Petition for Writ of Certiorari — Stafon Edward Thompson, Petitioner v. Minnesota

No. 20-

InN THE

SUPREME COURT OF THE UNITED STATES

STAFON THOMPSON,

Petitioner,

Vv.

STATE OF MINNESOTA,

Respondent.

On Petition for a Writ of Certiorari to the

Minnesota Supreme Court

PETITION FOR A WRIT OF CERTIORARI

Rachel Moran

Counsel of Record

University of St. Thomas School of Law

Legal Services Clinic

30 South 10th Street Suite 100

Minneapolis, MN 55403

(651) 962-4810

rmoran@stthomas.edu

Attorney for Petitioner

QUESTION PRESENTED

Whether the limited habeas authority of federal courts over state prisoners includes

the authority to dictate how state courts must remedy federal law violations.

ul

TABLE OF CONTENTS

QUBS TION PRES EIN TE Dicemssmans s acxns suimsmaaam 5645404 Marans pia 14948 «has ERNORRE LEE AT Alenia 1

TABLE OF AUTHORITIES swe sicressenvowewnsnssies es wesumamsens (05540505 MadbbiRndde 41004 + Riaennaen iv

PETITION FOR A WRIT OF CERTIORARL.....sccscscosssstssssssveversenssetsenscetenesenaces 1

OPINIONS BELOW vcsssnnsecssvs ca vwaciass iss caranawsnans £0554 850Si0ecandanenn eres ssnmmeamene oes nes ave 1

J) URIS DIC TIO Nevswer sacs vassccsnannnen sia 0s sramieans 6405) 5 8aaeeadinciseTi04 Tene memmmnonme tee 24 emacrmeenn 1

STATUTORY PROVISIONS INVOLVED... cecee cee nee ene ceeeneaeeneeneeeeeeeeenenas 1

INTRO DUC TIO Mosssicisacis isis sasamnas at 043 saiinddindiind deka kia theriecene sete ne see ernammen neon eeeperes 2

DS TATIRIMIEINT 5 + simninnaes 00a avs saaatensiasne 04 + ieitiimsdn tie 810 dthehnedsimeee oaen ee e9 sacemmen 94 ees aeacemnen ee 4

REASONS FOR GRANTING THE PETITION... ccceeeecseeteeeeeneeeeeeeeeeesea ean eas 8

THIS CASE PRESENTS AN IMPORTANT QUESTION OF FEDERAL LAW

TAT TEES COLTER BELOW IUD BT TEs «050 sscreneon vas 110 musunmmsinns nom #98 nme seme 8 a § eemeD 8

A. This Court has never settled whether federal habeas courts can dictate

how state courts must remedy federal law violations against

SCALE PLISONETS.......cccecceccec cece een eee eee eeeeeneeeeeeeeeeeeeeaseeeaeeeteeeeeteeeeueeuaneness 8

1. This Court has two divergent strands of decades-old

precedent on the scope of federal habeas remedies for

State PVISONELS.........ccccec ese eceeseeeeeeeeceeaeeeseseeseseeeeeeeeeeeesaseees 9

11. This Court has not addressed its remedies precedent

POSt-AEDPA.... cece cee ece cee nee eee nee enenseneaeeenee teense eeeaeesaeaes 13

B. Federal circuit courts are deeply divided about whether they can

order specific habeas remedies for federal law violations against

StACE PLISONETS.......cccec eee ece sere ee eee eee ene eeneneeseeseneeeeseeaeeeeeseeeteeeegeeeeeteesae eas 14

1. The Third, Fourth, Fifth, Seventh, Eighth, Ninth, and

Eleventh Circuits rely on Fay and its progeny for the

principle that federal habeas courts cannot order state courts

to impose specific FEMEMIES..........cceceseceeececeeeeseeeeseeeeueeeseewens 15

ll. The Second, Sixth, Ninth, and Tenth Circuits have adopted

il

a more expansive reading of federal habeas courts’ authority

to remedy federal law violations against

StAtE PLISONETS........cceccceseeee eee eeeneeeeetee ene ceeeeseeeeneseeeegenaeees 18

C. State courts are confused about whether and to what extent federal

courts can dictate specific habeas remedies for state courts to follow........... 20

i. At least five states reject federal courts’ authority to

impose specific remedies for states to follow...........ccsecec eee ee ee 20

uu. At least three states believe themselves bound to follow

specific remedies that federal habeas courts impose............... 23

D. The Minnesota Supreme Court in this case misunderstood the limited

function of federal habeas review.........scccscccceeeeeeseeeeeseneeeeeesteteeteneeeeneeees 24

CONCLUSION... ccc cece cec ene eeenee ee eee ee ee see ease ee seeeeaeeeeeeeeeeeeteeasetaeeeenesenenenss 27

Appendix A (Minnesota Supreme Court Opinion, filed April 29, 2020) ......00...... la

Appendix B (Resentencing Order, Hennepin County District Court, filed March

VAG kaA00 AS) rr 15a

Appendix C (Federal District Court’s Order Adopting Report And

Recommendation, filed December 14, 2016)...........cccccccecsseecceecceccccecceceeeeceeeeecceeeeeeees ,26a

Appendix D (Excerpt from Mr. Thompson’s Minnesota Supreme Court Brief)....... 29a

Appendix E (Excerpt from Mr. Thompson’s Reply To State’s February 15

Additional Briefing, Hennepin County District Court)..0.......0cccccccccccccseceeeseeeeeeeees 37a

Appendix F (Joint Meet And Confer Statement) .0.........0.ccceeees ccceeeseseceeeeessseeeeeeees 40a

1V

TABLE OF AUTHORITIES

CASES

Allen v. Duckworth, 6 F.3d 458 (7th Cir. 1998)........c cece ccc cceceeeeeeeeneeneeeeeeeeteneeaes 17

Barry v. Brower, 864 F.2d 294 (8d Cir. 1988)..........ccccececsee eee eeeeeeeeeeeeueaeeeenecs 15, 26

Billiot v. Puckett, 185 F.3d.311 (th Cir. 1998), .. cssccaissssscnsosanancen neenncces veiccsiion 17, 22

Brewer v. Williams, 4380 U.S. 887 (1977)......cccccccecccc cee eeeeeeeeeeeeeeeeseseeeeeeaneesaeens 11

Cabana v. Bullock, 474. U.S, B76 (1988) wis iccccsssssasennseaisines swnwanseweciiriaas erasure 8, 12

