Petition for Writ of Certiorari — Michael Tisius, Petitioner v. David Vandergriff, Warden

Case No. _______

_________________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

_________________________________________

MICHAEL TISIUS, Petitioner,

v.

DAVID VANDERGRIFF,

Warden, Potosi Correctional Center, Respondent.

PETITION FOR WRIT OF CERTIORARI

_________________________________________

On Petition for Writ of Certiorari

to the U.S. Court of Appeals, Eighth Circuit

_________________________________________

**THIS IS A CAPITAL CASE**

EXECUTION SCHEDULED FOR JUNE 6, 2023

_________________________________________

ELIZABETH UNGER CARLYLE*

Carlyle Parish LLC

6320 Brookside Plaza #516

Kansas City, Missouri 64113

Mo. Bar No. 41930

Phone 816-525-6540

elizabeth@carlyleparishlaw.com

KEITH O’CONNOR

Keith O’Connor, LLC

PO Box 22728

Kansas City, MO 64113

Mo Bar No. 63134

Phone: 816-225-7771

Keith@keithoc.com

LAURENCE E. KOMP

Capital Habeas Unit, Chief

Federal Public Defender,

Western District of Missouri

1000 Walnut St., Ste. 600

Kansas City, MO 64106

(816) 471-8282

laurence_komp@fd.org

*Counsel of Record, Member of the Bar of the Supreme Court

COUNSEL FOR PETITIONER

CAPITAL CASE

QUESTION PRESENTED

An individual who was not qualified to serve under Missouri law sentenced

Michael Tisius to death. This juror was, and is still, illiterate. His participation as a

juror violated Mo. Rev. Stat. § 494.425, which automatically disqualifies individuals

who cannot “read” from jury service. The juror concealed his illiteracy from the

sentencing court by remaining silent to a direct question posed in voir dire

regarding literacy. Furthermore, the state assisted the juror in concealing his

illiteracy and disqualification by reading him the juror qualification form and filling

in the juror’s answers for him. In violation of state law, the state improperly

destroyed those forms. The state concealed the fact that the juror had disclosed he

could not read until the juror finally disclosed the state action 13 years later. After

Mr. Tisius raised this issue in state habeas, and then in federal court, the district

court granted a stay, but the Eighth Circuit Court of Appeals vacated it and

dismissed the petition.

The case presents the following question:

Whether a federal petition raising a Hicks v. Oklahoma, 447 U.S. 343 (1980)

claim is “second or successive” under 28 U.S.C. § 2244(b)(2) when (i) an

illiterate juror served and rendered a death verdict in violation of law; (ii) the

state helped qualify an illiterate juror knowing his statutorily disqualifying

status and concealed the assistance; (iii) the juror failed to honestly answer a

question on that factor during voir dire and failed to disclose his inability to

read to the petitioner until after the conclusion of the petitioner’s initial

habeas proceedings in the district court, and (iv) the petitioner’s subsequent

state and federal proceedings were his first fair opportunity to present his

claim?

i

LIST OF PARTIES AND CORPORATE DISCLOSURE STATEMENT

Michael Tisius was the appellant in the case below and is an indigent deathsentenced prisoner within the Missouri Department of Corrections. He was

represented in the Court below by Elizabeth Unger Carlyle, Keith O’Connor, and

Laurence Komp.

David Vandergriff, Warden of Potosi Correctional Center, was the appellee in

the case below. He was represented in the court below by Assistant Missouri

Attorney General Andrew Crane.

Pursuant to Rule 29.6, no parties are corporations.

ii

RELATED PROCEEDINGS

United States Supreme Court:

Michael Tisius v. State of Missouri, No. 11-10906 (Oct. 1, 2012) (cert denied)

Michael Tisius v. Paul Blair, No. 21-8153 (Oct. 3, 2022) (cert denied)

Michael Tisius v. David Vandergriff, No. 22-7398 (pending)

Michael Tisius v. David Vandergriff, No. 22-7625 (pending)

United States Court of Appeals for the Eighth Circuit:

Michael Tisius v. Paul Blair, No. 21-1682 (Jan. 12, 2022) (habeas corpus

appeal)

Michael Tisius v. David Vandergriff, No. 22-3175 (December 19, 2022) (state’

appeal)

United States District Court for the Western District of Missouri:

Michael Tisius v. Richard Jennings, No. 4:17-CV-00426-SRB (Oct. 30, 2020)

(habeas corpus)

Supreme Court of Missouri:

Michael Tisius v. David Vandergriff, No. SC 99938 (state habeas proceeding)

(March 1, 2023)

Michael Tisius v. David Vandergriff, No. SC100059 (state habeas proceeding)

(May 23, 2023)

State of Missouri v. Michael Tisius, No. SC84036 (direct appeal) (Dec. 10,

2002)

Michael Tisius v. State of Missouri, No. SC86534 (first post-conviction

appeal) (Jan. 10, 2006)

State of Missouri v. Michael Tisius, No. SC91209 (resentencing direct appeal)

(March 6, 2012)

Michael Tisius v. State of Missouri, No. SC95303 (second post-conviction

appeal) (April 25, 2017)

iii

Circuit Court of Boone County, Missouri:

State of Missouri v. Michael Tisius, No. 01CR-164629 (trial) (Oct. 1, 2001)

Michael Tisius v. State of Missouri, No. 03CV-165704 (first post-conviction

proceeding) (Nov. 4, 2004)

State of Missouri v. Michael Tisius, No. 01CR-164629 (resentencing) (Sept.

28, 2010)

Michael Tisius v. State of Missouri, No. 12BA-CV02901 (second postconviction proceeding) (Sept. 3, 2015)

iv

TABLE OF CONTENTS

Question Presented for Review ...................................................................................... i

List of Parties and Corporate Disclosure Statement ................................................... ii

Related Proceedings .....................................................................................................iii

Table of Contents .......................................................................................................... v

Table of Authorities .................................................................................................... vii

Opinions Below ............................................................................................................. 1

Jurisdictional Statement .............................................................................................. 1

Statutory and Constitutional Provisions Involved ....................................................... 2

Statement of The Case .................................................................................................. 3

Reasons For Granting the Writ ..................................................................................... 7

I. This Court should settle whether abuse-of-the-writ principles dictate the

determination of whether a petition challenging an undisturbed state-court

judgment is “second or successive.” .................................................................... 7

II. The district court correctly found that factual development is needed ..... 24

Conclusion .................................................................................................................... 26

