,

555 F.3d 830 (9th Cir. 2009).................................................................................... 12

Owens v. Duncan,

781 F.3d 360 (7th Cir. 2015).............................................................................. 11, 12

Panetti v. Quarterman,

551 U.S. 930 (2007)................................................................................ 1, 2, 4, 5, 6, 7

Parker v. Matthews,

567 U.S. 37 (2012).................................................................................................... 13

Rashad v. Walsh,

300 F.3d 27 (1st Cir. 2010) ...................................................................................... 10

Rivera v. Quarterman,

505 F.3d 349 (5th Cir. 2007).................................................................................. 7, 8

iii

Shoop v. Hill,

139 S. Ct. 504 (2019).............................................................................................. 7, 8

Strickland v. Washington,

446 U.S. 668 (1984).................................................................................................... 6

Thomas v. Goodrich,

750 F. App’x 637 (10th Cir. 2018) ........................................................................... 10

Torres v. Lytle,

461 F.3d 1303 (10th Cir. 2006)................................................................................ 11

United States v. Cronic,

466 U.S. 648 (1984).................................................................................................... 6

Whatley v. Zatecky,

833 F.3d 762 (7th Cir. 2016).............................................................................. 11, 12

White v. Woodall,

,572 U.S. 415 (2014) .................................................................................................. 6

Wiley v. Epps,

625 F.3d 199 (5th Cir. 2010).................................................................................. 7, 8

Wright v. Van Patten,

552 U.S. 120 (2008).................................................................................................... 6

Young v. Attorney Gen. for New Mexico,

534 F. App’x 707 (10th Cir. 2013) .......................................................................... 10

Statutes

28 U.S.C. § 2254(d)(1) .............................................................. 1, 2, 5, 7, 8, 9, 10, 12, 13

Other Authorities

Similar, Merriam-Webster Thesaurus, https://www.merriam-

webster.com/thesaurus/similar ................................................................................. 2

iv

REPLY BRIEF IN SUPPORT OF CERTIORARI

Mr. Bush’s first question presented asks the Court to decide whether

§ 2254(d)(1)’s “clearly established Federal law” provision authorizes reasonableness

review based on general constitutional standards articulated by this Court or, instead, forbids reasonableness review unless this Court has previously decided a case

on facts closely related or similar to those underlying the habeas petitioner’s claim.

Responding in opposition to review, the State insists that the Tenth Circuit’s habeas

jurisprudence is consistent with this Court’s, attempts to minimize the divergence

between the Tenth Circuit’s habeas jurisprudence and that of other circuits, and tries

to change the subject from the proper interpretation of § 2254(d)(1) to the merits of

Mr. Bush’s due process claim. As explained below, the State’s efforts fail.

I.

The Tenth Circuit’s Interpretation of § 2254(d)(1)’s Clearly Established

Federal Law Provision Contradicts Panetti.

Mr. Bush’s petition showed that House v. Hatch, 527 F.3d 1010 (10th Cir.

2008), and subsequent Tenth Circuit decisions that follow House contradict Panetti

v. Quarterman, 551 U.S. 930 (2007), and similar decisions from this Court. The problem for the State is that Panetti squarely held that clearly established federal law

may be found in “a general standard” articulated in a Supreme Court decision that

“involve[d] a set of facts different from” those of the petitioner’s case, 551 U.S. at 953,

whereas the Tenth Circuit persistently holds that clearly established federal law is

limited to Supreme Court decisions “where the facts [we]re at least closely-related or

similar to the case sub judice,” Bush v. Carpenter, 926 F.3d 644, 654 (10th Cir. 2019)

(quoting House, 527 F.3d at 1016). The State doesn’t so much respond to this problem

as it does stick its head in the sand. The State’s BIO never even mentions Panetti’s

statement that § 2254(d)(1) authorizes reasonableness review based on “a general

standard” even where the petitioner’s claim is predicated on “facts different from

those of the case in which the principle was announced” and, thus, makes no real

1

attempt to explain how Panetti’s language can be squared with the House doctrine.

