Petition for Writ of Certiorari — George Stephenson, Warden, Petitioner v. Lafayette Deshawn Upshaw

No. _________

In the Supreme Court of the United States

GEORGE STEPHENSON, WARDEN, PETITIONER

v.

LAFAYETTE DESHAWN UPSHAW

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Dana Nessel

Michigan Attorney General

Ann M. Sherman

Solicitor General

Counsel of Record

P.O. Box 30212

Lansing, Michigan 48909

ShermanA@michigan.gov

(517) 335-7628

Jared D. Schultz

Assistant Attorney General

Criminal Appellate and

Parole Appeals Division

Attorneys for Petitioner

i

QUESTIONS PRESENTED

Under 28 U.S.C. § 2254(d)(1), a federal court may

grant relief on a claim that was adjudicated by a state

court only if that adjudication was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme

Court.” The phrase “clearly established Federal law,

as determined by the Supreme Court” refers to the

holdings of this Court. Williams v. Taylor, 529 U.S.

362, 412 (2000). And to evaluate whether a decision is

“contrary to, or involved an unreasonable application

of,” a holding of this Court, a federal court must apply

substantial deference to the state court’s decision and

may grant relief only if that decision “was so lacking

in justification that there was an error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” Harrington

v. Richter, 562 U.S. 86, 103 (2011). The questions presented are:

1. Does a rule announced in a four-Justice plurality opinion constitute a holding of this Court, and

therefore “clearly established Federal law” under

§ 2254(d)(1), when no other Justice adopted—either

explicitly or implicitly—the plurality’s rule or any reasoning supporting that rule?

2. Did the Sixth Circuit violate § 2254(d)(1)’s

strict limitations when it independently analyzed the

prejudice prong of an ineffective-assistance claim

without addressing the state court’s prejudice analysis or explaining why the state court’s opposite conclusion was “beyond any possibility for fairminded disagreement”?

ii

PARTIES TO THE PROCEEDING

Petitioner George Stephenson was the Warden at

the correctional facility where Respondent Lafayette

Upshaw was being held in custody while the case was

pending in the district court.

RELATED CASES

•

People v. Walker, Michigan Court of Appeals,

Docket No. 325195, Opinion issued May 19, 2016

(affirming conviction).

•

People v. Upshaw, Michigan Supreme Court,

Docket No. 154101, Order issued April 4, 2017,

(denying leave to appeal).

•

Upshaw v. Stephenson, United States District

Court for the Eastern District of Michigan, Opinion and Order issued July 14, 2022 (granting petition for writ of habeas corpus).

•

Upshaw v. Stephenson, United States Court of Appeals for the Sixth Circuit, Judgment issued

March 28, 2024 (affirming district court).

iii

TABLE OF CONTENTS

Questions Presented .................................................... i

Parties to the Proceeding ........................................... ii

Related Cases .............................................................. ii

Table of Authorities ................................................... vi

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

Jurisdiction ................................................................. 1

Constitutional and Statutory Provisions Involved .... 2

Introduction ................................................................ 3

Statement of the Case ................................................ 5

Reasons for Granting the Petition ........................... 11

I.

