Amicus Curiae Brief — Richard Eugene Glossip, Petitioner v. Oklahoma

No. 22-7466

In the

Supreme Court of the United States

RICHARD EUGENE GLOSSIP,

Petitioner,

vs.

STATE OF OKLAHOMA,

Respondent.

ON WRIT OF CERTIORARI TO

THE OKLAHOMA COURT OF CRIMINAL APPEALS

BRIEF OF AMICI CURIAE STATE OF UTAH

AND SIX OTHER STATES IN SUPPORT OF

THE JUDGMENT BELOW

SEAN D. REYES

Utah Attorney General

STANFORD E. PURSER

Utah Solicitor General

Counsel of Record

ANDREW F. PETERSON

Deputy Solicitor General

GINGER JARVIS

MARK C. FIELD

Assistant Solicitors General

Office of the Utah Attorney General

P.O. Box 140858

Salt Lake City, UT 84114-2320

(801) 366-0100

spurser@agutah.gov

Counsel for Amici Curiae

ii

TABLE OF CONTENTS

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

INTEREST OF AMICI CURIAE ................................1

INTRODUCTION AND SUMMARY OF

ARGUMENT .........................................................1

ARGUMENT ...............................................................3

I.

Federal court review of the OCCA’s

decision would harm state sovereignty

and other significant interests. .....................3

II. This Court lacks jurisdiction to review

Petitioner’s claims because the OCCA’s

decision below rests on an adequate and

independent state-law ground. .....................7

A. Oklahoma’s Post-Conviction

Procedure Act is an adequate statelaw ground for relief because it is

regularly followed and evenhandedly

applied. .....................................................8

B. The OCCA’s application of Oklahoma

law was independent of federal law. .....10

CONCLUSION ..........................................................17

ADDITIONAL COUNSEL ........................................19

iii

TABLE OF AUTHORITIES

Federal Cases

Apprendi v. New Jersey,

530 U.S. 466 (2000) .............................................. 16

Banks v. Workman,

692 F.3d 1133 (10th Cir. 2012) .............................. 8

Brady v. Maryland,

373 U.S. 83 (1963) .................................................. 2

Brecheen v. Reynolds,

41 F.3d 1343 (10th Cir.1994) ................................. 8

California v. Ramos,

463 U.S. 992 (1983) .............................................. 14

Coleman v. Thompson,

501 U.S. 722 (1991) .................................4, 7, 10, 12

Cruz v. Arizona,

598 U.S. 17 (2023) .............................................. 8, 9

Dugger v. Adams,

489 U.S. 401 (1989) ................................................ 8

Duvall v. Reynolds,

139 F.3d 768 (10th Cir. 1998) ................................ 8

Eddings v. Oklahoma,

455 U.S. 104 (1982) .............................................. 14

Fairchild v. Trammell,

784 F.3d 702 (10th Cir. 2015) ................................ 8

Ford v. Georgia,

498 U.S. 411 (1991) ................................................ 8

Ford v. Wainwright,

477 U.S. 399 (1986) .............................................. 14

Garza v. Idaho,

586 U.S. 232 (2019) .............................................. 17

iv

Gonzalez v. Crosby,

545 U.S. 524 (2005) ................................................ 4

Harmelin v. Michigan,

501 U.S. 957 (1991) .............................................. 14

Harris v. Reed,

489 U.S. 255 (1989) ........................................ 13, 16

Kyles v. Whitley,

498 U.S. 931 (1990) ................................................ 3

Lawrence v. Florida,

549 U.S. 327 (2007) ................................................ 3

Lee v. Kemna,

534 U.S. 362 (2002) ................................................ 8

Lockett v. Ohio,

438 U.S. 586 (1978) .............................................. 14

Michigan v. Long,

463 U.S. 1032 (1983) ............................................ 16

Miller v. Alabama,

567 U.S. 460 (2012) .............................................. 15

Napue v. Illinois,

360 U.S. 264 (1959) ................................................ 2

Odum v. Boone,

62 F.3d 327 (10th Cir. 1995) .................................. 8

Ring v. Arizona,

536 U.S. 584 (2002) .............................................. 15

Shinn v. Ramirez,