That’s perhaps not surprising because it’s in fact impossible to square Panetti’s statement that the facts can be “different” with House’s insistence that the facts must be

“similar.” See Similar, Merriam-Webster Thesaurus, https://www.merriam-webster.com/thesaurus/similar (listing “different” as the first antonym for “similar”).

The closest that the State comes to wrestling with Panetti is to offer a baffling

distinction between what it calls “fact patterns” and “factual contexts.” The State argues that the House doctrine doesn’t require a “similar fact pattern,” only a “similar

factual context,” and that that’s consistent with Panetti because Panetti recognized

a general standard as clearly established federal law when the general standard was

announced under a different fact pattern but in a similar factual context. But the

phrases “fact pattern” and “factual context” are just synonyms of one another. Indeed,

the Tenth Circuit—per the author of House himself—recognizes the phrases as equivalent for purposes of its § 2254(d)(1) jurisprudence: it has explicitly said that what

House requires is, indeed, a similar “fact pattern.” Hooks v. Workman, 689 F.3d 1148,

1176 (10th Cir. 2012) (Holmes, J.).

What the State’s “fact pattern”/”factual context” distinction apparently means

to posit is that the Tenth Circuit’s prerequisite to reasonableness review is only a sort

of rough, or highly general degree of, factual similarity between the petitioner’s case

and the Supreme Court precedent on which he relies. If what the State means to

argue is that the Tenth Circuit only requires a situation similar in basic outline, its

characterization of Tenth Circuit case law is simply untrue. The Tenth Circuit uses

its factual similarity doctrine to deny reasonableness review of state court decisions

even when the circumstances of the petitioner’s case are roughly or generally similar

to those of the Supreme Court precedent on which he relies. Consider the following

illustrative cases:

2

• In Hooks, the Tenth Circuit held that Supreme Court cases articulating constitutional standards for the removal of venirepersons in the context of jury

selection in a capital case could not constitute clearly established federal law

for a petitioner’s claim challenging the removal of a venireperson during jury

selection in his capital case (a claim with a broadly similar factual backdrop)

because the particular reason that the venireperson was removed in Hooks was

different from the reasons for removal in the Supreme Court cases (i.e., because

of a fine-grained factual difference). Hooks, 689 F.3d at 1176.

• In Borden v. Bryant, the Tenth Circuit held that Cole v. Arkansas, 333 U.S.

196, 201 (1948), which recognized that due process requires that a charging

document “fairly inform[]” a criminal defendant of the charges, could not constitute clearly established federal law for the petitioner’s claim “that his dueprocess rights were violated because the information filed against him did not

include specific dates,” inasmuch as Cole addressed a charging document that

listed the wrong elements, whereas House required the petitioner to point to

“opinions of the United States Supreme Court” specifically addressing a charging document that included an “allegedly overbroad period of time.” 786 F.

App’x 843, 846 (10th Cir. 2019) (unpublished).

• In Gilbert v. Morgan County Dist. Ct., the Tenth Circuit held that the Confrontation Clause standards from Davis v. Alaska, 415 U.S. 308 (1974)—announced

in the context of restrictions on a defendant’s cross-examination during trial—

could not constitute clearly established federal law for a petitioner’s challenge

to restrictions on his cross-examination during trial. Even though the claims

involved a broadly similar factual scenario, the Tenth Circuit held that Davis

could not constitute clearly established law because the fact pattern was subtly

different: the proposed cross-examination in Davis was about bias, whereas the

3

proposed cross-examination in Gilbert was “general impeachment upon a prior

bad act.” 589 F. App’x 902, 907 (10th Cir. 2014) (unpublished).

• In Higgins v. Addison, the Tenth Circuit refused to review a state court’s decision for reasonableness under the due process standards articulated in Deck v.

Missouri, 544 U.S. 622 (2005), because the fact pattern of Deck was that the

state forced the defendant to wear shackles visible to the jury during trial,

whereas the fact pattern of Higgins was that the state forced the defendant to

wear an ankle monitor visible to the jury during trial. 395 F. App’x 516, 519

(10th Cir. 2010) (unpublished).