INDEX TO APPENDIX 1

1. Eighth Circuit Order vacating stay and dismissing case .................................................. 1a

2. U.S. District Court Order granting stay ............................................................................ 3a

3. Order Denying State Habeas Corpus................................................................................. 7a

1 The Appendix includes exhibits redacted to remove the identity of the juror whose

qualifications are at issue in this case. Unredacted versions of these documents

were filed under seal in the Missouri Supreme Court.

v

4. Affidavit of Direct Appeal Counsel Jeannie Willibey, with Attachment-May 1, 2023...... 8a

5. Signed Statement of Juror 28—May 2, 2023 ................................................................... 14a

6. Affidavit of Juror 28—May 4, 2023 .................................................................................. 15a

7. Defective Affidavit of Juror 28—May 9, 2023 .................................................................. 18a

8. Affidavit of Trial Counsel Chris Slusher—May 1, 2023 .................................................. 20a

9. Affidavit of Trial Counsel Scott McBride, May 1, 2023 ................................................... 23a

vi

TABLE OF AUTHORITIES

Cases

Amadeo v. Zant, 486 U.S. 214, 222 (1988) ................................................................... 19

Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991) .................................................. 20

Aron v. United States, (291 F.3d 708, 712 (11th Cir. 2002)....................................... 22

Banks v. Dretke, 540 U.S. 668, 698 (2004) ............................................................ 12, 19

Boumediene v. Bush, 553 U.S. 723, 774 (2008) .......................................................... 16

Bracy v. Gramley, 520 U.S. 899, 909 (1997) ................................................................ 12

Clemons v. Mississippi, 494 U.S. 738, 746-47 (1990) ........................................... 10, 20

Crouch v. Norris, 251 F.3d 720, 723-25 (8th Cir. 2010) ............................................. 14

Dorsey v. State, 448 S.W.3d 276, 299 (Mo. banc 2014) .......................................... 9, 20

Felker v. Turpin, 518 U.S. 651 (1996 .................................................................... 14, 16

Ford v. Wainwright, 477 U.S. 399 (1986) ................................................................... 15

Gardner v. Florida, 430 U.S. 349, 358 (1977) ............................................................. 10

Gray v. Mississippi, 481 U.S. 648, 668 (1987) ...................................................... 10, 20

Hicks v. Oklahoma, 447 U.S. 343 (1980) ................................. i, 6, 9, 10, 13, 14, 17, 19

Holland v. Florida, 560 U.S. 631, 646 (2010).............................................................. 17

In re Murchison, 349 U.S. 133, 136 (1955) ................................................................. 23

Jefferson v. United States, 730 F.3d 537, 544 (6th Cir. 2013) ................................... 22

Jimerson v. Payne, 957 F.3d 916, 927 (8th Cir. 2020) ......................................... 11, 21

Johnson v. Zerbst, 304 U.S. 458, 467 (1938)............................................................... 17

Julian v. Hanna, 732 F.3d 842, 849 (7th Cir. 2013) ................................................... 11

Magwood v. Patterson, 561 U.S. 320 (2010) ................................... 8, 13, 15, 16, 17, 23

McCleskey v. Zant, 499 U.S. 467, 490 (1991) ................................................... 8, 14, 17

McDonough v. Smith, 139 S. Ct. 2149, 2159 (2019) ................................................... 11

McQuiggin v. Perkins, 569 U.S. 383, 397 (2013) ......................................................... 17

Miller–El v. Cockrell, 537 U.S. 322, 337 (2003) ........................................................... 17

Morgan v. Javois, 744 F.3d 525, 527 (8th Cir. 2013).................................................. 14

Murray v. Carrier, 477 U.S. 478, 488 (1986) ............................................................... 19

Nooner v. Norris, 499 F.3d 831, 834-35 (8th Cir. 2007) ............................................. 13

Panetti v. Quarterman, 551 U.S. 930 (2007) ...................... 8, 13, 14, 15, 16, 17, 21, 23

Porter v. Singletary, 49 F.3d 1483, 1489 (11th Cir. 1985) ......................................... 21

Rhines v. Weber, 544 U.S. 269, 275 (2005) ................................................................. 17

Ross v. Oklahoma, 487 U.S. 81, 88-89 (1988) ....................................................... 11, 20

Salinger v. Loisel, 265 U.S. 224 (1924) ....................................................................... 16

Simpson v. Norris, 490 F.3d 1029, 1035 (8th Cir. 2007) ............................................ 24

Slack v. McDaniel, 529 U.S. 473, 486 (2000) ............................................................... 14

Smith v. Armontrout, 604 F. Supp. 840, 843 (W.D. Mo. 1984) .................................. 24

vii

State ex rel. Winfield v. Roper, 292 S.W.3d 909, 910 (Mo. banc 2009)...................... 10

State v. Strong, 263 S.W.3d 636, 647 (Mo. banc 2008) .......................................... 9, 20

State v. Wacaser, 794 S.W.2d 190, 193 (Mo. 1990) ...................................................... 9

Stewart v. Martinez-Villareal, 523 U.S. 637 (1999) ............................................. 13, 15

Stoll v. Gottlieb, 305 U.S. 165, 171 (1938) .................................................................. 24

Strickler v. Greene, 527 U.S. 263, 283 (1999) ........................................................... 19

Thompson v. Missouri Bd. Of Parole, 929 F.2d 396, 401 n.10 (8th Cir. 1991) .... 10, 20

Weaver v. Massachusetts, 137 S. Ct. 1899, 1911 (2017) .................................. 20

Williams v. Norris, 612 F.3d 941, 959 (8th Cir. 2010) ............................................... 24

Williams v. Taylor, 529 U.S. 420, 442 (2000) ................................................. 12, 19, 24

Withrow v. Larkin, 421 U.S. 35, 47 (1975)............................................................ 12, 19

Wong Doo v. United States, 265 U.S. 239, 241 (1924) ................................................. 16

Statutes

28 U.S.C. § 1254 ............................................................................................................. 1

28 U.S.C. § 2244 .................................................................. i, 2, 7, 13, 14, 16, 17, 18, 23

28 U.S.C. § 2254 ................................................................................................. 2, 19, 24

28 U.S.C. § 2255 ............................................................................................................. 2

42 U.S.C. § 1983 ........................................................................................................... 11

Mo. Rev. Stat. § 486.775 ................................................................................................ 5

Mo. Rev. Stat. § 494.425 ..................................................................................... i, 3, 4, 9

Other Authorities

Henry Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments,

38 U. Chi. L. Rev. 142, 151 (1970) ........................................................................... 18

https://sos.wi/gov/NotaryPublic.htm. ............................................................................ 5

viii

PETITION FOR WRIT OF CERTIORARI

Petitioner Michael Tisius respectfully requests that a writ of certiorari issue

to review the order and judgment of the Eighth Circuit Court of Appeals, which

vacated the district court’s order staying the proceedings so that it could consider

factual issues relevant to the determination of whether Mr. Tisius had a fair

opportunity to present the instant claim in his initial federal habeas proceedings

and found that the claim was presented in an unauthorized “second or successive”

application. Appendix (hereinafter “App.”) p. 1a.