The Sixth Circuit’s reliance on the

Hernandez plurality’s mootness rule

contradicts AEDPA, this Court’s precedents,

and the Eleventh Circuit.................................... 11

A. Under AEDPA, a federal court must

identify a “holding” of this Court before

granting habeas relief. ................................. 11

B. Under this Court’s precedents, the

plurality’s mootness rule is not “clearly

established Federal law.”............................. 13

1. The mootness rule from Hernandez

did not garner the votes of five

Justices. ................................................. 13

2. Because the mootness rule is not the

narrowest grounds of the Hernandez

opinions, it cannot be a holding. ........... 16

iv

C. The Sixth Circuit’s treatment of the

plurality’s mootness rule conflicts with

the Eleventh Circuit’s. ................................. 18

II. The Sixth Circuit’s refusal to apply AEDPA

deference warrants this Court’s intervention. .. 20

Conclusion ................................................................. 24

PETITION APPENDIX TABLE OF CONTENTS

United States Court of Appeals

for the Sixth Circuit

Opinion in 22-1705

Issued March 28, 2024 ...................................... 1a–26a

United States Court of Appeals

for the Sixth Circuit

Judgment in 22-1705

Issued March 28, 2024 ............................................ 27a

United States District Court

Eastern District of Michigan

Case No. 20-cv-12560

Order Lifting Stay

Issued May 6, 2024 ......................................... 28a–29a

United States Court of Appeals

for the Sixth Circuit

Mandate in 22-1705

Issued May 1, 2024 ................................................. 30a

United States Court of Appeals

for the Sixth Circuit

Order in 22-1705

Issued April 23, 2024 ...................................... 31a–33a

v

United States District Court

Eastern District of Michigan

Case No. 20-cv-12560

Opinion and Order Granting Respondent’s

Motion for a Stay Pending Appeal

Issued November 10, 2022.............................. 34a–36a

United States District Court

Eastern District of Michigan

Case No. 20-cv-12560

Opinion and Order Granting Petition for a

Writ of Habeas Corpus

Issued July 14, 2022 ....................................... 37a–93a

United States District Court

Eastern District of Michigan

Case No. 20-cv-12560

Judgment

Issued July 14, 2022 ....................................... 94a–95a

United States District Court

Eastern District of Michigan

Case No. 20-cv-12560

Opinion and Order Granting an

Evidentiary Hearing and Petitioner’s

Motion for Summary Judgment

Issued May 2, 2022 ....................................... 96a–131a

Michigan Supreme Court

Case No. 154101

Order

Issued April 4, 2017 .................................... 132a–133a

Court of Appeals

Case No. 325195

Opinion

Issued May 19, 2016 ................................... 134a–156a

vi

TABLE OF AUTHORITIES

Cases

Animal Legal Defense Fund v. Reynolds,

8 F.4th 781 (8th Cir. 2021) ................................. 16

Apodaca v. Oregon,

406 U.S. 404 (1972) ............................................ 17

Batson v. Kentucky,

476 U.S. 79 (1986) .......................................... 6, 12

Bell v. Cone,

535 U.S. 685 (2002) ............................................ 22

Braxton v. Gansheimer,

561 F.3d 453 (6th Cir. 2009) .............................. 20

Brecht v. Abrahamson,

507 U.S. 619 (1993) .............................................. 3

Brown v. Davenport,

596 U.S. 118 (2022) ............................................ 24

Central Alabama Fair Housing Center, Inc., v.

Lowder Realty Co., Inc.,

236 F.3d 629 (11th Cir. 2000) ............................ 19

Drain v. Woods,

595 F. App’x 558 (6th Cir. 2014) ........................ 20

Gregg v. Georgia,

428 U.S. 153 (1976) ............................................ 16

Harrington v. Richter,

562 U.S. 86 (2011) ..................................... i, 21, 22

Hernandez v. New York,

500 U.S. 352 (1991) ............ 3, 8, 11, 12, 13, 14, 15

vii

Hughes v. United States,

584 U.S. 675 (2018) ............................................ 16

King v. Moore,

196 F.3d 1327 (11th Cir. 1999) .......................... 19

King v. Palmer,

950 F.2d 771 (D.C. Cir. 1991) ............................ 16

Knowles v. Mirzayance,

556 U.S. 111 (2009) ............................................ 22

Lancaster v. Adams,

324 F.3d 423 (6th Cir. 2003) .............................. 20

Marks v. United States,

430 U.S. 188 (1977) ............................ 3, 13, 16, 18

Matthews v. Abramajtys,

319 F.3d 780 (6th Cir. 2003) ................................ 9

Ramos v. Louisiana,

590 U.S. 83 (2020) .............................................. 17

Schriro v. Landrigan,

550 U.S. 465 (2007) ............................................ 22

Sexton v. Beaudreaux,

585 U.S. 961 (2018) ............................................ 24

Shoop v. Cassano,

142 S. Ct. 2051 (2022) ........................................ 20

Stewart v. Wolfenbarger,

468 F.3d 338 (6th Cir. 2006) ................................ 9

Strickland v. Washington,

466 U.S. 668 (1984) ............................................ 22

United States v. Davis,

825 F.3d 1014 (9th Cir. 2016) ...................... 16, 17

viii

United States v. Ochoa-Vasquez,

428 F.3d 1015 (11th Cir. 2005) .......................... 19

United States v. Santos,

553 U.S. 507 (2008) ............................................ 16

United States v. Saylor,

626 F. App’x 802 (11th Cir. 2015) ...................... 19

United States v. Stewart,

65 F.3d 918 (11th Cir. 1995) .............................. 19

Upshaw v. Michigan,

583 U.S. 965 (2017) .............................................. 8

Wiggins v. Smith,

539 U.S. 510 (2003) ............................................ 23

Williams v. Taylor,

529 U.S. 362 (2000) ............................. i, 12, 18, 21

Statutes

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

28 U.S.C. § 2254(b)(1)(A) .......................................... 11

28 U.S.C. § 2254(d) ..................................................... 2

28 U.S.C. § 2254(d)(1) ........................ i, 2, 3, 11, 13, 18

Constitutional Provisions

U.S. Const. amend. VI ................................................ 2

1

OPINIONS BELOW

The Sixth Circuit’s opinion affirming the district

court’s order granting habeas relief, App. 1a–26a, is

reported at 97 F.4th 365. The district court’s opinion

and order granting habeas relief, App. 37a–93a, is not

reported but is available at 2022 WL 2754155. The

Michigan Supreme Court’s order denying Upshaw’s

application for leave to appeal, App. 132a–133a, is reported at 891 N.W.2d 487. The Michigan Court of Appeals’ opinion affirming Upshaw’s conviction, App.

134a–156a, is not reported but is available at 2016 WL

2942215.

JURISDICTION

The judgment of the court of appeals was entered

on March 28, 2024. Petitioner invokes this Court’s jurisdiction under 28 U.S.C. § 1254(1).

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution provides, “In all criminal prosecutions, the

accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.”

And 28 U.S.C. § 2254(d) provides:

An application for a writ of habeas corpus

on behalf of a person in custody pursuant to

the judgment of a State court shall not be

granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established

Federal law, as determined by the Supreme Court of the United States.