Carafas ©. Lavalleé, 391 US. 234 (Q9GB)iesccscrniss ss insaannece ses os sveawnewweens vivite san passim

Chambers v. State, 831 N.W.2d 311 (Minn. 2018), overruled by

Jackson v. State, 883 N.W.2d 272 (Minn. 2016).........ccccecece ene eeeeeeeeeeeeeeeeeece 5

Chaney v. Brown, 699 P.2d 159 (Okla. Crim. App. 1985).........ccccecceeeseaee eee eeeeeeees 23

Cody v. Henderson, 936 F.2d 715 (2d Cir.1991)...... ccc ce cccc ee eceeneeeeeeeeeeneeeneeeas 2,19

Coleman v. Thompson, 501 U.S. 722 (1991)... ...cccccccsc cee eeeseseeeeeeeeeeennenenesnenees 12, 13

Douglas v. Jacquez, 626 F.8d 501 (Oth Cir. 2010)...... cece ccecee eee seeereeeeeneeeaee snes 18

Dunn v. Colleran, 247 F.3d 450 (8d Cir. 2001)..........cccce ccc ecee eens eeeeeeeeneeesaeenenenss 16

Fay v. Nota, 372 U.S. 391 (1968)... cece cce scence eee ee eee e eee eee ene eee tne see enesnesne enone passim

Flowers v. State, 907 N.W.2d 901 (Minn. 2018)..........ccccccceecseee ene eneeeeneeeeeees 5, 6, 27

Gentry v. Deuth, 456 F.3d 687 (6th Cir. 2006)..........cccecccceeeseeeee eee eeeeeeaeeteeeeees 2,19

Glean uv. Dallman, 686 F.2d 418 (6th Cir. WIS 2 rss scsuss ss issesnsanereces ener xaemenwas.ceen 19, 27

Gouveia vu. Espinda, 926 F.3d 1102. (9th Cir, ZOU) wsascsss sesvnevwe sav so snas vevsnnees 2, 18, 26

Hannon v. Maschner, 981 F.2d 1142 (10th Cir.1992)......... cece eee eeeeeenee ens 2, 20, 27

Hardcastle v. Horn, 368 F.3d 246 (8d Cir. 2004)...........cccececeseeenseceeeuenseeeeeenetee ses 22,

Henderson v. Frank, 155 F.8d 159 (8d Cir. 1998)......... ccc ccc ec cee cee cee eee tee eee tae enes 2,15

Herrera v. Collins, 506 U.S. 390 (1998)... ....cccceccccecceeceeccceveceevsueveeueveeusuueuneseneess 13

Hilton v. Braunskill, 481 U.S. 770 (1987)... ....cccceccccesceecveeveueseeveueseeuecuevennens 12, 20

Holley v. Yarborough, 568 F.3d 1091 (9th Cir. 2009).........ccccccccceceeee eee eeeveeueaenens 20

Jackson v. State, 883 N.W.2d 272 (Minn. 2016)........cccccccccceceeeeseeseeeeeeeeneeue sense 5, 7

Kernan v. Cuero, 138 S. Ct. 4 (2017)... ccccccceccceceeeeseeeeeeeeeeeteseveseveeeeuevenneeeuewens 14

Magwood v. Smith, 791 F.2d 1438 (11th Cir.1986)...... cc ccecceseeeeeee eee eeeeeeees 18, 26

McCleskey v. Zant, 499 U.S. 467 (1991)... cc cccccececececeeeeeeeeeeeeesseeesseseneneueuensusueuens 9

Miller v. Alabama, 567 U.S. 460 (2012).......c.ccccceescceceessueseueeceveveeeseueueeeeneeneens 5, 6

Montgomery v. Louisiana, 1386 S. Ct. 718 (2016)... ... ccc ccc cee cee essen ence eee eeeeeeene sees: 5, 6

Nail v. State, 869 S.W.2d 705 (1994)... . cece cee cee nee eee eeeaeeeee eee eeasueeeense sea eaessetaes 21

People ex rel. Madigan v. Snyder, 208 Ill. 2d 457 (2004).........cccccceeeeeeeeeeeees 2, 21, 26

People v. Black, 116 Cal. App. 4th 108 (Cal. App. 2004)...........cccccceeeeeeet esses eee 21, 22

People v. Frazier, 733 N.W.2d 713 (Mich. 2007).........cccccccscsecesseecuseueeeeeveuenss 23, 27

People v. Wood, 434 P.3d 6638 (Colo. App. 2016), vacated on unrelated grounds

by People v. Wood, 433 P.3d 585 (Colo. 2019).......c.ccccececeseeeeeeseeeeveneeuenseaes 22

Peyton v. Rowe, 391 U.S. 54 (1968)......... ccc ccccec cee eneeeeeeeeseeeeeeteeeeseeeeeeteesueuse 11, 24

Preiser v. Rodriguez, 411 U.S. 475 (1978).......cccccccecec ce ceeeeeeeeneeeeeessenseuevenenes 11,19

Rose v. Lee, 252 F.3d 676 (4th Cir. 2001).........cccccccecseceesseeceuveusueeeeseeeuneaenes 16, 22

Smith v. Lucas, 9 F.8d 359 (5th Cir. 1998)... ... cece ccc cece ec eee eeeeeeeeeeseeeeeeaeeesueeensnees 17

Smith v. Wolff, 506 F.2d 556 (8th Cir. 1974)... ccc cece cee eeceeeeeeeeeseeueeteeseneeueunes 17

State v. Alt, 895 N.W.2d 237 (Minn. 2017).......c.cccccccececeveceeeeeeeeeceeeeeeeseueeueusesseeas 6

State v. Hochstein, 682 N.W.2d 273 (Neb. 2001).........cccccccscsesceseeeeceeeeeneens 2, 28, 24

vl

State v. Roman Nose, 667 N.W.2d 386 (Minn. 2008).........ccccccceccee cee ces succes suseuscess 25

State v. Thompson, 788 N.W.2d 485 (Minn. 2010)........ccccccecccseseeeceeesenseeeeeneene sees 4

State v. Thompson, 942 N.W.2d 350 (Minn. 2020)..........ccccccceeeeeesseseeseveneeers passim

Thompson v. Roy, 1386 S. Ct. 1875 (2016)... cc cccecececenesee eee eeeeeeeeeeteseeseneeetaeeness 5, 6

Thompson v. Roy, 793 F.3d 843 (8th Cir. 2015)...... ccc ccccceeceseeeseeeeeeeeuseueeeveeeeenss 5