OPINIONS BELOW

The Eighth Circuit Court of Appeals’ June 2, 2023 order denying Mr. Tisius’s

supplemental petition for habeas corpus is published and appears in the Appendix

at p. 1a.

JURISDICTION

The Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1). The Eighth

Circuit dismissed Mr. Tisius’s petition for habeas corpus on June 2, 2023. App. p.

1a. This petition is timely under Rule 13.1.

1

STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED

The Fourteenth Amendment to the United States Constitution states, in

pertinent part, “Nor shall any State deprive any person of life, liberty, or property,

without due process of law. . . .”

Section 2244(b) of the U.S. Code provides in pertinent part:

(a) No circuit or district judge shall be required to entertain an application

for a writ of habeas corpus to inquire into the detention of a person

pursuant to a judgment of a court of the United States if it appears that

the legality of such detention has been determined by a judge or court of

the United States on a prior application for a writ of habeas corpus, except

as provided in section 2255.

(b)

(1) A claim presented in a second or successive habeas corpus application

under section 2254 that was presented in a prior application shall be

dismissed.

(2) A claim presented in a second or successive habeas corpus application

under section 2254 that was not presented in a prior application shall be

dismissed unless—

(A) the applicant shows that the claim relies on a new rule of

constitutional law, made retroactive to cases on collateral review

by the Supreme Court, that was previously unavailable; or

(B)

(i) the factual predicate for the claim could not have been discovered

previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of the

evidence as a whole, would be sufficient to establish by clear and

convincing evidence that, but for constitutional error, no reasonable

factfinder would have found the applicant guilty of the underlying

offense.

2

(3)

(A) Before a second or successive application permitted by this section

is filed in the district court, the applicant shall move in the appropriate

court of appeals for an order authorizing the district court to consider

the application.

(B) A motion in the court of appeals for an order authorizing the

district court to consider a second or successive application shall be

determined by a three-judge panel of the court of appeals.

(C) The court of appeals may authorize the filing of a second or

successive application only if it determines that the application makes

a prima facie showing that the application satisfies the requirements

of this subsection.

(D) The court of appeals shall grant or deny the authorization to file a

second or successive application not later than 30 days after the filing

of the motion.

(E) The grant or denial of an authorization by a court of appeals to file

a second or successive application shall not be appealable and shall not

be the subject of a petition for rehearing or for a writ of certiorari.

STATEMENT OF THE CASE

Mr. Tisius’s final sentencing hearing occurred in 2010. To avoid the effects of

pretrial publicity, jurors were selected in Greene County, Missouri. The jurors were

then bused to Boone County, Missouri for the trial.

Mo. Rev. Stat. § 494.425 provides that “persons shall be disqualified from

serving [if they are] unable to read. . . .” In Greene County, venire members were

provided a form to complete before jury selection. In 2010, Juror 28 told court

personnel he could not read or write. In response to this disclosure regarding his

illiteracy and in violation of Missouri law, a clerk “took [him] into a private room,”

read the form “word for word” to [him], and then filled out the answers for him.

3

App. 16a. The state never disclosed the secretive process and assistance provided

the juror.

During jury selection, the court asked the venire panel (with no objection

from the state), “Is there anyone here who does not read, speak and understand

English?” No one responded. Sentencing Trial Transcript, p. 92. No one in the

courtroom indicated to the trial court that Juror 28 could not read.

The jury forms completed by the venire could have contained evidence of the

reading problem. But they were not available because the state interfered again.

According to a Greene County clerk who spoke with Mr. Tisius’s direct appeal

attorney, Jeannie Willibey, in 2011, the forms were destroyed while appeal

proceedings were pending. The official told Ms. Willibey that the form “lists the

reasons you would not be qualified (under 21, not a resident, etc.) and then has the

person check a box ‘I am qualified and will appear on—whatever date—’ or ‘I am not

qualified.’” App. p. 13a. 2 During the trial, numerous written exhibits were

presented to the jury, and a copy of the jury instructions was provided to each juror.

On April 28, 2023, members of Mr. Tisius’s defense team interviewed Juror

28 at his home in Wisconsin. During the interview, which was focused on the juror’s

views regarding clemency since Mr. Tisius has a June 6, 2023, execution date, the

juror volunteered that he could not read or write. He then signed a statement—

under penalty of perjury—which included the fact that a Greene County official

Mo. Rev. Stat. § 494.425 is a juror qualification statute, which besides

disqualifying illiterate jurors, also excludes under twenty-one-year-olds, noncitizens, non-residents, judges, and felons.

4

2

assisted him in filling out his juror form. App. p. 14a. Three days later (but after

Mr. Tisius initiated state court processes), Juror 28 signed an affidavit containing

the same information and provided more details about the secretive assistance

provided by the state. App. p. 15a.

Both of Mr. Tisius’s trial attorneys submitted affidavits indicating that had

they known that Juror 28 could not read, they would have moved to strike him for

cause, and if unsuccessful, they would have used peremptory strikes. App. p. 20a

(Affidavit of Chris Slusher); App. p. 23a (Affidavit of Scott McBride).

Within days of discovery, Mr. Tisius filed a petition for state habeas corpus

relief under Mo. Sup. Ct. R. 91 on May 2, 2023, in the Missouri Supreme Court. He

also filed a related motion for a stay of execution. The state responded, adducing its

own “affidavit” 3 from the juror stating that although he sometimes says that he

cannot read or write, he can actually read “a little bit.” App. p. 18a.