***

3

INTRODUCTION

In 2014, respondent Lafayette Upshaw and an accomplice robbed a gas station. In the process, Upshaw

shot toward the cashier (who was thankfully enclosed

in bullet-proof glass) six times. A Michigan jury found

him guilty, and the Michigan Court of Appeals affirmed. Yet nearly a decade later the Sixth Circuit

granted habeas relief on not just one, but two, bases.

In affording Upshaw this “extraordinary remedy,”

Brecht v. Abrahamson, 507 U.S. 619, 633 (1993), the

Sixth Circuit failed to adhere to the strict limitations

imposed by the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA).

AEDPA prohibits habeas relief unless a state

court’s decision is contrary to “clearly established Federal law, as determined by the Supreme Court”—in

other words, a federal habeas court must point to a

holding of this Court. But what, exactly, is the holding

when this Court issues a fractured decision with no

majority opinion? In Marks v. United States, this

Court said that a fractured decision is a holding of this

Court only as to the “narrowest grounds” on which five

Justices agree. 430 U.S. 188, 193 (1977).

The Sixth Circuit here identified the fractured decision from Hernandez v. New York, 500 U.S. 352, 359

(1991), as a basis to grant habeas relief. But the specific rule that the Sixth Circuit relied on—that the

first step of an equal-protection claim is moot if the

trial court bypassed the issue—was adopted only by

Hernandez’s four-Justice plurality. No other Justice

even discussed—let alone adopted, either explicitly or

implicitly—the plurality’s mootness rule. That rule,

then, is not a holding under the Marks framework.

4

Therefore, the plurality’s rule could not serve as a basis to grant relief. Allowing a non-binding rule from a

plurality opinion to provide the means to upend a

valid and final state conviction contradicts AEDPA,

this Court’s precedents, and the Eleventh Circuit.

This Court should provide guidance to address the applicability of plurality opinions on habeas review.

Compounding its mistake, the Sixth Circuit found

a second reason for granting relief based on its independent review of an ineffective-assistance-of-counsel

claim. In doing so, the court failed to apply the mandatory deference owed to state court opinions.

Though Upshaw claimed his counsel should have

called his grandmother as an alibi witness, the Michigan Court of Appeals reasoned that her testimony

would not have made a difference in the trial’s outcome given the strength of the evidence against

Upshaw. That evidence included the cashier’s unequivocal testimony that Upshaw was the shooter and

Upshaw’s subsequent arrest just hours later as he was

burglarizing a house with his accomplice who was undisputedly at the scene of the shooting. The Sixth Circuit did not address that analysis at all when it determined that Upshaw was prejudiced by counsel’s alleged failure to procure his grandmother’s testimony.

Instead, it relied on its own precedent, along with social-science studies suggesting that eyewitness testimony is unreliable, to undermine the strength of the

prosecutor’s case. The Sixth Circuit never explained

why the state court’s contrary analysis was unreasonable, which this Court has steadfastly maintained is a

requirement under AEDPA. Review is warranted.

5

STATEMENT OF THE CASE

Around 3:30 a.m. on May 28, 2014, a man entered

a gas station in Detroit. App. 135a. The man asked the

cashier about the coffee machine, but he did not get

any coffee and stood silently by the machine. App.

135a. Shortly thereafter, another man—armed with a

gun—entered, robbed a customer, then demanded

money from the cashier. App. 136a. The cashier refused, so the man fired his weapon at her six times.

App. 136a. The shots did not hit their target because

the cashier was standing behind bullet-proof glass.

App. 136a. The armed assailant then tried to break

into the cashier’s work station, but he was unsuccessful and eventually fled the scene. App. 136a. During

the altercation, the suspiciously acting first man remained by the coffee machine, then he fled in the same

direction as the armed assailant. App. 136a. Surveillance footage at the gas station captured the robbery.

App. 137a.

A few hours later, Respondent Lafayette Upshaw

was arrested as he was exiting a window of a house

while committing a home invasion. App. 136a. The police also apprehended Darrell Walker, who was exiting a different window of the same house. App. 136a.

After the police identified Walker on the gas station

surveillance footage as the first man and discovered

that he had been arrested with Upshaw hours later,

the police sought to set up a live lineup, but Upshaw

refused to participate. App. 144a. The cashier later

identified both men in separate photographic

lineups—Upshaw, she said, was the shooter. App.

136a–137a.

6

The two men were tried together. App. 137a. During jury selection, the prosecutor exercised six of her

first eight peremptory challenges against Black jurors. App. 149a. The defense raised an equal-protection challenge under Batson v. Kentucky, 476 U.S. 79

(1986). App. 149a–150a. Without ruling on whether

Upshaw had made a prima facie showing of discriminatory intent, the state trial court asked the prosecutor for a response and ultimately rejected the defense’s challenge. App. 150a–151a.