• And in Mr. Bush’s own case, the Tenth Circuit held that due process standards

articulated by this Court in the context of courtroom misconduct by prosecutors

weren’t clearly established federal law for Mr. Bush’s challenge to courtroom

misconduct by a prosecutor during trial because the fact pattern in the Supreme Court cases was not that the prosecutor purported to give “an offer of

proof of inadmissible evidence.” Bush, 926 F.3d at 656–57.

These examples illustrate that the Tenth Circuit requires similar facts to Supreme

Court precedent at a granular level (similar “fact patterns”), not just a situation that’s

similar in basic outline or broad strokes (a similar “factual context”). Accordingly, the

Tenth Circuit’s the-facts-must-be-the-same rule cannot be reconciled with Panetti’s

the-facts-can-be-different mandate based on the State’s proffered distinction between

similar fact patterns and similar factual contexts.

Regardless, even pretending that the House doctrine required similar facts

only at a high level of generality, it would still conflict with Panetti. That’s because

Panetti held that a state court decision was an unreasonable application of clearly

established federal law based on a general standard articulated in a prior case with

broadly dissimilar circumstances—i.e., based on a prior case that involved what the

BIO would characterize as a different “factual context.” As described in Mr. Bush’s

4

petition (at 13–14), Ford v. Wainwright evaluated an executive-branch proceeding

and announced its general “fair hearing” standard in the context of a due process

claim that challenged, on its face, the Governor’s across-the-board policy of excluding

all evidence offered by the prisoner. 477 U.S. 399, 412–13, 424 (1986). Panetti then

held that Ford’s fair hearing standard qualified as applicable clearly established federal law even though the Panetti Court was evaluating (i) a judicial proceeding (as

opposed to an executive-branch proceeding), (ii) a regime under which the decisionmaker was required to consider evidence offered by the condemned (as opposed

to excluding it), and (iii) an as-applied challenge to the state judge’s failure to provide

adequate notice of the effective deadline for submitting expert evidence in the petitioner’s particular case (as opposed to a facial challenge). Panetti, 551 U.S. at 951–

52. Thus, contrary to what the State claims, even if the Tenth Circuit denied reasonableness review only when the petitioner relies on a general standard articulated by

this Court in a situation dissimilar in basic outline (i.e., in a different “factual context”), Tenth Circuit law would still contradict Panetti.

In short, whether labeled as a fact-pattern-similarity prerequisite, as a factualcontext-similarity prerequisite, or with some other essentially synonymous terminology, the Tenth Circuit’s settled and persistent misinterpretation of § 2254(d)(1) irreconcilably contradicts Panetti. Certiorari should be granted to bring the Tenth Circuit

into compliance with this Court’s precedent.

II.

Musladin Engaged in Reasonableness Review and Thus Provides No Support

for House’s Threshold Bar to Reasonableness Review.

The State argues that the Tenth Circuit’s understanding of “clearly established

Federal law” is supported by Carey v. Musladin, 549 U.S. 70 (2006), and its progeny.

But the State does nothing but reassert the same misreading of Musladin that resulted in the Tenth Circuit’s error in House. The State wrongly assumes that Mus-

ladin and its progeny didn’t conduct reasonableness review when, in fact, they did.

5

And to the extent that Musladin was ambiguous on this score, the Court’s subsequent

decision in Panetti clarified it.

None of the cases cited by the State erects a threshold factual-similarity pre-

requisite to reviewing a state court decision for reasonableness, which is what the

Tenth Circuit does. Rather, as explained in Mr. Bush’s petition (at 15), Musladin

simply held that, in light of doctrinally material distinctions between the Supreme

Court precedents cited by Musladin and the claim rejected by the state court in Musladin’s case, “it cannot be said that the state court ‘unreasonabl[y] appli[ed]’” the Supreme Court precedents. Musladin, 549 U.S. at 654. Similarly, Wright v. Van Patten

recognized that Strickland v. Washington, 446 U.S. 668 (1984), did supply clearly

established federal law governing the petitioner’s claim and held only that it wasn’t

unreasonable for the state courts to decline to extend the more favorable standard

articulated in United States v. Cronic, 466 U.S. 648 (1984), to the petitioner’s case.