Interestingly (and contradictorily), although the juror attests in the state’s

“affidavit” that he can read, he acknowledges that the state’s drafted and read to

him the “affidavit” before he signed it. App. p. 19a. He acknowledges further

3 The state’s statement fails to comply with numerous required notary

requirements. There is no notary seal and the notary’s commission number is not

included. See https://sos.wi/gov/NotaryPublic.htm. Furthermore, the “affidavit” says

that the notary is a “notary public for the State of Missouri.” However, a Missouri

notary’s notarization of an affidavit in Wisconsin violates Mo. Rev. Stat. §

486.775(12). Even more perplexing, the notary who allegedly “notarized” the

“affidavit” is not documented with the Missouri Secretary of State as a “notary

public for the State of Missouri.” The state has made no effort to correct the

defective affidavit.

5

literacy problems, admitting that “[i]t would have been difficult for [him] to write

the [“]affidavit[“] on [his] own.” Id.

Eight days later, on May 23, 2023, the Missouri Supreme Court denied the

petition without granting a hearing as requested in the petition and without a

written opinion. App. p. 7a. The court also denied Mr. Tisius’s motion for stay of

execution, even though the state never responded to it. 4

On May 25, 2023, Mr. Tisius promptly filed a supplemental habeas petition

based on a Hicks v. Oklahoma, 447 U.S. 343, 346 (1980), violation, along with a

motion to stay the execution, in the United States District Court for the Western

District of Missouri. Doc. Nos. 132, 133. Six days later, following an expedited

briefing schedule, the district court granted the stay motion and ordered an

evidentiary hearing to elucidate facts to assist it in determining whether it had

jurisdiction and whether Mr. Tisius had a fair opportunity to present this claim in

his initial habeas proceedings. 5 App. p. 3a.

The state almost immediately appealed to the Eighth Circuit Court of

Appeals, moved to vacate the stay, and asked that the supplemental petition be

deemed a “second or successive” petition and dismissed. On June 2, 2023, the

Eighth Circuit vacated the stay and ordered the district court to dismiss the

4 On May 3, 2023, the Missouri Supreme Court ordered the state to respond to Mr.

Tisius’s stay motion by May 9, 2023. The state never responded, but the Missouri

Supreme Court denied Mr. Tisius’s stay motion anyway.

5 The factual questions included (1) whether Juror 28 could read at the time he was

selected as a juror in 2010; (2) whether a Courthouse employee improperly assisted

Juror 28 in filling out his questionnaire; and (3) whether a Courthouse employee

improperly failed to disclose that assistance.

6

petition as a “second or successive” petition. App. 1a. This petition for writ of

certiorari follows.

REASONS FOR GRANTING THE WRIT

I.

This Court should settle whether abuse-of-the-writ principles dictate the

determination of whether a petition challenging an undisturbed statecourt judgment is “second or successive.”

Mr. Tisius was not afforded the basic protections expressly provided by

Missouri law for all persons tried before juries. Yet, the Missouri Supreme Court

refused to enforce this right.

The district court determined that due to the factual disputes in the record,

the court did not have enough information to decide whether Mr. Tisius had a fair

opportunity to raise his claim in his initial petition. The court found that an

evidentiary hearing was necessary to make that determination, and, due to (1) Mr.

Tisius’s likelihood of success on the merits, (2) the relative harm to the parties, and

(3) the extent to which the Mr. Tisius had not unnecessarily delayed his claims, a

stay was proper.

The Eighth Circuit vacated the stay. It determined that the federal district

court could not review the claim without authorization from the Eighth Circuit

because the habeas petition including the claim was a second or successive petition

within the meaning of § 2244(b), and Mr. Tisius could not meet the statutory

requirements for filing a successive petition to raise this claim. This decision

conflicts with relevant decisions of this Court.

7

This Court has long upheld petitioners’ right to be afforded an fair

opportunity to present their claims. See, e.g., Magwood v. Patterson, 561 U.S. 320

(2010); Panetti v. Quarterman, 551 U.S. 930 (2007). At the crux of this right is

federal courts’ power to protect and enforce this opportunity in an exercise of the

courts’ equitable discretion. McCleskey v. Zant, 499 U.S. 467, 490 (1991).

The Eighth Circuit’s decision conflicts with this Court’s jurisprudence

establishing that whether the petitioner had a fair opportunity to raise the claim in

the prior application governs whether a new application is second or successive.

Here, after knowing Juror 28 did not meet Missouri’s statutory criteria for

qualification of jurors because he could not read, the state assisted in qualifying the

juror by completing his juror qualification form for him. Then, when Juror 28 was

asked about his ability to read in voir dire, he failed to disclose that he could not

read. Less than a year later, the state destroyed the juror qualification forms. The

state has never disclosed the identity of the clerk who helped Juror 28 complete his

qualification form. However, after the conclusion of Mr. Tisius’s initial habeas

proceedings, Juror 28 finally disclosed his inability to read to Mr. Tisius’s legal

team. Mr. Tisius promptly presented his claim in state and federal court.

The Eighth Circuit’s failure to assess whether Mr. Tisius had a fair

opportunity to raise the claim in the prior application and its treatment of this

claim as second or successive conflicts with Magwood and Panetti. This Court

should recognize that Mr. Tisius did not have a fair opportunity to present this

claim earlier and grant him the opportunity to present it now.

8

A.

Mr. Tisius’s Hicks claim did not become ripe until the Missouri

Supreme Court refused to apply Missouri law.

When a state fails to abide by its own statutes in a manner governed by a

constitutional right, that action violates the Fourteenth Amendment. Hicks, 447

U.S. at 346. Mr. Tisius’s Hicks claim only became ripe upon the Missouri

Supreme Court’s refusal to apply Missouri law.

Criminal defendants in Missouri are “entitled to a full panel of qualified

jurors.” State v. Wacaser, 794 S.W.2d 190, 193 (Mo. 1990). To ensure defendants

receive a qualified panel, the Missouri legislature enacted Mo. Rev. Stat. §

494.425, which sets forth these requirements, mandating:

The following persons shall be disqualified from serving as a petit or

grand juror:

...

(5) Any person unable to read, speak and understand the English

language, unless such person’s inability is due to a vision or hearing

impairment which can be adequately compensated for through the use

of auxiliary aids or services. . . .

(emphasis added); see also Juror Basics, Missouri Courts,

https://tinyurl.com/3ze2hfr4 (last visited June 4, 2023) (“A person is eligible for

jury service if he or she . . . is able to read, speak, and understand English.”).

“Failure to strike an unfit juror is structural error. . . .” Dorsey v. State, 448

S.W.3d 276, 299 (Mo. banc 2014); see also State v. Strong, 263 S.W.3d 636, 647 (Mo.

banc 2008) (prejudice presumed); State v. Mayes, 63 S.W.3d 615, 625 (Mo. banc

2001) (intentional nondisclosure merits new trial without a showing of prejudice);

9

Gray v. Mississippi, 481 U.S. 648, 668 (1987). As these cases show, a death sentence

imposed by an unqualified juror is a structural defect.