Upshaw repeated his Batson challenge on appeal

to the Michigan Court of Appeals. App. 148a. In a

lengthy analysis, the state appellate court described

the three steps that a trial court must engage in when

faced with a Batson challenge, noting first that “the

opponent of the peremptory challenge must make a

prima facie showing of discrimination.” App. 148a–

149a (internal quotation omitted). The court described

the trial court’s ruling on that step as “unclear and

muddled.” App. 151a–152a. But “[a]ssuming that the

trial court found that defendants had made a prima

facie case of discrimination,” the court said that was

an erroneous ruling. App. 153a. The court noted that

the defense had failed to make a record or argument

as to the circumstances surrounding the prosecution’s

peremptory challenges, such as “the percentage of jurors of a particular race or ethnicity struck and the

percentage of their representation on the venire,

whether members of the relevant racial group served

unchallenged on the jury, and whether the prosecutor

used all or nearly all of his or her challenges to strike

venire members of a particular race.” App. 152a–153a

(internal quotation omitted). And because the court

was unable to determine those circumstances from the

7

record, it held that Upshaw had not made a prima facie case of discrimination. App. 153a. Given this analysis, the court further held that the remaining two

steps were moot. App. 153a.

Upshaw also argued on appeal that his trial counsel was constitutionally ineffective for failing to investigate and present an alibi defense. App. 146a. He produced a letter from his grandmother in which she

claimed that on the day of the robbery she had fallen

asleep and was awoken by Upshaw knocking on the

door. App. 48a. His grandmother specified that this

occurred “between 3:20 and 3:30 [a.m.]” and that she

knew this because she looked at the time on the television cable box when she heard the knock on the door.

App. 48a. She further wrote that “he left at around

7:45 [a.m.]” and that she knew this because she “was

still upset, sitting on [her] front porch.” App. 48a.

The Michigan Court of Appeals rejected Upshaw’s

ineffective-assistance claim. App. 147a–148a. The

court reasoned that Green’s letter “implied or suggested that Upshaw remained at the home for several

hours, but it did not expressly provide so, nor did [she]

state that she observed him at the exact time of the

robbery.” App. 148a. The court also had noted the evidence against him, including the cashier’s identification, the jury’s ability to observe the surveillance footage, and Upshaw’s arrest with Walker a few hours

later. App. 146a. Consistent with this analysis, the

court held that Upshaw could not show he was prejudiced by counsel’s allegedly deficient performance.

App. 148a. Upshaw appealed that decision to the

Michigan Supreme Court, which denied leave. App.

8

132a. This Court also denied a petition for a writ of

certiorari. Upshaw v. Michigan, 583 U.S. 965 (2017).

After filing collateral motions in the state courts

raising claims not relevant here, Upshaw filed a petition for a writ of habeas corpus in the district court.

He again raised his Batson and ineffective-assistance

claims. With respect to the Batson claim, the district

court pointed to Hernandez v. New York, 500 U.S. 352,

359 (1991), in which four Members of this Court, in a

plurality opinion, stated that the prima facie step of a

Batson analysis becomes moot once the trial court has

ruled on the ultimate question of intentional discrimination. App. 77a. The Michigan Court of Appeals’ decision to rest its analysis on the prima facie step, the

district court held, was an unreasonable application of

Batson and Hernandez. App. 78a. Accordingly, the district court reviewed the claim without the deference

required under § 2254(d) and found that the state

trial court erred when applying Batson’s second and

third steps. App. 78a–88a. Specifically, the court

noted that the prosecutor offered race-neutral reasons

for only three out of its six peremptory challenges.

App. 83a, 87a. And as to those three, the trial court

did not sufficiently determine whether the prosecutor’s race-neutral reasons were pretextual. App. 84a–

85a. Holding that a constitutional violation occurred,

the district court determined that a new trial was the

only appropriate remedy. App. 88a–90a.

The district court also granted relief on Upshaw’s

ineffective-assistance claim. In assessing prejudice,

the district court noted that the only evidence of

Upshaw’s guilt presented at trial was identification

testimony from a victim along with undisputed

9

testimony that Upshaw was arrested mere hours after

the robbery committing a home invasion with Walker.

App. 68a–69a. The court found that evidence lacking,

saying that the victim’s ability to identify the robber

was hampered by several factors. App. 68a–69a. As for

Upshaw’s later arrest, the court simply noted that the

Sixth Circuit had “found prejudice in the face of far

more damning evidence” in two other cases, citing

those cases but providing no further comparative

analysis. App. 70a (citing Matthews v. Abramajtys,

319 F.3d 780, 783–84, 789–90 (6th Cir. 2003) and

Stewart v. Wolfenbarger, 468 F.3d 338, 343–44, 357–

59 (6th Cir. 2006)).

The Sixth Circuit affirmed. App. 2a. In evaluating

the Batson claim, the court first addressed the State’s

argument that the Michigan Court of Appeals’ decision was not an unreasonable application of Hernandez because that opinion was not clearly established.

App. 20a–22a. According to the court, the plurality

opinion’s mootness ruling was the narrowest ground

supporting the judgment and therefore sets forth the

controlling, and clearly established, law. App. 21a.

Therefore, the prima facie inquiry in this case was

moot on that basis, and the court ruled that the Michigan Court of Appeals unreasonably applied Hernandez when it nevertheless denied the Batson claim

based on the prima facie step. App. 22a. And, according to the Sixth Circuit, because the state trial court

failed to properly apply steps two and three of the Batson framework, the district court correctly granted habeas relief on the claim. App. 22a–26a.