596 U.S. 366 (2022) ........................................ 3, 4, 5

Simpson v. Carpenter,

912 F.3d 542 (10th Cir. 2018) ............................ 8, 9

Thacker v. Workman,

678 F.3d 820 (10th Cir. 2012) ................................ 8

Turner v. Murray,

476 U.S. 28 (1986) ................................................ 14

v

Woodson v. North Carolina,

428 U.S. 280 (1976) .............................................. 13

State Cases

Slaughter v. State,

108 P.3d 1052 (Okla. Crim. App. 2005) ............... 10

Federal Statutes

28 U.S.C. § 2244(b)..................................................... 4

28 U.S.C. § 2254(b)..................................................... 3

State Statutes

Okla. Stat. tit. 22, § 1089(D)(8)(b) ................... 7, 9, 12

INTEREST OF AMICI CURIAE

Amici curiae are the States of Utah, Alaska, Arkansas, Louisiana, Montana, South Carolina, and

Tennessee. Amici have a substantial interest in federal-court respect for state-court decisions applying

state law. That’s especially true when state courts apply their state’s successive post-conviction procedural

bars bringing criminal matters to an end. Those bars

unquestionably provide adequate and independent

state-law grounds to support those state court judgments and preclude this Court’s review. That conclusion—grounded in the bedrock principles of finality,

comity, and federalism—doesn’t change depending on

whether elected state law enforcement choose to defend the criminal judgment. All stakeholders—criminal defendants, crime victims, and the public—need

the stability provided by state criminal law and procedures, including this Court’s long-upheld adequateand-independent-state-ground doctrine. The potential federal-court rejection of a decades-old state court

conviction and sentence—despite the Oklahoma

Court of Criminal Appeal’s (OCCA) factually and legally well-supported decision based on state law—

portends widespread ramifications for state-court

convictions, capital and non-capital, nationwide.

INTRODUCTION AND SUMMARY OF

ARGUMENT

Over twenty years ago, an Oklahoma jury convicted Petitioner of First-Degree (malice) Murder,

found the existence of a capital aggravating circumstance, and set death as punishment. JA 980-81. The

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conviction and sentence have already gone through

several rounds of judicial review, including a direct

appeal and multiple post-conviction proceedings.

Now, on his fifth application for state post-conviction

relief, Petitioner garnered support from the newly

elected Oklahoma Attorney General (OAG). JA 981.

To be sure, the OAG admits that Petitioner is criminally culpable for murdering Barry Van Treese. JA

981-82. But the OAG still supported Petitioner’s successive request for post-conviction relief based on an

alleged violation of Brady v. Maryland, 373 U.S. 83

(1963) and Napue v. Illinois, 360 U.S. 264 (1959) and

requested that the Oklahoma state court vacate Petitioner’s decades’ old murder conviction and death sentence and remand for a new trial. JA 981-82.

The OCCA—Oklahoma’s court of last resort for

criminal matters—correctly denied Petitioner postconviction relief or a stay of execution based on the

State’s legislatively enacted Post-Conviction Procedure Act. JA 982. The state court applied the procedural bar based on the longstanding availability of the

proffered “new” evidence and alternatively noted that

Brady and Napue were not violated. JA 989-94. This

Court should not disturb the OCCA’s state-court ruling in a successive post-conviction proceeding because

it rested on an independent and adequate state law

ground sufficient to support the judgment. That’s true

regardless of the OAG’s current position.

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Finality, comity, and federalism are served best

when federal courts respect state-court procedural

bars, even when their application contains alternative analysis of a federal claim. To do otherwise risks

limiting beneficial state-court review for defendants

and destabilizing the criminal justice system for the

public and non-capital crime victims alike.

ARGUMENT

I.