See Van Patten, 552 U.S. 120, 124–25 (2008). And White v. Woodall held, not that no

clearly established federal law existed, but that “the Kentucky Supreme Court’s rejection of respondent’s Fifth Amendment claim was not objectively unreasonable.”

572 U.S. 415, 427 (2014) (emphasis added). The reasonableness review conducted in

Musladin, Van Patten, and Woodall is precisely the review that the Tenth Circuit

entirely refuses to undertake absent factual similarity. Thus, while the decisions

cited by the State support the unexceptional proposition that doctrinally material

distinctions between the petitioner’s claim and Supreme Court precedent may render

a state court’s decision a reasonable one, they do not support the Tenth Circuit’s rule

that factual dissimilarity presents a threshold bar to reasonableness review.

The answer to the question of whether factual dissimilarity presents a threshold bar to conducting reasonableness review is found in Panetti, not in Musladin, Van

Patten, or Woodall. As described above, Panetti squarely holds that factual similarity

6

between Supreme Court precedent and the case at hand is not a prerequisite to reasonableness review, and because the cases cited by the State undertook a reasonableness review, they are not to the contrary. Indeed, to any extent that Musladin might

have been read to erect a factual similarity threshold requirement, the Court’s decision in Panetti—decided after Musladin—clarified that no such requirement exists.

Certiorari should be granted to correct the Tenth Circuit’s entrenched and persistent

misreading of Musladin and its progeny.

III.

The State Essentially Admits that the Tenth and Fifth Circuits Are Divided.

The State all but acknowledges that the Tenth and Fifth Circuits are at odds

over § 2254(d)(1)’s clearly established federal law provision. See BIO at 20–22. As

detailed in Mr. Bush’s petition (at 19), the Fifth Circuit has held that Ford’s “fair

hearing” standard, developed in the distinct context of executive-branch insanity proceedings, constitutes clearly established federal law applicable to a petitioner’s contention that he was denied procedural due process in state court on his claim that he

suffers from an intellectual disability under Atkins v. Virginia, 536 U.S. 304 (2002).

See Wiley v. Epps, 625 F.3d 199, 213 (5th Cir. 2010); Rivera v. Quarterman, 505 F.3d

349, 357–58 (5th Cir. 2007). The State cannot muster any argument—because there

is none—that the Fifth Circuit’s holdings in Wiley and Rivera are reconcilable with

the Tenth Circuit’s settled position that “federal courts may no longer extract clearly

established law from the general legal principles developed in factually distinct contexts.” House, 527 F.3d at 1016 n.5.

Instead, the State posits that (a) the conflict might sort itself out and (b) more

percolation is needed. The State is wrong on both counts.

The State’s half-hearted suggestion that the Fifth Circuit might reconsider its

interpretation of § 2254(d)(1) in light of Shoop v. Hill, 139 S. Ct. 504 (2019), is meritless. Shoop was a summary per curiam decision that broke no new ground. Shoop

rebuked the Sixth Circuit for treating as clearly established federal law a Supreme

7

Court precedent that “was not handed down until long after the state-court decisions”

it reviewed and therefore vacated and remanded for the Sixth Circuit to evaluate the

state court decision “based solely on the holdings of this Court that were clearly established at the relevant time.” Shoop, 139 S. Ct. at 505. That has nothing to do with

the Fifth Circuit’s holding that the fair hearing standard from Ford—a precedent that

predated by several decades the state court decisions under review in Wiley and Ri-

vera—qualified as clearly established federal law in the distinct context of state court

intellectual disability proceedings. Nothing in Shoop could cause the Fifth Circuit to

revisit its position that § 2254(d)(1) does permit federal habeas courts to extract

clearly established law from general legal principles developed in factually distinct

contexts.