10

The Sixth Circuit also addressed Upshaw’s ineffective-assistance claim. App. 9a–19a. After determining that counsel’s performance was objectively unreasonable because he failed to investigate and present

Upshaw’s grandmother as an alibi witness, App. 13a–

15a, the court looked to the prejudice prong, App. 16a–

19a. It primarily focused on the purported weakness

of the cashier’s eyewitness-identification testimony,

noting its belief that “[e]yewitness testimony is notoriously unreliable.” App. 16a. In support of this proposition, the court cited several Sixth Circuit opinions,

along with “[e]mpirical studies” showing the supposed

prevalence of mistaken eyewitness identification.

App. 16a–17a. The court then described the State’s

case as “not overwhelming” because, other than the

eyewitness-identification testimony, “the State’s only

evidence against Upshaw was that he had been arrested for home invasion with Walker several hours

after the gas station was robbed.” App. 17a–18a (internal quotations omitted). Without explaining anything more about the circumstances of Upshaw’s arrest, the Court concluded that his grandmother’s testimony that he was with her near the time of the robbery likely would have made a difference in the trial’s

outcome. App. 18a. The court thus affirmed the district court’s decision that habeas relief was warranted

for this claim. App. 19a.

11

REASONS FOR GRANTING THE PETITION

I.

The Sixth Circuit’s reliance on the

Hernandez

plurality’s

mootness

rule

contradicts AEDPA, this Court’s precedents,

and the Eleventh Circuit.

The Sixth Circuit determined that the mootness

rule from the Hernandez plurality opinion constituted

a holding of this Court and was thus “clearly established Federal law” under § 2254(d)(1). That is not a

correct reading of the statute, and it is inconsistent

with this Court’s precedents. It also contradicts the

Eleventh Circuit’s treatment of the Hernandez mootness rule. This Court should determine whether that

rule binds lower courts and resolve the conflict.

A. Under AEDPA, a federal court must

identify a “holding” of this Court before

granting habeas relief.

Before seeking relief in federal court, a prisoner

held under a state criminal judgment must first present his or her claims to the state appellate courts.

§ 2254(b)(1)(A). If the state courts reject a claim on the

merits, AEDPA prohibits a federal court from granting habeas relief unless the state court’s adjudication

“resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme

Court of the United States.” § 2254(d)(1). “[T]he

phrase ‘clearly established Federal law, as determined by the Supreme Court of the United States’ . . .

refers to the holdings, as opposed to the dicta, of this

Court’s decisions as of the time of the relevant state-

12

court decision.” Williams v. Taylor, 529 U.S. 362, 412

(2000) (emphasis added).

The Michigan Court of Appeals adjudicated

Upshaw’s Batson claim on the merits. It identified the

three-step process that this Court outlined in Batson:

(1) the defendant must show a prima facie case of purposeful discrimination; (2) the prosecutor must then

articulate a race-neutral reason for the challenged

strike; and (3) the trial court must determine whether

the prosecutor’s reason was pretextual and whether

the defendant has proved purposeful discrimination.

App. 149a. Although it acknowledged that the trial

court did not make a ruling under the first step, the

Michigan Court of Appeals rejected the claim because

it found that Upshaw had not even made out a prima

facie case of purposeful discrimination. App. 149a–

153a. Its reasoning was practical and sound: there

was no evidence of any relevant circumstances surrounding the prosecutor’s strikes—such as the race of

the other potential jurors, the race of others struck, or

the race of those who served—so Upshaw could not

possibly show that the circumstances raised an inference that the prosecutor struck the jurors based on

race. App. 152a–153a.

To grant habeas relief on this claim, then, the

Sixth Circuit was required to identify a holding of this

Court and show that the state court’s prima facie

analysis was “contrary to, or an unreasonable application of” that holding. Yet the Sixth Circuit did not

point to Batson or any other majority opinion from

this Court as establishing the relevant holding. Rather, it said that the mootness rule contained within

the plurality opinion in Hernandez “provides clearly

13

established law.” App. 21a. It did not explain how the

plurality’s rule could satisfy AEDPA’s strict requirements, other than to conclusorily state that it represented the “ ‘narrowest grounds’ ” of a fragmented

opinion. App. 21a (citing Marks, 430 U.S. at 193). As

discussed in the next section, however, the rule was

not a holding under this Court’s precedents. And, not

being a holding, it cannot establish “clearly established Federal law.” The Sixth Circuit’s habeas grant

based on its assessment that the Hernandez plurality

rule was “clearly established Federal law” was therefore contrary to AEDPA’s plain language.

B. Under this Court’s precedents, the

plurality’s mootness rule is not “clearly

established Federal law.”

This Court has provided direction on how to evaluate fragmented decisions. Under that precedent, the

Hernandez plurality’s mootness rule is not a holding

of this Court and therefore cannot be “clearly established Federal law.” § 2254(d)(1).

1. The mootness rule from Hernandez

did not garner the votes of five

Justices.