Federal court review of the OCCA’s decision

would harm state sovereignty and other significant interests.

The prescribed order for federal court review of

state prisoners’ federal constitutional claims requires

them to first raise their claims in state court under

state procedures and then present them in a federal

habeas petition. See 28 U.S.C. § 2254(b); Lawrence v.

Florida, 549 U.S. 327, 335 (2007); Kyles v. Whitley,

498 U.S. 931, 932 (1990) (Stevens, J., concurring in

denial of stay of execution). And when a state prisoner

has failed to comply with state procedural rules so

that a state court would dismiss on that basis, the

claim is procedurally defaulted under the Anti-Terrorism and Effective Death Penalty Act (AEDPA) and

unreviewable by a federal court. Shinn v. Ramirez,

596 U.S. 366, 371 (2022). This remains true even after

the federal habeas process has run its course and a

defendant pursues additional, successive state postconviction proceedings that are now procedurally

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barred. Coleman v. Thompson, 501 U.S. 722, 729

(1991).

The OCCA dismissed Petitioner’s latest attempts

at relief on just that basis. JA 981-82, 984-96. So federal review is now barred absent compliance with

AEDPA requirements not relevant here in this successive collateral attack in state court. But Petitioner’s cert petition does not comply with AEDPA—

the petition tries to bypass it altogether by seeking

this Court’s direct review of the dismissal of a successive state post-conviction petition by the state’s highest criminal court. In other words, what would not be

permitted in a second or successive federal habeas petition is being sought instead directly from this Court.

See Gonzalez v. Crosby, 545 U.S. 524, 530 (2005); 28

U.S.C. § 2244(b).

This finality-busting scheme—even more than

federal review through normal federal habeas process—destroys core federalism principles dating back

hundreds of years. “From the beginning of our country, criminal law enforcement has been primarily a

responsibility of the states . . . and the power to convict and punish criminals lies at the heart of the

States’ residuary and inviolable sovereignty.”

Ramirez, 596 U.S. at 376 (cleaned up). This means

that the primary authority for defining and enforcing

the criminal law and adjudicating constitutional challenges to state convictions lies with the states. Id. The

intrusion of a federal court’s power into this state

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sovereignty takes a toll on federalism in two particularly costly ways. Id.

First, when a federal court orders the release or

retrial of a state prisoner, it “overrides the State’s sovereign power to enforce societal norms through criminal law.” Id. at 376 (cleaned up). And that causes

states and crime victims to suffer “profound injury” to

the powerful and legitimate interest in punishing the

guilty born of the “real finality” that permits “victims

of crime to move forward knowing the moral judgment

will be carried out.” Id. at 376-77 (cleaned up).

Second, “federal intervention imposes significant

costs on state criminal justice systems by disturbing

the State’s significant interest in repose for concluded

litigation.” Id. at 377 (cleaned up). Federal intervention also undermines the considerable investment

States have in their criminal trials and makes a fiction of the “perception of the trial of a criminal case in

state court as a decisive and portentous event.” Id.

(cleaned up).

These sovereignty and finality harms States incur

during the normal habeas process are even more problematic if the federal review occurs outside AEDPA’s

confines in an appeal from a state-court denial of a

successive post-conviction petition based on state law.

Why have a habeas process at all if it can be so easily

eluded?

These injuries are not mitigated, much less justified, here just because an elected state official—the

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OAG—decided to confess error and support Petitioner’s AEDPA-skipping gambit. Indeed, Petitioner

abandoned the issue whether due process requires reversal when a State concedes error. Pet. Br. at i n.*.

Besides that, the OAG’s confession isn’t dispositive or

due any particular weight. Ct. Appointed Amicus Br.

at 43-46. Nor can the OAG’s confessions waive the

harms to state sovereignty, the criminal justice system, the public, and the crime victim’s family. That is

especially true here because the OAG concedes his

confessed error does not suggest that Petitioner is actually innocent. JA 981-82; Resp. Br. at 13. (Everyone

agrees actual innocence could, and should, justify upending finality concerns under Oklahoma’s rule. JA

987.)