Though Juror 28 could not read at the time of voir dire (and still cannot read)

and thus did not meet Missouri’s juror qualification requirements, the state never

disclosed their assistance provided Juror 28, assistance provided because he could

not read. Juror 28 did not disclose his inability to read to Mr. Tisius until well after

the conclusion of Mr. Tisius’s initial federal habeas proceedings. When he did finally

disclose it, Mr. Tisius promptly presented his due process claim to the state court

using the required state procedure for the presentation of claims arising after the

conclusion of direct appeal and post-conviction proceedings. See State ex rel.

Winfield v. Roper, 292 S.W.3d 909, 910 (Mo. banc 2009) (appointing a special

master to consider juror misconduct claim uncovered after the conclusion of the

petitioner’s federal habeas proceedings).

The Missouri Supreme Court summarily denied the claim without

explanation. Prior to that ruling, there was no Hicks claim to present. See Clemons

v. Mississippi, 494 U.S. 738, 746-47 (1990) (“Capital sentencing proceedings must of

course satisfy the dictates of the Due Process Clause, and we have recognized that

when state law creates for a defendant a liberty interest in having a jury make

particular findings, speculative appellate findings will not suffice to protect that

entitlement for due process purposes.” (first citing Gardner v. Florida, 430 U.S. 349,

358 (1977) (plurality opinion), then citing Hicks, 447 U.S. 343); see also Thompson

v. Missouri Bd. Of Parole, 929 F.2d 396, 401 n.10 (8th Cir. 1991) (“This contention

10

was raised before the district court as point 3 in Thompson’s pleading entitled

‘Supplemental Support for Issuance of Writ of Habeas Corpus.’ Although this claim

is based on state law, a state’s failure to abide by its own laws that results in a

deprivation of liberty constitutes a violation of the due process clause of the

Fourteenth Amendment.” (citing Hicks, 447 U.S. at 346)); cf. Ross v. Oklahoma, 487

U.S. 81, 88-89 (1988) (“[T]he ‘right’ to peremptory challenges is ‘denied or impaired’

only if the defendant does not receive that which state law provides.”). Furthermore,

because the state has never disclosed the identity of the clerk who completed Juror

28’s qualification form or the identity of the person who destroyed the forms; in

spite of a direct question in voir dire, Juror 28 did not disclose his inability to read;

and Juror 28 did not disclose his inability to read to Mr. Tisius until after the

conclusion of his federal habeas proceedings, Mr. Tisius did not have a fair

opportunity to present the claim in his first federal habeas petition. See, e.g.,

Jimerson v. Payne, 957 F.3d 916, 927 (8th Cir. 2020) (“[D]ue diligence does not

require a defendant to root out information that the State kept hidden.”); Julian v.

Hanna, 732 F.3d 842, 849 (7th Cir. 2013) (Posner, J.) (finding petitioner’s “Brady

claim was ripe” no earlier than when “[t]he exculpatory evidence had been

revealed”); cf. McDonough v. Smith, 139 S. Ct. 2149, 2159 (2019) (holding time to

bring 42 U.S.C. § 1983 malicious-prosecution claim based on fabricated evidence

accrues not from earliest date plaintiff becomes aware of fabricated evidence, but

from later date of favorable termination of proceedings against him).

11

This Court has repeatedly held habeas petitioners are entitled to “‘presume

that public officials have properly discharged their official duties[,]’” Banks v.

Dretke, 540 U.S. 668, 698 (2004) (quoting Bracy v. Gramley, 520 U.S. 899, 909

(1997)), and would not, for example, assist a juror in concealing the fact that he

was disqualified from jury service. This Court further recognizes a “presumption

of honesty and integrity in those serving as adjudicators.” Withrow v. Larkin, 421

U.S. 35, 47 (1975). Accordingly, a petitioner is not at fault for failing to bring a

juror misconduct case earlier when “[t]he trial record contains no evidence which

would have put a reasonable attorney on notice that [a juror’s] nonresponse was a

deliberate omission of material information.” Williams v. Taylor, 529 U.S. 420,

442 (2000).

Here, Mr. Tisius is certainly not at fault for failing to bring his claim

earlier. At his resentencing, he relied on the presumption that all the officials

involved, including courthouse employees, properly conducted themselves. Banks,

540 U.S. at 698. He trusted that no courthouse employee would, upon being told

that a juror was unable to read and could not fill out his qualification form, secret

that juror into a private room, read him the form word for word, fill in the juror’s

answers for him, then have the juror sign it. It is absurd to find, as the Eighth

Circuit implicitly did, that Mr. Tisius should have regarded every official with

suspicion. It is equally absurd to find that Mr. Tisius should have investigated

any and every possibility of juror misconduct when there was nothing in the

record to suggest that there any such juror misconduct even existed due to

concealment by both a courthouse employee and the juror himself. Williams, 529

12

U.S. at 442. Assuming that his resentencing proceeding was being carried out

normally and that those involved were performing their duties properly and

honestly, Mr. Tisius and his defense team were provided no inkling that

something was amiss with Juror 28.

Juror 28 did not disclose his inability to read to Mr. Tisius until after the

conclusion of his federal habeas proceedings. Mr. Tisius’s Hicks claim did not

become ripe, or even exist, until the Missouri Supreme Court refused to follow its

own law regarding the automatic prejudice resulting from the petit jury service of

an unqualified juror. Mr. Tisius did not have a fair opportunity to raise this claim

in his initial habeas corpus proceedings.

B.

Whether a petitioner has had a fair opportunity to raise his claim

earlier governs the determination of whether a claim is “second or

successive.”

1.

This Court historically has focused on whether a petitioner has had

a fair opportunity to present his claim.

When a habeas petition presents a claim that did not become ripe for review

until after the conclusion of the petitioner’s federal habeas proceedings, this Court

has determined that the habeas petition in question is not a second or successive

petition within the meaning of § 2244(b). Magwood, 561 U.S. 320; Panetti, 551 U.S.