In Hernandez, the Court was presented with a

challenge to a prosecutor’s discriminatory use of peremptory strikes under Batson. 500 U.S. at 355 (plurality opinion). The plurality opinion—written by Justice Kennedy and joined by three other justices—reviewed each step of the three-step process for evaluating Batson claims. Id. at 358–70. It began by discussing the first step, which requires a defendant to “make

14

a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race.” Id.

at 358. According to the plurality, “Once a prosecutor

has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the

ultimate question of intentional discrimination, the

preliminary issue of whether the defendant had made

a prima facie showing becomes moot.” Id. at 359. Analyzing step two, the plurality stated that a prosecutor’s strikes could be unconstitutional if they were intended to cause a disparate impact on a certain race

or ethnicity, but it determined that there was no evidence that the prosecutor in the case at bar had such

an intent and, therefore, the prosecutor’s reasons

were race neutral. Id. at 362. Reviewing step three,

the plurality held that the trial court’s decision to believe those race-neutral reasons should be reviewed

for clear error and that the trial court’s decision was

not clearly erroneous. Id. at 359–70.

Justice O’Connor, joined by Justice Scalia, concurred. In the very first paragraph of Justice O’Connor’s opinion, she explained her points of agreement

and disagreement with the plurality:

I agree with the plurality that we review for

clear error the trial court’s finding as to discriminatory intent, and agree with its analysis of this issue. I agree also that the finding

of no discriminatory intent was not clearly erroneous in this case. I write separately because I believe that the plurality opinion goes

further than it needs to in assessing the constitutionality of the prosecutor’s asserted justification for his peremptory strikes.

15

Id. at 372 (O’Connor, J., concurring). Justice O’Connor

then went on to explain that, to show the prosecutor’s

stated reasons for strikes are unconstitutional, it is

necessary to show that the strikes were exercised “because of the juror’s race” and that a disproportionate

effect may only “constitute evidence of intentional discrimination.” Id. at 373 (emphasis in original), 375.

Her disagreement was with the plurality’s discussion

about how to evaluate evidence of a disproportionate

effect on a race or ethnicity. Nowhere in her opinion

did she mention how she would evaluate the prima facie step.

Justice Stevens, joined by Justice Marshall, dissented. 1 In his view, if a prosecutor’s justifications

have a disparate impact, that constitutes objective evidence of discriminatory purpose and may be sufficient by itself to establish an equal protection violation. Id. at 377–78 (Stevens, J., dissenting). Applying

that principle to the facts in Hernandez, Justice Stevens would have found that the prosecutor’s justifications for his strikes were insufficient. Id. at 379. And

in making this finding, he said merely that “[n]either

the Court nor respondent disputes that petitioner

made out a prima facie case”—but he said nothing

about whether the first step was moot. Id.

1 Justice Blackmun also dissented. He filed a short statement

indicating that he agreed with the part of Justice Stevens’s opinion applying the proposed principles to the facts in the case. Hernandez, 500 U.S. at 375 (Blackmun, J., dissenting).

16

2. Because the mootness rule is not the

narrowest grounds of the Hernandez

opinions, it cannot be a holding.

Although a case like Hernandez, which has no majority opinion, can result in confusion, this Court explained how to treat such a circumstance: “When a

fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five

Justices, ‘the holding of the Court may be viewed as

that position taken by those Members who concurred

in the judgments on the narrowest grounds.’ ” Marks

v. United States, 430 U.S. 188, 193 (1977) (quoting

Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)). Put differently, when the votes in an opinion are necessary to

the Court’s judgment, and when that opinion “rests

upon the narrower ground, the Court’s holding is limited accordingly.” United States v. Santos, 553 U.S.

507, 523 (2008).

How, exactly, does a court determine the “narrowest grounds” of a fractured decision? This Court has

not expounded on its now nearly 50-year-old rule.

Hughes v. United States, 584 U.S. 675, 679–80 (2018)

(declining to address the implication the Marks rule

has on 4-1-4 decisions). But there have been two approaches. Under the first, “one opinion can be meaningfully regarded as ‘narrower’ than another[ ]only

when one opinion is a logical subset of other, broader

opinions.” United States v. Davis, 825 F.3d 1014, 1020

(9th Cir. 2016) (quoting King v. Palmer, 950 F.2d 771,

781 (D.C. Cir. 1991)) (en banc) (Silberman, J.); see also

Animal Legal Defense Fund v. Reynolds, 8 F.4th 781,

785 (8th Cir. 2021) (“[W]here a concurring opinion is

not a logical subset of the plurality’s rationale, or vice-

17

versa, it is not possible to discern a holding in the

case.”). “In essence, the narrowest opinion must represent a common denominator of the Court’s reasoning; it must embody a position implicitly approved by

at least five Justices who support the judgment.” Id.

“The second approach looks to results rather than reasoning. It defines the narrowest ground as the rule

that would necessarily produce results with which a

majority of the Justices from the controlling case

would agree.” Id. at 1021 (internal quotation marks

omitted). 2

Under either of these approaches, the plurality’s

mootness rule is not the narrowest grounds in Hernandez. The concurring opinion did not even address

the prima facie step in its analysis, so it is difficult to

see how the plurality’s mootness rule can represent a

common denominator among the opinions. The concurrence’s lack of a discussion about the prima facie

step did not mean that those Justices adopted the

mootness rule. Quite the opposite—had they agreed,

the concurrence would have expressly said so, just like

it did about the plurality’s clear-error determinations.