More importantly for resolving this case, the

OAG’s confession (or alleged waiver of the procedural

bars) does not supersede Oklahoma’s post-conviction

successive petition requirements or the fact that the

OCCA’s reliance on that rule constitutes an adequate

and independent state law ground for decision as explained below. Ct. Appointed Amicus Br. at 25-28, 4348. This Court lacks jurisdiction to revisit the OCCA’s

application of Oklahoma’s duly enacted and regularly

applied procedural bar.

Plus, it would be unwise to do so. Criminal laws

and rules must stay constant and above the changing

opinions of rotating elected officials. Petitioner was

constitutionally convicted and sentenced, which has

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been affirmed through several rounds of appeal and

review. If application of criminal laws and rules potentially changes with each new administration, the

criminal justice system ceases to have much authority

or credibility. It cannot withstand such whiplash.

II. This Court lacks jurisdiction to review Petitioner’s claims because the OCCA’s decision

below rests on an adequate and independent state-law ground.

The Court has long held that it “will not review a

question of federal law decided by a state court if the

decision of that court rests on a state law ground that

is independent of the federal question and adequate

to support the judgment,” regardless of “whether the

state law ground is substantive or procedural.” Coleman, 501 U.S. at 729. In the context of this case, seeking direct review of a state court judgment, “the

independent and adequate state ground doctrine is jurisdictional.” Id.

Here, the OCCA denied Petitioner’s successive

post-conviction petition for failure to satisfy both requirements of Oklahoma Statute 22-1089(D)(8)(b).

That statute prohibits successive petitions unless the

petitioner shows both that (1) he could not have previously discovered the factual basis for his claim

through reasonable diligence, and (2) but for the alleged error his claim asserts, no reasonable fact finder

would have found him guilty or rendered the death

penalty. Id.

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A. Oklahoma’s Post-Conviction Procedure

Act is an adequate state-law ground for

relief because it is regularly followed

and evenhandedly applied.

There can be no real dispute that Oklahoma’s

post-conviction statute generally provides an adequate and independent state law ground that precludes federal review. The Tenth Circuit has

repeatedly recognized as much. See, e.g., Simpson v.

Carpenter, 912 F.3d 542, 570-72 (10th Cir. 2018);

Fairchild v. Trammell, 784 F.3d 702, 719 (10th Cir.

2015); Banks v. Workman, 692 F.3d 1133, 1145-47

(10th Cir. 2012); Thacker v. Workman, 678 F.3d 820,

835-36 (10th Cir. 2012); Duvall v. Reynolds, 139 F.3d

768, 796-97 (10th Cir. 1998); Odum v. Boone, 62 F.3d

327, 331 (10th Cir. 1995); Brecheen v. Reynolds, 41

F.3d 1343, 1349 n.4 (10th Cir.1994).

Adequacy poses a low hurdle that will be satisfied

in all but a “small category” of “exceptional” cases. Lee

v. Kemna, 534 U.S. 362, 376, 381 (2002). It’s not a

question of whether the state court correctly applied

its state law. Rather, a state law ground will generally

be adequate if it is “firmly established and regularly

followed.” Cruz v. Arizona, 598 U.S. 17, 26 (2023)

(quoting Lee, 534 U.S. at 376); Ford v. Georgia, 498

U.S. 411, 423-24 (1991); see also Dugger v. Adams,

489 U.S. 401, 410 n.6 (1989) (failing to apply the procedural rule in a few cases does not undermine the

9

state’s consistent application in the vast majority of

cases).

Section 1089 “meets this requirement.” Simpson,

912 F.3d at 571; see also Resp. Br. at 41 (noting section 1089(D)(8)(b) “is generally a valid rule of Oklahoma procedure that the State itself routinely

invokes”). The OCCA has previously applied the postconviction petition requirements to untimely Brady

claims. Ct. Appointed Amicus Br. at 24 (citing cases).