930; Stewart v. Martinez-Villareal, 523 U.S. 637 (1999). These cases center on

ripeness. Nooner v. Norris, 499 F.3d 831, 834-35 (8th Cir. 2007) (Nooner’s

supplemental habeas application raising a claim that the state was violating his

right of access to the courts was filed when his claim first ripened, and was not

13

subject to the statutory bar set out in § 2244(b)); Crouch v. Norris, 251 F.3d 720,

723-25 (8th Cir. 2010) (Crouch’s second habeas petition raising a claim stemming

from the state’s refusal to grant him parole was not a “second or successive” petition

under § 2244(b) because the alleged violation occurred after the denial of his first

petition); Morgan v. Javois, 744 F.3d 525, 527 (8th Cir. 2013) (petition challenging

continued confinement after finding of not guilty by reason of insanity was not

subject to § 2244(h) because it did not become ripe until the state court ruled on the

continued confinement). Because the Hicks allegations in the supplemental petition

just recently became ripe for review, the supplemental petition is not a second or

successive petition within the meaning of § 2244(b), and the lower court opinion

conflicts with relevant decisions of this Court.

The term “second or successive” in § 2244(b) is “a term of art” that is “not selfdefining.” Panetti, 551 U.S. at 943-44. Instead, the term “takes its full meaning”

from Supreme Court case law, including pre-AEDPA cases. Id at 944; see also Slack

v. McDaniel, 529 U.S. 473, 486 (2000) (“The phrase ‘second or successive petition’ is a

term of art given substance in our prior habeas corpus cases.”). In Felker v. Turpin,

518 U.S. 651 (1996), the Court found § 2244(b) is “within the compass” of “what is

called in habeas corpus practice ‘abuse of the writ,’” a doctrine that is “‘a complex

and evolving body of equitable principles informed and controlled by historical

usage, statutory developments, and judicial decisions.’” 518 U.S. at 664 (quoting

McCleskey, 499 U.S. at 489).

Applying that doctrine “[i]n the usual case, a petition filed second in time and

not otherwise permitted by the terms of § 2244 will not survive AEDPA’s ‘second or

14

successive’ bar. There are, however, exceptions.” Panetti, 551 U.S. at 947.

Panetti considered one such exception, a claim that the petitioner was

incompetent for execution and the state court did not afford him the hearing on that

claim that due process required under Ford v. Wainwright, 477 U.S. 399 (1986). 6

Although the signs of Panetti’s mental illness were a matter of record from at least

the time of trial, 551 U.S. at 936-38, federal courts are not “able to resolve a

prisoner’s Ford claim before execution is imminent.” Id. at 946.

Under those circumstances, this Court held the “statutory bar on ‘second or

successive’ applications does not apply to a Ford claim brought in an application

filed when the claim is first ripe.” Id. at 947. In reaching that conclusion, this Court

relied upon three factors: (1) the practical effects or perverse implications for habeas

practice by reading ‘second or successive’ literally for a specific class of claims, (2)

whether allowing such claims would be consistent with AEDPA’s purposes,

including promoting comity, finality, and federalism, and (3) the history of habeas

jurisprudence, including the common law abuse-of-the-writ doctrine. See Panetti,

551 U.S. at 942-45; see also United States v. Lopez, 577 F.3d 1053, 1056 (9th Cir.

2009) (distilling Panetti’s test).

Three years later, in Magwood, the Court decided that a “fair-warning claim”

that was available to the petitioner at the time of his first petition, was not barred

as “second or successive” because, between the filing of the first and second petition,

6 Panetti answered a question left open in another the case of another second-in-

time petition raising a Ford claim, Stewart v. Martinez-Villareal, 523 U.S. 637

(1998). Panetti, 551 U.S. at 943.

15

the state court had entered a new judgment. 561 U.S. at 342. The Court clarified

that this additional exception “neither purports to alter nor does alter our holding in

Panetti.” Id. at 343 (Breyer, J., concurring); id. at 335 n.11.

Three concurring Justices agreed with the four-Justice dissent that “if

Magwood were challenging an undisturbed state-court judgment for the second

time, abuse-of-the-writ principles would apply, including Panetti’s holding that an

‘application’ containing a ‘claim’ that ‘the petitioner had no fair opportunity to raise’

in his first habeas petition is not a ‘second or successive’ application.” Id. at 343

(quoting id. at 345 (Kennedy, J., dissenting)). That is, under Panetti, “a court must

look to the substance of the claim the application raises and decide whether the

petitioner had a full and fair opportunity to raise the claim in the prior application.”

Id. at 345 (Kennedy, J., dissenting).

The Magwood Justices’ distillation of a “fair opportunity” rule from Panetti is

not a new gloss. 7 One month after this Court first articulated the abuse-of-writ

doctrine in Salinger v. Loisel, 265 U.S. 224 (1924), the Court held that a petitioner

must have had “full opportunity to offer proof” of a claim in a first habeas

proceeding to trigger an abuse of the writ with a second petition. Wong Doo v. United

States, 265 U.S. 239, 241 (1924). And this interpretation of § 2244(b) is in line with

prior cases from this Court which analyzed the very nature and purpose of the writ

7 Cf. Boumediene v. Bush, 553 U.S. 723, 774 (2008) (“The provisions at issue in

Felker, however, did not constitute a substantial departure from common-law

habeas procedures. The provisions, for the most part, codified the longstanding

abuse-of-the-writ doctrine.”).

16

itself. Johnson v. Zerbst, 304 U.S. 458, 467 (1938) (“To deprive a citizen of his only

effective remedy would not only be contrary to the ‘rudimentary demands of justice’

but destructive of a constitutional guaranty specifically designed to prevent

injustice.”).

That rule, this Court held in Panetti, “is confirmed” by considering AEDPA’s

“design . . . to ‘further the principles of comity, finality, and federalism.’” Panetti,

551 U.S. at 945 (quoting Miller–El v. Cockrell, 537 U.S. 322, 337 (2003)). It also

avoids unwanted “practical effects” such as petitioners “‘forever losing their

opportunity for any federal review of their unexhausted claims.’” Id. at 945-46

(quoting Rhines v. Weber, 544 U.S. 269, 275 (2005)).

This Court’s incorporation of abuse-of-the-writ principles into the “second or

successive” determination 8 also is consistent with other cases that found AEDPA

did not “‘displace courts’ traditional equitable authority.’” McQuiggin v. Perkins, 569

U.S. 383, 397 (2013) (quoting Holland v. Florida, 560 U.S. 631, 646 (2010)). “A

federal habeas court’s power to excuse these types of defaulted claims [i.e., those not

presented in a first federal petition] derives from the court’s equitable discretion.”

McCleskey, 499 U.S. at 490.