Nor is agreement implied. The concurrence could have

found, for instance, that the first step was not moot

but that the defendant had made out a prima facie

2 In Ramos v. Louisiana, 590 U.S. 83 (2020), this Court may have

implicitly rejected the results approach. In that case, this Court

ruled that there was no controlling opinion coming from the 4-14 split in Apodaca v. Oregon, 406 U.S. 404 (1972), because no

other Justice adopted the reasoning employed by the concurring

Justice. 590 U.S. at 101–04. Even the Ramos dissent noted that

it was only the “narrow common ground” between the concurring

and plurality opinions that was binding. Id. at 150 (emphasis

added).

18

showing of intentional discrimination. The mootness

rule is therefore not a “logical subset” of the concurrence’s analysis.

Similarly, under the results approach, it is not

known whether the concurring Justices would have

agreed with the mootness rule. Without an explanation, it is not possible to ascertain how the concurring

Justices viewed the issue. Accordingly, faced with a

Batson challenge in which the trial court failed to rule

on the prima facie step, it cannot be said that a majority of the Justices from the controlling case would

agree that an analysis of the first step is moot. And

they thus would not necessarily reach the same result.

Under either approach, the plurality’s opinion—at

least concerning its mootness rule—is not controlling.

It therefore cannot be a “holding” under Marks. Because it is not a holding, Williams instructs that it

cannot be the source by which a habeas court can

grant relief. This Court should clarify that a rule

adopted by only four Justices that is not a holding of

the Court under Marks cannot be “clearly established

Federal law, as determined by the Supreme Court.”

§ 2254(d)(1).

C. The Sixth Circuit’s treatment of the

plurality’s mootness rule conflicts with

the Eleventh Circuit’s.

At least one other federal court of appeals would

have decided this case differently. The Eleventh Circuit has held that, because the mootness language in

Hernandez is contained in a plurality opinion, it is not

binding. United States v. Stewart, 65 F.3d 918, 924

19

(11th Cir. 1995) (stating that the mootness “language

from Hernandez is from a plurality opinion, and plurality opinions do not bind this Court”). See also

United States v. Ochoa-Vasquez, 428 F.3d 1015, 1044

n.38 (11th Cir. 2005) (“We acknowledge that district

courts usually make the prima-facie-case determination under Batson’s first prong. Yet, that is not necessary if, as a matter of law, the defendant’s evidence on

the Batson issue is insufficient to show a prima facie

case.”); Cent. Ala. Fair Housing Ctr, Inc., v. Lowder

Realty Co., 236 F.3d 629, 636 (11th Cir. 2000) (“[T]he

threshold task in considering a Batson challenge, for

a district court as well as this Court, is to determine

whether a prima facie case was established.” (emphasis added); King v. Moore, 196 F.3d 1327, 1334 (11th

Cir. 1999) (rejecting a state prisoner’s Batson claim in

part because he could not show an inference of discrimination, even though the trial court did not make

a determination under the prima facie step); United

States v. Saylor, 626 F. App’x 802, 808 (11th Cir. 2015)

(citing Stewart and declining to apply the Hernandez

mootness rule, in part because it was contained within

a plurality opinion and therefore not binding).

This Court should resolve this conflict. The current rule in the Sixth Circuit allows federal judges to

undo valid and final state-court convictions based on

an analytical framework that a majority of this Court

has never agreed upon. The potential to undermine

the comity and federalism principles that overlay our

habeas jurisprudence is not just hyperbole. This is the

third time the Sixth Circuit has granted habeas relief

after finding that the state court unreasonably failed

to apply the Hernandez plurality’s mootness rule. See

Lancaster v. Adams, 324 F.3d 423, 434–35 (6th Cir.

20

2003) (“[B]ecause the trial court here had ruled on the

ultimate question under Batson . . . the Michigan

Court of Appeals acted unreasonably under Supreme

Court precedent set out in Hernandez when it rested

its holding on an issue that had become moot.”); Drain

v. Woods, 595 F. App’x 558, 570 (6th Cir. 2014) (treating “Hernandez’s mootness holding as clearly established law” before ultimately affirming the district

court’s habeas grant). See also Braxton v. Gansheimer, 561 F.3d 453, 461 (6th Cir. 2009) (finding

that the Ohio Court of Appeals erred when it addressed the prima facie step even though the state

trial court did not rule on it, but denying relief because

the decision also rested on other grounds). It is important to clarify that a state court’s reasonable disagreement with a non-binding legal framework does

not give federal courts license to upend state-court

convictions.

This Court should therefore grant this petition.

II. The Sixth Circuit’s refusal to apply AEDPA

deference

warrants

this

Court’s

intervention.

This Court has not hesitated to correct the Sixth

Circuit when it has not applied the statutory mandated limitations on habeas review. See Shoop v. Cassano, 142 S. Ct. 2051, 2057 (2022) (Thomas, J., dissenting) (“Over the last two decades, we have reversed

the Sixth Circuit almost two dozen times for failing to

apply AEDPA properly.”). It should do so again here.