And the OCCA regularly and even-handedly applied

Oklahoma’s post-conviction preclusion rules to Petitioner’s claims that could have been raised earlier. JA

985-96; Ct. Appointed Amicus Br. at 22-28. And even

if the OCCA erred on that question, the claims would

not have led to the conclusion that no reasonable fact

finder would have found Petitioner guilty or imposed

the death penalty. Id. at 25. The OCCA’s regular application of state law differs markedly from Cruz v.

Arizona. There, this Court found that the Arizona Supreme Court’s application of a procedural rule in a

new way that conflicted with state precedent. 598

U.S. at 26-27. That is not what happened here.

Instead, the OAG urges an abnormal process in

this case. Without contesting guilt, the OAG sought

retrial and resentencing of a decades old final conviction and death sentence. Had the OCCA agreed with

the OAG’s request, that would have been an irregular

and non-even-handed application of Oklahoma law.

Such an extraordinary request, which the OCCA held

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lacked “statutory or legal grounds,” JA 982, likely

would not have been made in a non-capital case.

B. The OCCA’s application of Oklahoma

law was independent of federal law.

Oklahoma’s procedural bar is independent of the

merits of Petitioner’s underlying federal claim. That’s

because “resolution of a federal question cannot affect

the [OCCA’s] judgment,” so “there is nothing for th[is]

Court to do.” Coleman, 501 U.S. at 730. That’s true

even if the state court alternatively analyzes the second prong of Oklahoma’s procedural bar and addresses the merits of the underlying, untimely claim.

1. The OCCA, at the outset of its analysis of Petitioner’s fifth post-conviction proceeding, noted that

“this case has been thoroughly investigated and reviewed in numerous appeals” and that Petitioner’s

“new application provides no additional information

which would cause this Court to vacate his conviction

or sentence.” JA 984. Citing section1089(D)(8), the

OCCA outlined the limits on its ability to review “repeated appeals of issues that have previously been

raised on appeal, or could have been raised but were

not.” JA 985-86; see also Slaughter v. State, 108 P.3d

1052, 1054 (Okla. Crim. App. 2005). Review is permitted only for errors that would have changed the outcome and claims of factual innocence. Id.

The OCCA then recognized that the post-conviction rules “preserve the legal principle of finality of

judgment” and reiterated the burden of proof for

11

factual innocence claims: clear and convincing evidence, which is “more than that which merely tends

to discredit or impeach a witness.” JA 987 (citing Oklahoma cases). The court discussed why Petitioner’s

most recent iteration of his actual innocence claim

does “not meet the threshold showing that Petitioner

is innocent” under Oklahoma’s post-conviction rules.

JA 987-88. The affidavits submitted by Petitioner in

support of his actual innocence claim were reiterations of previously-submitted affidavits and thus “further review . . . was barred under Oklahoma law.” JA

988-89. The court also noted that information contained in the affidavits was insufficient to establish

that Petitioner is “factually innocent.” JA 989.

Then, the OCCA addressed Petitioner’s claims

that the prosecutor “withheld material, exculpatory

evidence” in violation of Brady, and its progeny. JA

989. The court acknowledged that Oklahoma “follows

the dictates of Brady,” but “even if this claim overcomes procedural bar, the facts do not rise to the level

of a Brady violation.” Id. (emphasis added); see also

Victim Family Members Amicus Br. at 7-24. The

OCCA acknowledged the OAG’s support of Petitioner’s claim but held that “the concession alone cannot overcome the limitations on successive postconviction review” and that it was “not based in law or

fact.” JA 990 (emphasis added). Importantly, before

its detailed rejection of the regurgitated Brady claim,

the OCCA stated (1) the issue “could have been presented previously, because the factual basis for the

12

claim was ascertainable through the exercise of reasonable diligence,” and (2) “the facts are not sufficient

to establish by clear and convincing evidence that, but

for the alleged error, no reasonable fact finder would

have found the applicant guilty of the underlying offense or would have rendered the penalty of death.”