In short, this Court has directed that § 2244(b) must be interpreted in light of

the “purposes” of AEDPA and “the practical effects of [this Court’s] holdings.”

Panetti, 551 U.S. at 945-46. These principles dictate that because the Hicks

8 Magwood, 561 U.S. at 341 (Kennedy, J., dissenting) (§ 2244(b) “incorporates the

pre-AEDPA abuse-of-the-writ doctrine”).

17

allegations in the supplemental petition just recently became ripe for review, Mr.

Tisius did not have a fair opportunity to present them earlier.

2.

The Eighth Circuit’s decision is inconsistent with § 2244(b)’s

principles of finality and federalism.

Section 2244(b)(2) furthers principles of finality by narrowing the

circumstances in which a previously unavailable claim may be raised in a “second or

successive” petition. But recognizing a narrow exception to § 2244(b)’s application

for Mr. Tisius’s previously unavailable claim does not offend principles of finality. In

fact, exempting claims which attack the fundamental fairness of a criminal trial

from finality rules was the express intention of the authors of the doctrines

Congress codified in § 2244(b)(2). A claim related to due process and juror

misconduct that became available only after an initial petition is such a claim.

Congress’s decision to allow consideration of successive petitions raising

previously unavailable retroactive rules, § 2244(b)(2)(A), and constitutional

violations bearing on innocence, § 2244(b)(2)(B), tracks the views of the jurists who

crafted the anti-retroactivity doctrine and the innocence gateway, including Judge

Henry Friendly. Henry Friendly, Is Innocence Irrelevant? Collateral Attack on

Criminal Judgments, 38 U. Chi. L. Rev. 142, 151 (1970). Significantly, Judge

Friendly exempted a previously unavailable claim of judicial bias from the ambit of

their now operative rules.

Judge Friendly maintained that an innocence requirement should not apply

in cases where “the criminal process itself has broken down; the defendant has not

had the kind of trial the Constitution guarantees.”; see also id. at 151-152 (arguing

18

that another structural error, racial discrimination in jury selection, should not be

subject to innocence requirement). Like the claims excluded by Judge Friendly, Mr.

Tisius’s unqualified juror claim concerns “the very basis of the criminal process,”

such that collateral attack would be appropriate “regardless of the defendant’s

guilt.” Id. at 152.

Contrary to AEDPA’s purposes and this Court’s decisions, the Eighth Circuit

failed to apply an abuse-of-writ analysis to Mr. Tisius’s Hicks claim, including

whether he had a fair opportunity to raise his claim in his initial petition. As shown

above, due to the court and juror’s concealment of the juror’s inability to read until

after the conclusion of Mr. Tisius’s federal habeas proceedings, Mr. Tisius did not

have a fair opportunity to present his claim at an earlier time. A long line of cases

from this Court hold harmless habeas petitioners whose delay in presenting, or

fully developing, claims was attributable to the failure of a public official to act

properly. See Banks, 540 U.S. at 693-94; Strickler v. Greene, 527 U.S. 263, 283

(1999); Amadeo v. Zant, 486 U.S. 214, 222 (1988); Murray v. Carrier, 477 U.S. 478,

488 (1986); cf. Williams, 529 U.S. at 440-43 (holding petitioner did not “fail[] to

develop the factual basis for his claim in state court,” 28 U.S.C. § 2254(e)(2), because

“underdevelopment” of factual basis was “attributable to [juror] and [prosecutor], if

anyone”). Like the defendants in Banks and Strickler who relied upon the

presumption that their prosecutors were telling the truth about meeting their

discovery obligations, Mr. Tisius relied upon the “presumption of honesty and

integrity in those serving as adjudicators[,]” Withrow, 421 U.S. at 47, such as Juror

19

28, and Mr. Tisius had no reason to know that court officials assisted Juror 28 in

concealing his inability to read.

Under the appropriate abuse-of-the-writ analysis, Mr. Tisius did not have a

fair opportunity to present his claim earlier. The Eighth Circuit opinion is conflicts

with these principles and decisions of this Court requiring their application in this

case.

C.

Barring Mr. Tisius’s claim would be inconsistent with AEDPA’s

purposes and would produce absurd results.

There is no question that the “[f]ailure to strike an unfit juror is structural

error. . . .” Dorsey, 448 S.W.3d at 299; see also Strong, 263 S.W.3d at 647; Mayes, 63

S.W.3d at 625; Gray, 481 U.S. at 668. The petit jury service of an unqualified juror

affected the “entire conduct of the trial from beginning to end,” Arizona v.

Fulminante, 499 U.S. 279, 309-10 (1991), and “cause[d] fundamental unfairness,

either to the defendant in the specific case or by pervasive undermining of the

systemic requirements of a fair and open judicial process.” Weaver v.

Massachusetts, 137 S. Ct. 1899, 1911 (2017). Such claims require “automatic

reversal.” Id. at 1912. However, until the Missouri Supreme Court failed to follow

its own law regarding juror qualifications and the automatic prejudice resulting

from the service of an unqualified juror, there was no claim to present. See, e.g.,

Clemons, 494 U.S. at 746-47; Thompson v, 929 F.2d at 401 n.10; cf. Ross, 487 U.S.

at 88-89.

Treating claims like Mr. Tisius’s as “second or successive” leads to illogical

results which are certainly not in line with this Court’s precedent or AEDPA’s

20

purpose in providing a full and fair opportunity to be heard. It would force defense

counsel to investigate every possible issue with every possible juror before there

even arises any indication there might be a juror issue. See Porter v. Singletary, 49

F.3d 1483, 1489 (11th Cir. 1985). To reserve their full and fair opportunity to

present a potential claim, petitioners would have to bring juror misconduct

allegations in their initial habeas petition even though the factual basis for such

claims would be “factually unsupported”—at that point, such a claim would be a

“mere formality, to the benefit of no party.” Panetti, 551 U.S. at 947. To find that

Mr. Tisius should have earlier brought a claim that Juror 28 could not read when he

had no reason to believe that Juror 28 was illiterate, and when the illiteracy was

actively concealed from him, is nonsensical.