Thompson v. Roy, 641 Fed. Appx. 681 (8th Cir. 2016)...........ccccccc scenes ses ene vee eeeneness 6

United States v. Campbell, 168 F.3d 268 (6th Cir. 1999)......... ccc ccccce ees ceeeeeeee eee ees 25

United States v. Klump, 57 F.8d 801 (9th Cir. 1995)......... cece csc eseeeesee eee eneeeeeeenes 25

United States v. Lopez, 514 U.S. 549 (1995)... ... ccc ceccceeeeeeeeee testes eeeeeeeseeeseesuevens p

United States v. Malki, 718 F.3d 178 (2d Cir. 2018).......ccccccc ccc cee csc enecueeuecuseeeeees 25

United States v. McFalls, 675 F.3d 599 (6th Cir. 2012).........ccccccseceeceeeseeveeveuneeses 25

United States v. Walker, 918 F.3d 1134 (10th Cir. 2019)..........ccccc eee cesees eee eeeceeeees 25

United States v. Young, 66 F.3d 830 (7th Cir. 1995)......... cece cec cece eceeeeeeeeeueneneses 25

Wainwright v. Sykes, 433 U.S. 72 (1977)... .cc cece ccesecceeeeeeeeeeseeeeeeeeaeeeeeueaeeetunnrass 9

Wilkinson v. Dotson, 544 U.S. 74 (2005)........cccccceeseseeeseeeeeeeeseeuenseeveneeevenecs 13, 14

Winston v. Pearson, 688 F.3d 489 (4th Cir. 2012)........cccc ccc cceseeeeeeeeeeeeeeeeeueenees 2,16

Woodfox v. Cain, 789 F.3d 565 (Sth Cir. 2015)... 0... ccc ccc cee esse ee eeeeeaeeeeenees 2, 16, 17

STATUTES

2S U S.C. §§ 2241 Ob 86 Gisscewssces ceca vacwanen cine cevanwsena suinsscaanwadinn stivisvbnd@ nina Feed}. bmewanenes 8

28 TSG. § BOAR. ncssisssssnsnaane is sacmewnnd 640495 0000 204i 9 oRaaTRincdine die DbaiTaddin Fie Td sammnne passim

2B UGC. § BOBS iss. ccaaesieiiie tees saiindin 604) sdeetnne caseeeenaenennaen vee semeemenn sees se enmnen passim

AZ U.S.C. § 1988... cece nee ence ence een ee ee eee een ed sabe tee eee seen ee een eenennenee es 11, 13, 19

Vil

OTHER AUTHORITIES

Brian R. Means, FEDERAL HABEAS MANUAL (2020)........ccccccceceeeeeeseeeueetereeeeeetenss 26

The Federalist No. 45 (C. Rossiter ed. 1961)..........ccccceccec cee ceeeeeeeeteecseneeeeetaeeneneess 9

PETITION FOR A WRIT OF CERTIORARI

Stafon Thompson respectfully petitions for a writ of certiorari to review the

judgment of the Minnesota Supreme Court in this case.

OPINIONS BELOW

The Minnesota Supreme Court’s opinion affirming Mr. Thompson’s consecutive life

sentences for crimes committed as a juvenile is reported at State v. Thompson, 942

N.W.2d 350 (Minn. 2020). Pet. App. la-14a. The Hennepin County District Court’s

order imposing consecutive life sentences upon remand from the United States

District Court for the District of Minnesota is not reported. Pet. App. 15a-25a. The

United States District Court for the District of Minnesota’s order granting Mr.

Thompson’s habeas petition in part, modifying Mr. Thompson’s sentences, and

remanding to the Hennepin County District Court for resentencing is not reported.

Id. at 26a-28a.

JURISDICTION

The Minnesota Supreme Court entered judgment on April 29, 2020.! Mr. Thompson

invokes this Court’s jurisdiction under 28 U.S.C. § 1257(a).

STATUTORY PROVISIONS INVOLVED

Section 2243 of Title 28 of the United States Code provides in pertinent part:

KE *

The court shall summarily hear and determine the facts, and dispose of

the matter as law and justice require.

1 The Minnesota Supreme Court’s opinion is dated April 27, 2020, but the opinion

was released on April 29, 2020. The difference is not relevant to this petition.

Section 2254 of Title 28 of the United States Code provides in pertinent part:

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district

court shall entertain an application for a writ of habeas corpus in

behalf of a person in custody pursuant to the judgment of a State

court only on the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States.

KK *

INTRODUCTION

This case squarely presents a question that federal circuit courts, state

courts, and even this Court have long struggled to answer: whether the power of a

federal court to dispose of habeas petitions “as law and justice requires’ authorizes

federal courts to dictate how state courts must remedy federal law violations

suffered by state prisoners. See 28 U.S.C. § 2243. Federal and state courts are

dramatically divided on this point. Some follow the guidance of Fay v. Noia, 372

U.S. 391, 430-31 (1963), to conclude that federal courts may grant a habeas petition

based on a federal law violation but must leave the specific remedy to the state

court. See, e.g., Henderson v. Frank, 155 F.3d 159 (8d Cir. 1998); Winston v.

Pearson, 683 F.3d 489 (4th Cir. 2012); Woodfox v. Cain, 789 F.3d 565 (5th Cir.

2015); Gouveia v. Espinda, 926 F.3d 1102 (9th Cir. 2019); People ex rel. Madigan v.

Snyder, 208 Ill. 2d 457 (2004). Others, relying on Carafas v. Lavallee, 391 U.S. 234

(1968), interpret the habeas remedy power far more expansively. E.g., Cody v.

Henderson, 936 F.2d 715 (2d Cir.1991); Gentry v. Deuth, 456 F.3d 687 (6th Cir.

2006); Hannon v. Maschner, 981 F.2d 1142 (10th Cir.1992); State v. Hochstein, 632

N.W.2d 278 (Neb. 2001). Although thousands of state prisoners file federal habeas

petitions each year, this Court has not addressed the question of what remedies 28

U.S.C. § 2243 authorizes for many years and has never resolved the seemingly

dichotomous authority of Fay and Carafas.