Upshaw first raised his ineffective-assistance

claim in the Michigan Court of Appeals. He asserted

21

that counsel should have called his grandmother as an

alibi witness because, according to Upshaw, she would

have testified that he was at home near the time of

the gas station robbery. The state court rejected the

claim, in part by finding that Upshaw could not show

prejudice. App. 147a–148a. On top of Upshaw’s refusal to participate in a live lineup, the court explained that the gas station cashier identified Upshaw

in a photographic lineup, the jury saw the surveillance

video of the robbery, and Upshaw was arrested burglarizing a home just hours later with his co-defendant, who was undisputedly at the scene of the gas station robbery. App. 146a. 3

Under AEDPA, “a federal habeas court may not

issue the writ simply because that court concludes in

its independent judgment that the relevant statecourt decision applied clearly established federal law

erroneously or incorrectly. Rather, that application

must also be unreasonable.” Williams, 529 U.S. at

411. This Court has described this high standard as

“difficult to meet.” Harrington v. Richter, 562 U.S. 86,

103 (2011). Indeed, to obtain relief under AEDPA, “a

state prisoner must show that the state court’s ruling

on the claim being presented in federal court was so

lacking in justification that there was an error well

3 The Michigan Court of Appeals did not explicitly include a dis-

cussion of the strength of the prosecution’s case within its prejudice analysis of this issue. App. 148a. But it had just written that

Upshaw could not demonstrate prejudice from the trial court’s

decision to allow evidence that he refused to participate in a live

lineup. App. 146a. In doing so, it noted the strength of the prosecutor’s case, including the facts discussed above. App. 146a.

That those facts were not included within the court’s analysis of

the ineffective-assistance claim means only, in a fair reading,

that it chose not to repeat what had already been said.

22

understood and comprehended in existing law beyond

any possibility for fairminded disagreement.” Id.

The seminal case governing claims of ineffective

assistance of counsel is Strickland v. Washington, 466

U.S. 668 (1984). To succeed on such a claim, a defendant must “show both that his counsel provided deficient assistance and that there was prejudice as a result.” Richter, 562 U.S. at 104. Proving prejudice requires a showing that “there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. That test is onerous: “The

likelihood of a different result must be substantial,

not just conceivable.” Richter, 562 U.S. at 112.

And when the same ineffective-assistance claim is

presented to a federal court in a habeas petition, the

test is even more onerous. Under AEDPA’s stringent

limitations, a habeas petitioner claiming ineffective

assistance of counsel “must do more than show that

he would have satisfied Strickland’s test if his claim

were being analyzed in the first instance.” Bell v.

Cone, 535 U.S. 685, 698–99 (2002). On habeas review,

the question “is not whether a federal court believes

the state court’s determination under the Strickland

standard was incorrect but whether that determination was unreasonable—a substantially higher

threshold.” Knowles v. Mirzayance, 556 U.S. 111, 123

(2009) (quoting Schriro v. Landrigan, 550 U.S. 465,

473 (2007)) (internal quotation marks omitted).

“[B]ecause the Strickland standard is a general standard, a state court has even more latitude to reasonably

determine that a defendant has not satisfied that

standard.” Id. Here, because the state court ruled on

23

the merits of the prejudice prong of Strickland, that

determination is entitled to this high level of deference under AEDPA. See, in contrast, Wiggins v.

Smith, 539 U.S. 510, 534 (2003) (“In this case, our review is not circumscribed by a state court conclusion

with respect to prejudice, as neither of the state courts

below reached this prong of the Strickland analysis.”).

The Sixth Circuit did not faithfully apply that

standard to this case. Indeed, within its four paragraphs dedicated to a prejudice discussion, it never

once cited the Michigan Court of Appeals or explained

how the state court made its determination that no

prejudice occurred. App. 16a–19a. Instead of discussing whether rational jurists could agree with the state

court’s decision, the Sixth Circuit conducted its own

independent review of prejudice. For example, it spent

much of its analysis questioning the reliability of the

cashier’s identification by citing social-science studies

on eyewitness identification that appear nowhere in

the state court record. App. 16a–17a. It also relied on

its own precedents to show that a prejudice finding is

appropriate when the evidence against a petitioner includes eyewitness testimony. App. 16a–17a. And the

court concluded by stating that “[t]he evidence presented at trial was not, as the Warden contends, ‘extremely damning.’ ” App. 19a (emphasis added). But

it is the state court’s evaluation that controls. Yet, the

Sixth Circuit declared its own view of the evidence

and said nothing about the state court’s view of the

evidence.

When addressing the prejudice requirement of

Upshaw’s ineffective-assistance claim, the Sixth Circuit did not even “purport to hold that the Michigan

24

state courts had acted contrary to or unreasonably applied a decision of this Court.” See Brown v. Davenport, 596 U.S. 118, 136 (2022) (holding that AEDPA

requires deference to a state court’s harmless-error

determination). That’s “not just wrong,” but it is also

a “fundamental error[ ] that this Court has repeatedly

admonished courts to avoid.” Sexton v. Beaudreaux,

585 U.S. 961, 967 (2018). The Sixth Court’s decision

on Upshaw’s ineffective-assistance claim warrants

this Court’s review.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Dana Nessel

Michigan Attorney General

Ann M. Sherman

Solicitor General

Counsel of Record

P.O. Box 30212

Lansing, Michigan 48909

ShermanA@michigan.gov

(517) 335-7628

Dated: JUNE 2024

Jared D. Schultz

Assistant Attorney General

Criminal Appellate and

Parole Appeals Division

Attorneys for Petitioner