The State’s suggestion that more percolation would be beneficial is equally unavailing. Section 2254(d)(1)’s clearly established federal law provision is more than

two decades old and has been addressed in literally thousands of court of appeals

decisions. The Tenth and Fifth Circuit decisions that the State effectively admits are

irreconcilable are themselves more than a decade old and have been applied repeatedly in subsequent cases in their respective circuits. This is not a situation in which

“frontier legal problems are presented,” such that further “‘percolation’ in” the lower

courts “may yield a better informed” decision by this Court. BIO at 21 (quoting Ari-

zona v. Evans, 514 U.S. 1, 24 n.1 (1995) (Ginsburg, J., dissenting)). It is, instead, a

situation in which there is already a robust body of lower court case law to illuminate

the Court’s decisionmaking process. Relatedly, the State’s erroneous assertion that

the Fifth Circuit’s position is an “outlier[]” (BIO at 21), would not suggest that certiorari should be denied even if that were true. To call a circuit’s position an “outlier”

necessarily admits that many other decisions have addressed the same point—in

which case no further percolation is needed.

8

This Court should grant certiorari because entrenched and repeatedly applied

Tenth and Fifth Circuit decisions are in irreconcilable conflict.

IV.

The Tenth Circuit’s Interpretation of § 2254(d)(1)’s Clearly Established

Federal Law Provision Also Conflicts With That of Multiple Other Circuits.

The State denies that the Tenth Circuit is in conflict with circuits other than

the Fifth, but its denial rests on a mischaracterization of the relevant case law. In

fact, it’s the Tenth Circuit’s position, not the Fifth’s, that’s the outlier.

Regarding the First Circuit, the State erroneously asserts that both Housen v.

Gelb, 744 F.3d 221 (1st Cir. 2014), and Littlejohn v. Trammell, 704 F.3d 817 (10th

Cir. 2013), actually left open the question of whether there was clearly established

federal law against which to review for reasonableness a state court’s rejection of a

petitioner’s claim that it violates due process to prosecute accomplices on materially

inconsistent theories of guilt. In fact, both cases squarely decided the question and

reached opposing results. In Housen, the First Circuit held that it was “clearly established law” applicable to the petitioner’s case that “a criminal defendant has a due

process right to a fair trial,” and Housen thus “gaug[ed] the reasonableness of the

[state court’s] application of clearly established due process principles to the petitioner’s prosecutorial inconsistency claim.” 744 F.3d at 227–29. In Littlejohn, by contrast, the Tenth Circuit explicitly refused to review the reasonableness of the state

court’s decision because it held that “Littlejohn’s inconsistent-theories argument fails

at the threshold because it is not based on clearly established federal law.” 704 F.3d

at 852–54 (citing House). The disparate holdings in Housen and Littlejohn are driven

by the fact that the First Circuit recognizes that a “broad” principle from this Court’s

cases, such as the right to a fair trial, can constitute clearly established federal law

for “a kaleidoscopic array of fact patterns,” Rashad v. Walsh, 300 F.3d 27, 35 (1st Cir.

9

2010), whereas the Tenth Circuit improperly erects as a prerequisite to reasonableness review that the petitioner point to “Supreme Court holdings where the facts are

at least closely related or similar,” Littlejohn, 704 F.3d at 849 (quoting House).

Turning to the Second Circuit, the State claims that House doesn’t conflict with

that circuit’s holding in Harris v. Alexander, 548 F.3d 200 (2d Cir. 2008), that there

was clearly established federal law to apply to a defendant’s claim that he was denied

a theory-of-defense instruction. This is so, the State says, because Thomas v.