In this case Mr. Thompson filed a federal habeas petition arguing that his

two consecutive mandatory life without parole sentences for crimes committed as a

child violated the Eighth Amendment. Pet. App. 4a-5a. Rather than grant the

habeas petition and permit the state court to craft new sentences, the federal court

modified the sentences by vacating the “without possibility of release” provisions,

denied the petition in all other respects, and remanded to the state trial court for

resentencing. Id. at 26a-28a. The state court, believing itself bound by the specific

dictates of the federal court’s order, denied Mr. Thompson a resentencing hearing

and instead imposed two consecutive life sentences. Id. at 21a-24a.

On appeal the Minnesota Supreme Court adopted perhaps the most

expansive interpretation of federal habeas authority yet, concluding that the federal

habeas court operated effectively as an appellate court with authority to issue a

“limited remand” that the state court must follow “strictly.” State v. Thompson, 942

N.W.2d 350, 353-54 (Minn. 2020). Pet. App. 9a-10a. Mr. Thompson preserved this

issue by arguing to both the state trial court and state supreme court that the

federal habeas authority is limited and does not empower federal courts to modify

state judgments or dictate specific remedies for federal law violations against state

prisoners. Pet. App. 3la-29a.?

2 In addition to briefing this issue, Mr. Thompson also presented oral argument

addressing the authority of federal habeas courts over state prisoners. The

STATEMENT

Stafon Thompson was seventeen years old in 2008 when the State of

Minnesota charged him and his co-defendant, sixteen-year-old Brian Flowers, with

two counts of first degree murder for the deaths of Katricia Daniels and Robert

Shepard. Jd. at 16a. Both children were convicted of both offenses after separate

trials. Id. At the time, each charge carried a mandatory life without parole (LWOP?)

sentence. See Minn. Stat. § 609.106, subd. 2(1) (2008); Pet. App. 3a. The Hennepin

County District Court sentenced Mr. Thompson immediately after his trial. Pet.

App. 3a-4a. Because the sentences were mandatory, the court did not order the

presentence investigation that ordinarily happens before felony sentencings. Jd. at

3a. Mr. Thompson’s counsel did not present any mitigating evidence, witnesses, or

arguments on Mr. Thompson’s behalf, nor did either party present any argument

regarding the propriety of consecutive sentences. Jd. at 4a, 1lla-12a. The court

sentenced Mr. Thompson to two consecutive LWOP terms. Id. at 4a.

In his direct appeal to the Minnesota Supreme Court, Mr. Thompson filed a

pro se brief arguing that his mandatory LWOP sentences violated the Eighth

Amendment. State v. Thompson, 788 N.W.2d 485, 496 (Minn. 2010). The Minnesota

Supreme Court perfunctorily rejected that claim. Id.

Minnesota Supreme Court’s audio and visual recording equipment malfunctioned

on the date of the November 6, 2019 oral argument, and no recording of that

argument is available.

3 Minnesota refers to such sentences as “life without release,” or LWOR. For

purposes of this petition Mr. Thompson uses the more recognized LWOP

abbreviation. The terms carry the same meaning.

Two years after the Minnesota Supreme Court rejected Mr. Thompson’s

argument that his mandatory LWOP sentences violated the Eighth Amendment,

this Court held in Miller v. Alabama that mandatory LWOP sentences for children

under age 18 violate the Eighth Amendment. 567 U.S. 460, 479 (2012). One year

later, the Minnesota Supreme Court concluded that this Court’s holding in Miller

did not apply retroactively. Chambers v. State, 831 N.W.2d 311 (Minn. 2013),

overruled by Jackson v. State, 883 N.W.2d 272 (Minn. 2016).

With no relief available in state court, Mr. Thompson filed in 2014 a timely

federal habeas petition under 28 U.S.C. § 2254, arguing that his LWOP sentences

were unconstitutional under Miller. Pet. App. 4a-5a. The United States District

Court for the District of Minnesota denied the habeas petition on grounds that

Miller did not apply retroactively. Id. at 17a-18a.4 Mr. Thompson appealed this

decision to the Eighth Circuit, which also held that Miller did not apply

retroactively. Thompson v. Roy, 793 F.3d 848 (8th Cir. 2015).

Mr. Thompson then filed a petition for writ of certiorari to this Court.

Thompson v. Roy, 186 S. Ct. 1875 (2016). While the petition was pending, this Court

held in Montgomery v. Louisiana that Miller applies retroactively to all children

sentenced to mandatory terms of LWOP. Montgomery v. Louisiana, 136 S. Ct. 718,

736-37 (2016). This Court then vacated the Eighth Circuit’s decision, and Mr.

4A different division of the same court granted a nearly identical petition filed by

Mr. Thompson’s similarly situated co-defendant, Mr. Flowers. Pet. App. 22a. The

Minnesota Supreme Court has ordered the state to hold a resentencing hearing for

Mr. Flowers. Flowers v. State, 907 N.W.2d 901 (Minn. 2018).

Thompson’s habeas petition was remanded to the federal district court. Thompson

v. Roy, 1386 S. Ct. 13875 (2016); Thompson v. Roy, 641 Fed. Appx. 681 (8th Cir. 2016).

On remand, the parties to the case—the Hennepin County Attorney’s Office

and then-counsel for Mr. Thompson—drafted a joint “meet and confer” order,

agreeing that the federal district court should grant Mr. Thompson’s habeas

petition, vacate his unconstitutional sentences, and remand for a resentencing

hearing consistent with Miller and Montgomery. Pet. App. 41a. The federal district

court agreed that Mr. Thompson’s sentences were unconstitutional. Rather than

erant the habeas writ in full, however, the court issued the following order:

1. The “without possibility of release” provision of Petitioner’s life

sentences be VACATED in accordance with Miller v. Alabama,

1382 S. Ct. 2455, 2460 (2012), and Montgomery v. Louisiana, 136

S. Ct. 718, 725 (2016);

2. Petitioner’s case be REMANDED to the Hennepin County District

Court for resentencing; and

3. The petition be denied in all other respects.

Id. at 27a-28a. The federal district court did not issue a certificate of appealability

and Mr. Thompson’s counsel did not request one.

The parties initially understood the federal court’s habeas order to permit a

full resentencing hearing, and delayed that hearing for more than two years while

waiting for the Minnesota Supreme Court to address two other cases involving

children sentenced to LWOP. Id. at 20a.5 After those cases were decided, the

5 These children eventually received opportunities for resentencing hearings.

Flowers v. State, 907 N.W.2d 901 (Minn. 2018); State v. Ali, 895 N.W.2d 237 (Minn.

2017). Mr. Thompson is the only prisoner in Minnesota who was sentenced to

consecutive mandatory LWOP terms as a child and denied a resentencing hearing.