Id.

This is the crux of the OCCA’s ruling—a rejection

of Petitioner’s claim by application of a procedural bar

that tracks section 1089(D)(8)(b). And it is precisely

the sort of state-court ruling to which the independent

and adequate state ground doctrine applies—“when a

state court declined to address a prisoner’s federal

claims because the prisoner failed to meet a state procedural requirement.” Coleman, 501 U.S. at 729-30.

2. The untimeliness of Petitioner’s claim(s) alone

supports the OCCA’s judgment. JA 991-95. But the

OCCA went on to hold that Petitioner’s claims fail to

satisfy section 1089(D)(8)(b)’s second requirement:

but for the alleged error, no reasonable fact finder

would have found him guilty or would have imposed

the death penalty. Okla. Stat. tit. 22, § 1089(D)(8)(b).

This alternative discussion does not render the

OCCA’s application of its state procedural law fatally

intertwined with federal law.

To begin, this Court has already explained that

when applying a state procedural bar to a federal

claim, a state court will often make an alternative

merits analysis that does not undermine the

13

independent and adequate state ground for the judgment. Harris v. Reed, 489 U.S. 255, 264, n.10 (1989)

(“A state court need not fear reaching the merits of a

federal claim in an alternative holding. By its very

definition, the adequate and independent state

ground doctrine requires the federal court to honor a

state ruling that is a sufficient basis for the state

court’s judgment, even when the state court also relies on federal law.” (cleaned up)). In other words, the

OCCA’s thoroughness in addressing both prongs of

the procedural bar does not convert the court’s judgment into a jurisdiction-grant to any and every federal court.

3. Plus, finding that the OCCA’s alternative merits analysis subjects its regular application of Oklahoma’s procedural bar to an untimely post-conviction

claim will have negative consequences. First, it will

discourage state courts from undertaking any

acknowledgement or analysis of a (capital or non-capital) defendant’s untimely or regurgitated federal

claim, to the defendant’s detriment.

In the capital context, the tendency to address an

underlying federal claim no doubt flows from this

Court’s “death is different” jurisprudence—causing

state courts to exercise extra caution when rejecting

successive claims in capital cases. See Woodson v.

North Carolina, 428 U.S. 280, 305 (1976) (“Death, in

its finality, differs more from life imprisonment than

a 100-year prison term differs from one of only a year

14

or two. Because of that qualitative difference, there is

a corresponding difference in the need for reliability

in the determination that death is the appropriate

punishment in a specific case.”); California v. Ramos,

463 U.S. 992, 998-99 (1983) (“qualitative difference of

death from all other punishments requires a correspondingly greater degree of scrutiny of the capital

sentencing determination.”); Ford v. Wainwright, 477

U.S. 399, 411 (1986) (“This especial concern is a natural consequence of the knowledge that execution is

the most irremediable and unfathomable of penalties;

that death is different.”) (plurality opinion); Harmelin

v. Michigan, 501 U.S. 957, 994 (1991) (“Proportionality review is one of several respects in which we have

held that ‘death is different,’ and have imposed protections that the Constitution nowhere else provides.”).1

Given this litany of case law, it is little wonder

that state courts reviewing successive post-conviction

petitions in capital cases are at great pains to ensure

1

See also Turner v. Murray, 476 U.S. 28, 36-37 (1986) (capital defendant accused of an interracial crime is entitled to have

prospective jurors informed of the race of the victim and questioned on the issue of racial bias); Eddings v. Oklahoma, 455

U.S. 104, 110-12 (1982) (capital sentencer may not refuse to consider, as a matter of law, any relevant mitigating evidence);

Lockett v. Ohio, 438 U.S. 586, 604 (1978) (capital sentencer may

not be precluded from considering, as a mitigating factor, any

aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis

for a sentence less than death).