Furthermore, even though Mr. Tisius had no reason to know that Juror 28

could not read and that the jury was improperly composed, Mr. Tisius’s appellate

defense counsel did attempt to initiate an investigation into the juror’s

qualifications. App. p. 13a (Attachment, Jeannie Willibey Affidavit). But counsel’s

investigation was thwarted, once again, by the state. Even though less than a year

had passed since the conclusion of Mr. Tisius’s resentencing proceeding and even

though Mr. Tisius’s appeals were still ongoing, the county clerk’s office had already

destroyed the juror forms. Id. Thus, Mr. Tisius’s attempts certainly constituted due

diligence. See, e.g., Jimerson, 957 F.3d at 927:

While evidence is ‘new’ if it was not available at the time of trial

through the exercise of due diligence, due diligence does not require a

defendant to root out information that the State kept hidden. The

State cannot play ‘hide and seek’ with information it was required to

disclose and then accuse defense counsel of lacking due diligence. Due

21

diligence does not require defense counsel to possess psychic abilities

and discover potentially favorable evidence during trial that the State

chose to conceal, particularly when defense counsel specifically

requested disclosure of the evidence now at issue.”

(internal citations omitted)).

See also Jefferson v. United States, 730 F.3d 537, 544 (6th Cir. 2013) (“We do not

fault Jefferson for failing to scavenge for evidence of undisclosed promises when he

already repeatedly asked for disclosure and the evidence was unconstitutionally

withheld by the government.”); Aron v. United States, (291 F.3d 708, 712 (11th Cir.

2002) (“[D]ue diligence . . . does not require a prisoner to undertake repeated

exercises in futility or to exhaust every imaginable option, but rather to make

reasonable efforts.”).

Although the district court recognized that Mr. Tisius was raising a new

claim, in deciding whether this new claim was presented in a second or successive

application, that court did not have enough information to decide whether Mr.

Tisius had a fair opportunity to raise his claim in his initial petition. Rather, the

court found that an evidentiary hearing was necessary to make that determination

because of a factual dispute, and, due to (1) Mr. Tisius’s likelihood of success on the

merits; (2) the relative harm to the parties; and (3) the extent to which the Mr.

Tisius had not unnecessarily delayed his claims, the court stayed the execution. The

Eighth Circuit, on the other hand, resolved the factual dispute without evidence and

simply determined that the petition was a second or successive application. As part

of this determination, the court found that “the new claim could have been timely

22

investigated by counsel and raised in earlier habeas proceedings but was not.” (App.

p. 2a). The court did not state any basis for this conclusion. There is none.

Under Panetti and Magwood, a court must look to the substance of the claim

the application raises and decide whether the petitioner had a fair opportunity to

raise the claim in the prior application. As shown above, factors external to Mr.

Tisius’s defense obstructed his earlier investigations into the facts underlying the

claim. Mr. Tisius’s counsel was diligent, and because of that diligence, any failure to

present evidence that had been concealed from them should not be held against Mr.

Tisius. The Eighth Circuit’s failure to consider whether Mr. Tisius had a fair

opportunity to raise the claim in a prior application, and its determination that the

claim could have been raised earlier and is governed by the restrictions in § 2244(b),

conflicts with relevant decisions of this Court.

Mr. Tisius’s case is rife with due process violations. The seating of Juror 28

on the jury and Juror 28’s participation in sentencing Mr. Tisius to death deprived

Mr. Tisius of not only the qualified jury Missouri statute guarantees, but also “[the]

fair trial in a fair tribunal” due process of law requires. In re Murchison, 349 U.S.

133, 136 (1955). The Missouri Supreme Court refused to follow its own law and to

enforce the rights it guaranteed to Mr. Tisius, creating yet further due process

violations. And now the Eighth Circuit Court of Appeals has completely denied Mr.

Tisius the opportunity to have his claim heard. Mr. Tisius has been deprived the

fair opportunity to present his claim that AEDPA and this Court require.

23

II.

The district court correctly found that factual development is needed.

The state court record that was before the court below reflected a factual

dispute about whether the juror was in fact illiterate and whether state action

concealed the fact. 28 U.S.C. § 2254(e) does not bar an evidentiary hearing in

district court. Williams, 529 U.S. at 440-43; Williams v. Norris, 612 F.3d 941, 959

(8th Cir. 2010) (recognizing that under Williams, “28 U.S.C. § 2254(e)(2) [does] not

prevent the petitioner from developing his claim of juror misconduct in federal

court.”); Simpson v. Norris, 490 F.3d 1029, 1035 (8th Cir. 2007) (discussing

Williams and finding that “the district court incorrectly required Mr. Simpson to

meet the requirements of § 2254(e)(2) before holding an evidentiary hearing”

because counsel did not lack diligence in developing the factual basis in state court).

The Eighth Circuit ignored that a court always has jurisdiction to determine its

jurisdiction, which was the basis for the district court order. “[F]ederal courts have

‘jurisdiction to determine jurisdiction,’ that is, ‘power to interpret the language of

the jurisdictional instrument and its application to an issue by the court.’” Kansas

City S. Ry. Co. v. Great Lakes Carbon Corp., 624 F.2d 822, 825 (8th Cir. 1980)

(quoting Stoll v. Gottlieb, 305 U.S. 165, 171 (1938); see also Smith v. Armontrout,

604 F. Supp. 840, 843 (W.D. Mo. 1984) (“It is well-settled that federal courts always

have jurisdiction to determine jurisdiction.”) Thus, this Court should grant

24

certiorari, reverse the decision of the Eighth Circuit, and remand to the district

court for factual development. 9

9 Also pending before this Court is Tisius v. Vandergriff, No. 22-7699. This petition

concerns the failure of the Missouri Supreme Court to either grant relief or allow

factual development. Both petitions were filed because Mr. Tisius, who will

otherwise shortly lose his life, is entitled to have this important issue considered in

at least one forum.

25

CONCLUSION

This Court should grant certiorari to resolve this important question.

Respectfully Submitted,

/s/ Elizabeth Unger Carlyle

ELIZABETH UNGER CARLYLE*

Carlyle Parish LLC

6320 Brookside Plaza, #516

Kansas City, MO 64113

Mo. Bar No. 41930

(816) 525-6540

elizabeth@carlyleparishlaw.com

KEITH O’CONNOR

Keith O’Connor, LLC

PO Box 22728

Kansas City, MO 64113

Mo Bar No. 63134

Phone: 816-225-7771

Keith@keithoc.comdistrict court

LAURENCE E. KOMP

Capital Habeas Unit, Chief

Federal Public Defender

Western District of Missouri

1000 Walnut St., Ste. 600

Kansas City, MO 64106

(816) 471-8282

laurence_komp@fd.org

*Counsel of Record, Member of the Bar of the Supreme Court

*Counsel of Record, Member of the Bar of the Supreme Court

COUNSEL FOR PETITIONER

26