Hennepin County District Court set aside three days for Mr. Thompson to receive a

resentencing hearing complete with witnesses and evidence. Jd. at 20a, 3la. In

early 2019, a few months before the scheduled resentencing hearing and more than

twenty-five months after the federal district court issued its habeas order, the state

court sua sponte ordered the parties to brief the issue of whether the federal district

court’s order mandated that the state court impose two consecutive life sentences.

Id. at 20a. In Mr. Thompson’s response brief he argued, inter alia, that the federal

court's order could not be construed as mandating consecutive life sentences

because federal habeas power does not include the authority to tell state courts

specifically how to correct constitutional violations. Jd. at 38a-39a.

The state court concluded that, because the federal district court’s order

vacated only the “without possibility of release” portion of Mr. Thompson’s

sentences, the habeas order operated as a limited remand requiring the state court

to reimpose consecutive life sentences. Id. at 22a-24a. The trial court canceled Mr.

Thompson’s resentencing hearing and imposed two consecutive sentences of life in

prison with the possibility of release after 30 years on each count, for a total of at

least 60 years. Id. at 24a.®

Mr. Thompson appealed this decision to the Minnesota Supreme Court,

arguing that federal habeas authority over state prisoners is limited and does not

6 The sentences of life with the possibility of release after thirty years stem from the

Minnesota Supreme Court’s decision in Jackson v. State, 883 N.W.2d 272 (Minn.

2016). In Jackson, the Minnesota Supreme Court decided that the appropriate post-

Montgomery remedy for children who had received unconstitutional mandatory

LWOP sentences was to provide them an opportunity to request release after 30

years. Id. at 281-82.

include the power to modify or dictate the terms of a state prisoner’s sentence. Id. at

3la-36a. The Minnesota Supreme Court affirmed, concluding that the federal

habeas court’s “limited remand” bound the state court to impose two consecutive life

sentences. State v. Thompson, 942 N.W.2d 350, 353-54 (2020). Pet. App. 7a-10a. A

three-justice concurrence noted that Mr. Thompson’s sentences, imposed without

any sentencing hearing or opportunity to present mitigating evidence, may violate

the Eighth Amendment. Thompson, 942 N.W.2d at 355-56 (Chutich, Thissen, &

Anderson, JJ., concurring). Pet. App. 1la-14a.

Mr. Thompson will not be eligible for release until he is at least 77 years old.

REASONS FOR GRANTING THE PETITION

THIS CASE PRESENTS AN IMPORTANT QUESTION OF FEDERAL LAW

THAT THIS COURT SHOULD SETTLE

A. This Court has never settled whether federal habeas courts can

dictate how state courts must remedy federal law violations against

state prisoners

The federal habeas corpus statutes provide a limited vehicle for federal court

review of prisoners’ claims that their incarceration violates federal law. See 28

U.S.C. §§ 2241 et seq. Section 2243 authorizes federal courts to dispose of habeas

corpus petitions “as law and justice require.” 28 U.S.C. § 2243. However, when the

habeas petitioner is incarcerated pursuant to a state conviction, the federal habeas

court must balance its authority to remedy the matter as “law and justice

require[s]” with the “first principles” of federalism: that the powers of the federal

government are few and defined, while those which remain to the states are

“numerous and indefinite.” See Cabana v. Bullock, 474 U.S. 376, 391-92 (1986);

United States v. Lopez, 514 U.S. 549, 552 (1995) (citing The Federalist No. 45, pp.

292-93 (C. Rossiter ed. 1961)). The question of whether a federal habeas court

oversteps its authority when it orders a state court to impose a specific remedy for a

federal law violation is one this Court has never settled.

i. This Court has two divergent strands of decades-old

precedent on the scope of federal habeas remedies for

state prisoners

Fay v. Noia, decided more than fifty years ago, was at the time this Court’s

seminal decision addressing the boundaries of federal habeas authority over state

prisoners. See 372 U.S. 391, 394 (1963). The Court in Fay concluded that, while

federal habeas authority does extend to state prisoners, that authority has

limitations. Id. at 399-426.7 On review of a habeas petition filed by a state prisoner,

the federal court’s power to remedy a state’s federal law violation is limited to

agreeing or denying that the petitioner is wrongly confined. Jd. at 480-31. If the

federal court agrees that the petitioner is wrongly confined, it may order the State

to either correct the illegal condition or release the petitioner. Jd. (noting that

federal habeas courts have the right to “enforce the right of personal liberty [over

state prisoners]; when that right is denied and a person confined, the federal court

7 Fay’s holding that a state prisoner need not exhaust all available state remedies

before pursuing federal habeas relief has since been overruled. See Fay, 372 U.S. at

430 (“The jurisdictional prerequisite is not the judgment of a state court but

detention simpliciter”); contra Wainwright v. Sykes, 433 U.S. 72, 87-88 (1977)

(rejecting Fay’s conclusion that federal courts can grant habeas relief on issues state

prisoners could have raised in state court); McCleskey v. Zant, 499 U.S. 467, 491

(1991) (noting that the Court has taken care in the years since Fay to emphasize the

importance of finality of state court decisions). There is no dispute in this case that

Mr. Thompson exhausted available state remedies before pursuing federal habeas

relief.

10

has the power to release him.”). What the federal court cannot do is correct the

illegal condition itself or dictate how the State must correct it. Jd. at 430-31.

Fay explicitly recognized the broad language of 28 U.S.C. § 2243 authorizing

habeas courts to “dispose of the matter as law and justice require,” but concluded

that federalism principles must constrain this language. Id. at 430-32. The Fay

Court’s attempt to honor these principles is reflected in the balance it ultimately

reached: the Court held that while a federal habeas court can order a state

prisoner’s release, “it has no other power; it cannot revise the state court judgment;

it can act only on the body of the petitioner.” Id. at 430-31.

Fay’s statement that a federal habeas court has “no other power” than to

order a state prisoner’s release appears unequivocal. But numerous cases have

chipped away at that holding in the decades since. Just five years after Fay this

Court decided Carafas v. LaVallee, 391 U.S. 234 (1968). Carafas addressed the

question of whether a federal court can retain jurisdiction over a state prisoner’s

habeas petition when the prisoner is released after the petition is filed but before

the case is decided. Jd. at 237. Without referencing Fay or its language indicating

that federal courts have “no other power” then to order a prisoner’s release, the

Court in Carafas reasoned that the federal habeas statute “does not limit the relief

that may be granted to discharge of the applicant from physical custody.” Id. at 239.