Goodrich, 750 F. App’x 637 (10th Cir. 2018) (unpublished), held that a state court’s

rejection of a petitioner’s claim that he was improperly denied a theory-of-defense

instruction was not unreasonable. But the decision in Thomas was unpublished and

non-precedential; it was decided at the certificate-of-appealability stage based on a

pro se brief, without an answer brief from the State; and—crucially—it didn’t mention the House doctrine at all, much less actually decide whether there was clearly

established federal law to apply under the House standard. Cf. Hooks, 689 F.3d at

1117 (denying habeas relief by “assum[ing] without deciding” that there was clearly

established law to apply). Thus, Thomas can’t be read as anything approaching an

authoritative application of the House doctrine, which if applied would have resulted

in the denial of Thomas’s claim for lack of clearly established federal law. 1

As for the Third Circuit, the State makes no real effort to reconcile that court’s

holding in Jamison v. Klem that a general standard can support relief under

§ 2254(d)(1) for claims based on “seemingly limitless combinations of acts and omissions,” 544 F.3d 266, 271–74 (3d Cir. 2008), with House’s rule that a general standard

can support relief only if it was articulated in a case with facts “closely-related or

1 The same problem applies to the State’s reliance on Young v. Attorney Gen. for New

Mexico, 534 F. App’x 707 (10th Cir. 2013) (unpublished), as an analogue to Blackmon

v. Booker, 696 F.3d 536 (6th Cir. 2012), which reviewed a defendant’s challenge to

gang affiliation evidence. Young simply didn’t address the House doctrine.

10

similar to” the petitioner’s. Despite the State’s generalized assertion (at 15–16) that

there’s no conflict between House and cases like Jamison, it’s apparent that Jamison

would have come out differently in the Tenth Circuit. In Jamison, the Third Circuit

held that a state court unreasonably applied the clearly established knowing-andvoluntary standard for guilty pleas when it rejected the defendant’s complaint that

he was not advised of an applicable mandatory minimum sentence. Jamison, 544 F.3d

at 271–74. The Third Circuit so held even though this Court had never suggested that

the failure to advise a defendant of an applicable mandatory minimum sentence

would violate the knowing-and-voluntary standard. We know that the petitioner in

Jamison would have been denied relief in the Tenth Circuit because the Tenth Circuit’s application of House in Borden v. Bryant (summarized in Section I, infra) resulted in the denial of relief in a closely analogous situation.

Regarding the Fourth Circuit, the State doesn’t address the holding in Barnes

v. Joyner that a general standard can constitute clearly established federal law as to

“myriad factual circumstances,” 751 F.3d 229, 246 (4th Cir. 2014), and the State

doesn’t explain how the grant of habeas relief in Barnes could be consistent with the

House doctrine. In fact, the petitioner in Barnes would have been denied relief in the

Tenth Circuit because no Supreme Court case has addressed facts similar to the

Barnes petitioner’s claim that his constitutional rights were violated by a juror seeking spiritual guidance from her pastor during death penalty deliberations.

The State argues that the Tenth Circuit’s decisions in Torres v. Lytle, 461 F.3d

1303 (10th Cir. 2006), and Hopkins v. Workman, 47 F. App’x 893 (10th Cir. 2002)

(unpublished), show that the House doctrine is compatible with the Seventh Circuit’s

decisions in Owens v. Duncan, 781 F.3d 360 (7th Cir. 2015), and Whatley v. Zatecky,

833 F.3d 762 (7th Cir. 2016). But even assuming that the former cases were comparable to the latter (they are not), the State’s argument would still be a nonstarter

because Torres and Hopkins were decided before House, and House made explicit

11

that its factual similarity doctrine was a break with the past and based on a

(mis)reading of this Court’s then-recent Musladin decision. See House, 527 F.3d at

1015–18. Under current and now well-settled Tenth Circuit law, Owens and Whatley

would have come out differently because this Court has not decided a case on facts

closely related or similar to those presented in Owens and Whatley.

Finally, the State fails to meaningfully grapple with the Ninth Circuit’s holding that, under § 2254(d)(1), a “broad rule” may qualify as clearly established federal

law that “must be applied” in “many different factual situations.” Musladin v. La-

marque, 555 F.3d 830, 839 (9th Cir. 2009). That’s plainly inconsistent with House’s

specification that broad rules only qualify as clearly established federal law for cases

with closely-related or similar facts, and the State’s hand-waving about some supposed difference between fact patterns and factual contexts doesn’t show otherwise.