15

all aspects of the defendant’s claims are addressed,

even when a time-preclusion bar applies. But then

this thoroughness gets used to accuse state courts of

addressing the merits of an underlying federal claim

and ceasing to be independent of federal law.

More recently, this Court has suggested that capital and non-capital cases are not all that “different.”

It turns out that due process is the same, or at least it

should be, in different legal contexts because the categories of “different” are ever increasing. See Miller

v. Alabama, 567 U.S. 460, 481 (2012) (“if death is different, children are different too” (cleaned up)); see

also id. at 513 (Alito, J., dissenting) (noting that the

“death is different” principle was “entirely put to

rest”).

That means what happens in capital cases inevitably happens in non-capital cases. So, if federal

courts are more inclined to grant themselves jurisdiction to review a state-court application of a procedural

bar in a successive state post-conviction proceeding in

a capital case, it won’t be too long before the practice

becomes common in non-capital cases too. That’s particularly true when some sentences (such as life without parole or a 15-year sentence for a person with a

medical expectation of only five years to live) are arguably the “functional equivalent” of a death sentence. Ring v. Arizona, 536 U.S. 584, 585 (2002)

(enumerated aggravating factor is the “functional

equivalent” of an element of a greater offense,

16

requiring finding by jury); Apprendi v. New Jersey,

530 U.S. 466, 494, n.19 (2000) (sentencing factor can

be “functional equivalent” of an element of a greater

offense).

Should a state court’s wording fall short of a subsequent federal judge’s application of the “plain statement rule,” Michigan v. Long, 463 U.S. 1032, 1042 &

n.7 (1983), when reviewing application of a state procedural bar, the state court risks its analysis of an underlying federal claim then falling on the wrong side

of “alternative holding,” Harris, 489 U.S. at 264 n.10,

thus justifying federal jurisdiction to review it. The

only way to eliminate this risk is for a state court decision to simply not discuss or even mention the underlying federal claim other than to say only that it’s

precluded.

But that is the wrong outcome to incentivize—

preventing a defendant from being “heard” and eliminating some state judicial review when the state

court is simply being thorough and conscientious.

That might lead to a failure to address a potentially

meritorious claim. What’s more, encouraging state

courts to stop their analysis at the preclusion prong to

avoid an alternative merits assessment that might be

deemed non-independent of federal law will definitively foreclose state and federal review on a successive post-conviction claim.

Second, if state court decisions implementing preclusion and including alternative merits rulings are

17

ad infinitum permission for federal court do-overs,

there is little incentive for states to maintain robust

post-conviction provisions. These procedures are

matters of legislative largesse, not constitutional

mandate. See Garza v. Idaho, 586 U.S. 232, 238 n.4

(2019) (noting the Supreme Court has never recognized a constitutional right to an appeal). But if the

conscientious (and costly) application of those postconviction procedures in state court are routinely repeated, reviewed, and undone in federal court, there’s

little reason for state court to adjudicate the issues.

CONCLUSION

This Court should dismiss Petitioner’s appeal for

lack of jurisdiction because the OCCA’s decision below

rests on an adequate and independent state law

ground.

Dated this 15 July 2024.

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Respectfully submitted,

SEAN D. REYES

Utah Attorney General

STANFORD E. PURSER

Utah Solicitor General

Counsel of Record

ANDREW F. PETERSON

Deputy Solicitor General

GINGER JARVIS

MARK C. FIELD

Assistant Solicitors General

Office of the Utah Attorney

General

P.O. Box 140858

Salt Lake City, UT 84114-2320

(801) 366-0100

spurser@agutah.gov

Counsel for Amici Curiae

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ADDITIONAL COUNSEL

TREG R. TAYLOR

Attorney General

State of Alaska

TIM GRIFFIN

Attorney General

State of Arkansas

LIZ MURRILL

Attorney General

State of Louisiana

AUSTIN KNUDSEN

Attorney General

State of Montana

ALAN WILSON

Attorney General

State of South Carolina

JONATHAN SKRMETTI

Attorney General

State of Tennessee