The Carafas Court noted that the habeas statute “seem[s] specifically to

contemplate the possibility of relief other than immediate release from physical

custody,” and reasoned that the statute permitted federal courts to grant a broad

11

variety of relief. Jd. at 239 (citing 28 U.S.C. § 2248); see also Peyton v. Rowe, 391

U.S. 54, 68-64, 66 (1968) (citing Fay favorably when discussing the implications of

federalism on habeas orders, but later concluding without any discussion of Fay

that the habeas statute “does not deny the federal courts power to fashion

appropriate relief other than immediate release”).

Five years after Carafas this Court reaffirmed Fay’s position that the

primary function of the habeas corpus writ is to grant release from custody. Preiser

v. Rodriguez, 411 U.S. 475 (1973). In Preiser, the Court analyzed whether state

prisoners seeking injunctive relief could pursue such relief in a Section 1983

lawsuit, or whether they must file habeas petitions. Jd. at 476-77; 42 U.S.C. § 1983.

The Court affirmed that the “essence of habeas corpus is an attack by a person in

custody upon the legality of that custody, and... the traditional function of the writ

is to secure release from illegal custody.” 411 U.S. at 484. The Court then cited Fay

for the proposition that the purpose of a habeas petition is to “inquir(e) into illegal

detention with a view to an order releasing the petitioner.” 411 U.S. at 484 (quoting

Fay, 372 U.S. at 399 n.5).

Four years later, in Brewer v. Williams, the Court granted a state prisoner’s

habeas petition on grounds that the State violated his right to counsel. 4380 U.S.

387, 390, 401 (1977). Rather than correct the constitutional violation itself, the

Court suspended issuance of the habeas writ until the State had an opportunity to

correct the error. 430 U.S. at 406 n.13. Similarly, in Cabana v. Bullock this Court

dealt with the question of the appropriate federal habeas response after a state

12

prisoner had been improperly sentenced to death without a clear finding of the

requisite mental culpability. 474 U.S. 376, 390-91 (1986). The Court reasoned that,

because “[cJonsiderations of federalism and comity counsel respect for the ability of

state courts to carry out their role as the primary protectors of the rights of criminal

defendants,” the proper remedy was to vacate the petitioner’s sentence and allow

the state to determine the appropriate sentence. Jd. at 391-92.

In Hilton v. Braunskill, this Court assessed whether federal appellate courts

have authority to stay, pending appeal, a federal habeas decision ordering release of

a state prisoner. 481 U.S. 770, 774 (1987). Without referencing Fay, the Brauwnskill

Court answered in the affirmative, reasoning that federal habeas practice “indicates

that a court has broad discretion in conditioning a judgment granting habeas relief.

Federal courts are authorized, under 28 U.S.C. § 2248, to dispose of habeas corpus

matters ‘as law and justice require.” Jd. at 775.

Four years after Braunskill, the Court in Coleman v. Thompson again

espoused a narrow understanding of federal habeas authority over state court

prisoners. 501 U.S. 722 (1991). In Coleman, the Court returned to Fay for the

proposition that, when analyzing a habeas petition filed by a state prisoner under

28 U.S.C. § 2254, the federal habeas court’s only task is to decide whether the

petitioner’s conviction or sentence violates federal law. 501 U.S. at 730. “The court

does not review a judgment, but the lawfulness of the petitioner’s custody

simpliciter.” Id. (quoting Fay, 372 U.S. at 480).

13

In Herrera v. Collins, the Court declined to grant relief in a state prisoner’s

habeas petition alleging actual innocence. 506 U.S. 390 (1993). While not itself

reaching the question of appropriate habeas remedies for a state constitutional

violation, the Court criticized the dissent for “failfing] to articulate the relief that

would be available,” and questioned whether the appropriate relief would be

commutation of the sentence, unconditional release from prison, or a new trial. Id.

at 403. The Court also noted that the “typical relief granted in federal habeas

corpus is a conditional order of release.” Id.

ii. This Court has not addressed its remedies precedent

post-AEDPA

In 1996 Congress passed the Antiterrorism and Effective Death Penalty Act

(AEDPA), which, inter alia, imposed new limits on federal habeas power over state

prisoners. See 28 U.S.C. § 2254 (eff. 1996). While AEDPA restricted federal courts’

authority to grant habeas petitions filed by state prisoners, it did not address the

federal courts’ ability to impose specific remedies when federal law violations do

occur.

This Court has not post-AEDPA provided any definitive guidance on the

scope of federal courts’ ability to order specific remedies for state’s federal law

violations. In Wilkinson v. Dotson, this Court addressed the interplay between 42

U.S.C. § 1983 and 28 U.S.C. § 2254. See 544 U.S. 74 (2005). While the majority

opinion did not discuss the precise limitations of the federal habeas power, Justice

Scalia’s concurrence noted that, though federal courts have broad habeas powers

under 28 U.S.C. § 2243 over prisoners not incarcerated because of a state court

14

judgment, their powers over state prisoners under 28 U.SC. § 2254 are less

expansive. See 544 U.S. at 85-87 (Scalia, J., concurring). Justice Scalia did not

attempt to define the boundaries of federal habeas courts’ ability to remedy state’s

federal law violations.

Most recently, in Kernan v. Cuero this Court rejected the Ninth Circuit’s

decision to order specific performance of a sentence that a state prisoner had

negotiated and requested in his federal habeas petition. 138 S. Ct. 4, 5-7, 9 (2017).

While the Court noted that none of its precedent required specific performance as a

remedy, it did not address whether the federal habeas statutes authorize specific

performance as a remedy. Jd. at 8.