To be fair to the State, it’s true that the Tenth Circuit’s distinctive House doctrine doesn’t produce a different outcome in every case. Compare Franklin v. Brad-

shaw, 695 F.3d 439, 456–57 (6th Cir. 2012), with Cole v. Trammell, 755 F.3d 1242,

1165 (10th Cir. 2014). But it is a unique legal standard that demonstrably does call

for different outcomes in many cases. And an intractable, well-developed circuit split

in a frequently litigated area—one that produces different outcomes in many cases—

is a circuit split that necessitates this Court’s intervention.

V.

The Merits of Mr. Bush’s Due Process Claim Cannot Be Adjudicated Without

Reaching the Question Presented.

Lastly, the State is wrong to suggest that Mr. Bush’s due process claim could

be denied, without reaching the question presented, on the ground that the state

court decision in his case wasn’t unreasonable. Whether any clearly established federal law exists, and what the content of clearly established federal law is, necessarily

must be addressed before a court can even begin to determine whether a state court

ruling unreasonably applied clearly established federal law. See Marshall v. Rodgers,

12

569 U.S. 58, 62 (2013) (“The starting point for cases subject to § 2254(d)(1) is to identify the ‘clearly established Federal law’ . . . that governs the habeas petitioner’s

claims.”) (emphasis added). Thus, if certiorari is granted, the Court would be required

to decide whether the Tenth Circuit is right that clearly established federal law consists only of “Supreme Court holdings in cases where the facts are at least closelyrelated or similar to the case sub judice,” Bush, 926 F.3d at 657 (quoting House). And

assuming that it rejects the House doctrine, the Court could simply remand Mr.

Bush’s case for the Tenth Circuit to assess in the first instance whether the state

court’s denial of Mr. Bush’s claim was an unreasonable application of the clearly established due process standards that govern it.

In any event, Mr. Bush’s due process claim warrants habeas relief. This Court

has already recognized that it is “clearly established Federal law” that “a prosecutor’s

improper comments” violate a defendant’s constitutional rights if they “‘so infected

the trial with unfairness as to make the resulting conviction a denial of due process.’”

Parker v. Matthews, 567 U.S. 37, 45 (2012) (quoting Darden v. Wainwright, 477 U.S.

168, 181 (1986)). Here, the prosecutor recited to the decisionmaker a litany of inadmissible but damning allegations that utterly undermined Mr. Bush’s defense.

Among other things with no support in admissible evidence, the prosecutor told the

decisionmaker that Mr. Bush planned the killing for a week or more, taunted and

tortured the victim, was planning an escape and would kill anyone who got in his

way, had no remorse, and laughed about killing the decedent. That these improper

comments nominally took the form of a legally pointless “offer of proof,” rather than

the form of a closing argument or a question posed to a witness, is completely immaterial and in no way negates Darden’s status as clearly established federal law applicable to Mr. Bush’s claim. Further, as a dissenting state court judge recognized, the

presumption that a decisionmaker disregards inadmissible evidence cannot possibly

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control here because the prosecutor’s representations were so extensive and prejudicial that it’s implausible to believe that the decisionmaker could ignore them. Instead,

because the inadmissible information that the prosecutor improperly revealed to the

decisionmaker was the most damaging thing presented during the entire sentencing

trial, the prosecutor’s improper comments infected the entire trial with unfairness to

such a degree as to render the state court’s refusal to recognize the constitutional

violation an unreasonable application of Darden.

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,

VIRGINIA L. GRADY

Federal Public Defender

_________________________

Josh Lee

Assistant Federal Public Defender

josh.lee@fd.org

Counsel of Record for Petitioner

633 17th Street, Suite 1000

Denver, Colorado 80202

Tel: (303) 294-7002

Fax: (303) 294-11922

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