B. Federal circuit courts are deeply divided about whether they can

order specific habeas remedies for federal law violations against

state prisoners

Federal courts are split—even among their own circuits—on the scope and

limitations of a federal court’s habeas power to impose specific remedies for federal

law violations against state prisoners. This split arises largely from confusion about

this Court’s seemingly divergent strands of precedent on the topic. The Third,

Fourth, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuit Courts of Appeal have

relied on Fay or related progeny as recently as 2019 for the principle that federal

habeas authority over state prisoners is limited to ordering release of the prisoner

unless the State rectifies the error. The Second, Sixth, Ninth, and Tenth Circuit

Courts of Appeals rely on Carafas or the text of 28 U.S.C. § 2243 alone in

15

interpreting the federal habeas courts’ power as expansive and not limited to

ordering release.

i. The Third, Fourth, Fifth, Seventh, Eighth, Ninth, and

Eleventh Circuits rely on Fay and its progeny for the

principle that federal habeas courts cannot order state

courts to impose specific remedies

Several of the federal circuits understand Fay’s language that federal courts

have “no other power” than to order release as prohibiting federal courts from

imposing specific remedies that state courts must follow. Fay, 372 U.S. at 430. The

Third Circuit in Henderson v. Frank addressed the case of a state prisoner who filed

a meritorious habeas petition based on the state’s failure to ensure a valid waiver of

counsel. 155 F.3d 159, 162, 167 (8d Cir. 1998). The parties disputed the proper

remedy, and the court relied on Fay for the proposition that habeas authority is

limited to conditionally ordering the prisoner’s release and does not permit federal

courts to revise the state court’s judgment. Jd. at 168 (quoting Fay, 372 U.S. at 430-

31). The court concluded that the “federal habeas power is limited, first, to a

determination of whether there has been an improper detention by virtue of the

state court judgment; and second, if we find such an illegal detention, to ordering

the immediate release of the prisoner.” Henderson, 155 F.3d at 168; see also Barry v.

Brower, 864 F.2d 294, 3800-01 (8d Cir. 1988) (reversing federal district court’s

habeas order directing state court to provide specific remedy for constitutional

violation, and reasoning that a habeas court “does not have power to directly

intervene in the process of the tribunal which has incorrectly subjected the

petitioner to the custody of the respondent official”); Dunn v. Colleran, 247 F.3d

16

450, 462 (3d Cir. 2001) (granting a habeas petition but declining to impose a specific

remedy, instead noting that it is “best left to the state court to decide what remedy

is appropriate”).

More recently, the Fourth and Fifth Circuits reiterated the Fay holding that

federal habeas courts have no authority to modify the terms of a state court

judgment. See Winston v. Pearson, 683 F.3d 489, 507 (4th Cir. 2012); Woodfox v.

Cain, 789 F.3d 565, 569 (5th Cir. 2015). In Winston, the Fourth Circuit addressed

the proper remedy for a state prisoner who was sentenced to death without effective

assistance of counsel. 683 F.3d at 492-93. The Fourth Circuit held that, after

granting the habeas petition, the federal court “had no authority to fashion a

particular procedure to remedy” the improper sentence. 683 F.3d at 507. Instead,

the court must “leave it to the [State’s] prerogative to craft a remedy consonant with

the strictures of state law.” Id. at 507; see also Rose v. Lee, 252 F.3d 676, 688 n.11

(4th Cir. 2001) (“[W]Je do not believe that a federal habeas court can remand a case

to a state habeas court.”).

Woodfox involved a state appeal after a federal district court granted a state

prisoners habeas petition and ordered unconditional release without giving the

state an opportunity to correct its error. 789 F.3d at 567. Reversing the federal

district court’s usurpation of state authority, the Fifth Circuit reasoned that

federalism principles prevented the habeas court from interfering with the state

court’s judgment. Jd. at 569. While the federal court could grant the habeas petition

and order the state to either release the prisoner or correct its error, “the precise

17

remedy is generally left to the state.” Id.; see also Smith v. Lucas, 9 F.3d 359, 368

(5th Cir. 1993) (relying on Fay for the principle that federal courts cannot require

state courts to impose specific sentences, and commenting, “We have found no

indication that the Supreme Court [post-Fay] has somehow changed its position and

extended the use of habeas corpus ... to revise a state criminal defendant’s

sentence without requiring his release. It would thus appear that the writ has but

one remedy—to direct the liberation of a state prisoner whose confinement violates

federal law”); Billiot v. Puckett, 135 F.3d 311, 316 n.5 (5th Cir. 1998) (when a

federal court grants a state prisoner's habeas petition the federal court does not

have authority to “remand” to the state court with specific instructions).

The Seventh Circuit, though not citing Fay, has rejected a habeas petitioner’s

request that the federal court reduce his sentence as remedy for undue delay in his

appeal. Allen v. Duckworth, 6 F.3d 458, 460 (7th Cir. 1998). The court explained

that habeas corpus “is not a compensatory remedy. The object is not to make whole

someone who has suffered a loss; it is to determine whether a person is being

confined in violation of basic norms of legality.” Id.

The Eighth Circuit has acknowledged that “the teaching of Fay v. Noia.. .

emphasizes that a federal district court should not ‘upset a state conviction without

an opportunity to the state courts to correct a constitutional violation.” Smith v.

Wolff, 506 F.2d 556, 558 (8th Cir. 1974).

The Ninth Circuit has held that a federal court exceeds its habeas powers

when it directs the state to modify a state prisoner’s sentence. Douglas v. Jacquez,

18

626 F.3d 501, 504 (9th Cir. 2010). Relying on Fay, the court reasoned that while a

habeas court has power to order release of a state prisoner, it has no power to

“revise the state court judgment.” Id. at 504 (quoting Fay, 372 U.S. at 430-31); see

also Gouveia v. Espinda, 926 F.3d 1102, 1109-10 (9th Cir. 2019) (citing Fay for the

proposition that habeas courts have limited powers over state prisoners, and thus

the habeas writ “does not empower a habeas court to modify a state court

judgment”).

The Eleventh Circuit, affirming the federal district court’s grant of a habeas

petition claiming sentencing error 1n a state case, noted that “a federal district court

or court of appeals has no appellate jurisdiction over a state criminal case and hence

has no authority to ‘remand’ a case to the state courts.” Magwood v. Smith, 791 F.2d

1438, 1450 (11th Cir.1986). Though the court did not cite Fay, it reasoned that

because the federal habeas statute provides an avenue for collateral rather than

appellate review of state judgments, the appropriate habeas remedy is to “grant a

conditional writ of habeas corpus’ rather than remand with specific directions to the

state court. Id.

ii. The Second, Sixth, Ninth, and Tenth Circuits have

adopted a more expansive reading of federal habeas

courts’ authority to remedy federal law violations against

state prisoners

Of the federal circuit courts that employ an expansive reading of federal

habeas remedy power, only one has expressly rejected the limiting language of Fay.

The Sixth Circuit discussed the seeming contradictions between Fay and Carafas,

relying on Carafas to conclude that federal habeas authority extends beyond

19

challenges to incarceration and can include relief from collateral consequences. See

Gentry v. Deuth, 456 F.3d 687, 693 (6th Cir. 2006) (‘Although the Supreme Court

had seemed to limit habeas relief to ‘the body of the petitioner’ in Fay v. Noia.. .

the Court subsequently expanded the writ’s scope in Carafas v. LaVallee” (internal

citations omitted)); see also Glenn v. Dallman, 686 F.2d 418, 423 (6th Cir. 1982)

(citing Carafas for the idea that the “federal habeas corpus statute permits federal

courts to fashion relief as justice requires,” and ordering the federal district court to

issue a writ reclassifying the petitioner’s conviction from aggravated burglary to

burglary).

Other federal circuit courts simply do not discuss Fay when addressing

appropriate habeas remedies for states’ federal law violations. In Cody uv.

Henderson, the Second Circuit addressed a_ state prisoner’s request for

unconditional release based on a delay in state appellate proceedings. 986 F.2d 715,

718-19 (2d Cir.1991). While the court referenced Preiser v. Rodriguez for the

principle that the writ’s traditional function is to secure release from custody (id. at

720, citing Preiser, 411 U.S. at 484-86), it gave no indication that it believed itself

constrained by that remedy. 936 F.2d at 720-22. Ultimately, the court “remand|[ed]”

the case to provide the petitioner an opportunity to explore a suit for damages

under 42 U.S.C. § 1988. Id. at 723.

The Ninth Circuit, in a case predating Gouveia by ten years, granted relief to

a prisoner wrongly convicted of a sex offense even though he had already been

released from prison. Holley v. Yarborough, 568 F.3d 1091, 1102 (9th Cir. 2009).

20

The court reasoned that, “although habeas petitions are typically granted as a

means of releasing the petitioner from custody, the federal habeas statute ‘does not

limit the relief that may be granted to discharge of the applicant from physical

custody.” Id. (quoting Carafas, 391 U.S. at 238-39).

The Tenth Circuit, when asked to decide whether releasing a state prisoner

without giving the state an opportunity to remedy its error was an appropriate

habeas remedy, answered in the affirmative. Hannon v. Maschner, 981 F.2d 1142

(10th Cir. 1992). The court relied on Carafas and Braunskill to emphasize that the

habeas mandate is “broad with respect to the relief that may be granted” and

includes “any relief it deems necessary.” Jd. at 1145 (quoting Brawnskill, 481 U.S. at

775; Carafas, 391 U.S. at 239).

C. State courts are confused about whether and to what extent federal

courts can dictate specific habeas remedies for state courts to follow

i. At least five states reject federal courts’ authority to

impose specific remedies for states to follow

The supreme courts of Illinois and Arkansas, as well as appellate courts in

California, Colorado, and Oklahoma, have interpreted federal habeas authority as

limited and rejected federal court efforts to dictate specific remedies for federal law

violations. The [llnois Supreme Court addressed a group of state prisoners’ claims

that federal habeas courts had no authority to vacate their sentences. People ex rel.

Madigan v. Snyder, 208 Ill. 2d 457, 469 (2004). The Illinois Supreme Court agreed,

relying on Fay for the proposition that “a federal court issuing a writ of habeas

corpus essentially requires the State to retry or resentence the defendant, on pain of

21

ordering the defendant’s release if the State does not comply ... A federal court

considering a state prisoner’s petition for a writ of habeas corpus does not have the

authority to revise a state court judgment.” Jd. at 469-70 (quoting Fay, 372 U.S. at

430-31). The Illinois Supreme Court noted that “the federal court had no authority

to revise the judgments of the Illinois courts in these cases. Thus, although the

[federal] district court used the term ‘vacate,’ its order could not vacate these

sentences.” 208 Ill. 2d at 470.

The Arkansas Supreme Court has also recognized that federal habeas courts

have no authority to order a state court to take specific actions in a state prisoner's

case. Nail v. State, 869 S.W.2d 705, 705-06 (1994). The federal court in Nail issued a

habeas order directing the state court to appoint counsel for a state prisoner and

permit the prisoner to pursue a belated appeal. Jd. at 705. The Arkansas Supreme

Court rejected the federal district court’s order, concluding that “the District Court

has no authority to order or direct the trial court or the Arkansas Supreme Court to

take any action relative to this matter.” Jd. The Arkansas court further explained

that “the appropriate avenue for federal relief is to grant a petition for habeas

corpus, not to order or direct the state courts to take some action.” Jd. at 706.

The California Court of Appeals has interpreted Fay as limiting the authority

of federal courts to impose remedies other than conditionally discharging a state

prisoner from wrongful confinement. People v. Black, 116 Cal. App. 4th 103, 108

(Cal. App. 2004). The court in Black reasoned that, while Fay has been overruled on

other grounds, it still serves as the seminal authority on the power of federal courts

22

to dictate remedies for violations of state prisoner’s constitutional rights. Id.

(quoting Fay, 372 U.S. at 430-31). The court also concluded that 28 U.S.C. § 2243's

provision that habeas courts can “dispose of the matter as law and justice require,”

read together with Fay, permits a federal court to grant a habeas petition

conditioned on the state rectifying the particular error at issue in that case. 116 Cal.

App. 4th at 108-09.

The Colorado Appellate Court has also concluded that a federal habeas court

cannot order a state court to act in a specific way. People v. Wood, 434 P.3d 6638, 671

(Colo. App. 2016), vacated on unrelated grounds by People v. Wood, 433 P.3d 585

(Colo. 2019). The Colorado court relied on three federal appellate decisions to

conclude that “a federal court cannot remand a habeas corpus action to a state

district court, nor could a federal court compel a state court to act under a

conditional grant of habeas corpus relief.” See 434 P. 3d at 671-72 (citing Billiot v.

Puckett, 1385 F.3d 311, 316 n.5 (5th Cir. 1998); Hardcastle v. Horn, 368 F.3d 246,

261 (3d Cir. 2004); Rose v. Lee, 252 F.3d 676, 688 n.11 (4th Cir. 2001)).

An Oklahoma appellate court addressed a federal habeas order that vacated

a state prisoner's sentence “without prejudice to further proceedings by the State for

re-determination of the sentence . . . at which proceedings the petitioner is afforded

an opportunity to present all evidence relevant to mitigating circumstances or to the

ageravating circumstances alleged.” Chaney v. Brown, 699 P.2d 159, 160 (Okla.

Crim. App. 1985). The Oklahoma court concluded that, notwithstanding the federal

court's order anticipating a resentencing hearing, state law did not permit a

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