Amicus Curiae Brief — Brenda Evers Andrew, Petitioner v. Tamika White, Warden

No. 23-6573

(CAPITAL CASE)

IN THE

Supreme Court of the United States

________________

BRENDA EVERS ANDREW,

v.

Petitioner,

TAMIKA WHITE, WARDEN,

________________

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

________________

BRIEF OF AMICI CURIAE HABEAS

SCHOLARS IN SUPPORT OF PETITIONER

________________

Melanie L. Bostwick

Counsel of Record

Thomas M. Bondy

Samantha M. Leff

ORRICK, HERRINGTON &

SUTCLIFFE LLP

2100 Pennsylvania Ave., NW

Washington, DC 20037

(202) 339-8400

mbostwick@orrick.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

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

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

INTRODUCTION AND SUMMARY OF

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

ARGUMENT ............................................................. 4

I.

The Tenth Circuit Misapprehended The

“Clearly Established Federal Law” Set

Out In Payne. ...................................................... 4

A. The Tenth Circuit declined to consider

this Court’s precedent confirming that

Payne set out the “clearly established

federal law” at issue here.............................. 7

B. The Tenth Circuit misunderstood the

inquiry for determining what is

“clearly established federal law.” ............... 12

C. The Tenth Circuit’s decision is unlike

other cases applying § 2254(d)(1)

because it casts doubt on the “clearly

established federal law” itself..................... 18

CONCLUSION ........................................................ 20

Appendix A .............................................................. 1a

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Andrew v. State,

164 P.3d 176 (Okla. Crim. App.

2007) .....................................................................15

Baker v. Steele,

No. 15 CV 1262, 2018 WL 4300203

(E.D. Mo. Sept. 10, 2018) .....................................10

Booth v. Maryland,

482 U.S. 496 (1987) ................................................3

Bowman v. Stirling,

No. 18-287, 2019 WL 8918815

(D. S.C. Dec. 10, 2019) .........................................11

Buck v. Davis,

580 U.S. 100 (2017) .................................. 15, 16, 17

Darden v. Wainwright,

477 U.S. 168 (1986) ............................................3, 6

Davis v. Royal,

No. Civ.-12-1111, 2017 WL 4204031

(W.D. Okla. Sept. 20, 2017) .................................11

Davis v. Straub,

430 F.3d 281 (6th Cir. 2005)................................13

Fairchild v. Trammell,

784 F.3d 702 (10th Cir. 2015)..............................14

Frontiero v. Richardson,

411 U.S. 677 (1973) ..............................................16

Fulcher v. Motley,

444 F.3d 791 (6th Cir. 2006)................................11

iii

Greene v. Fisher,

565 U.S. 34 (2011) ..............................................8, 9

Holland v. Allbaugh,

824 F.3d 1222 (10th Cir. 2016)............................14

Hooks v. Workman,

689 F.3d 1148 (10th Cir. 2012)............................18

Hope v. Pelzer,

536 U.S. 730 (2002) ..............................................17

Kansas v. Carr,

577 U.S. 108 (2016) ............................ 6, 7, 8, 10, 11

Lee v. Illinois,

476 U.S. 530 (1986) ..............................................11

Lilly v. Virginia,

527 U.S. 116 (1999) ..............................................11

Lockyer v. Andrade,

538 U.S. 63 (2003) ............................................2, 12

Matteo v. Superintendent, SCI Albion,

171 F.3d 877 (3d Cir. 1999) ...................................8

Payne v. Tennessee,

501 U.S. 808 (1991) .... 1, 2, 3, 4, 5, 7, 10, 11, 13, 17

Perkins v. Dunn,

No. 14-CV-1814, 2019 WL 4538737

(N.D. Ala. Sept. 19, 2019) ....................................10

Rivera v. Ryan,

No. CV-15-0586, 2016 WL 1622412

(D. Ariz. Mar. 2, 2016) .....................................9, 10

Rose v. Mitchell,

443 U.S. 545 (1979) ..............................................16

iv

Sawyer v. Smith,

497 U.S. 227 (1990) ..............................................13

Stringer v. Black,

503 U.S. 222 (1992) ................................................8

Taylor v. Riojas,

592 U.S. 7 (2020) ..................................................16

Teague v. Lane,

489 U.S. 288 (1989) ................................................8

Turner v. Quarterman,

481 F.3d 292 (5th Cir. 2007)................................18

United States v. Lanier,

520 U.S. 259 (1997) ..............................................17

Williams v. Taylor,

529 U.S. 362 (2000) ...................... 2, 4, 8, 12, 13, 14

Constitutional Provisions

U.S. Const. amend. VIII.......................... 3, 5, 7, 13, 14

U.S. Const. amend. XIV .................. 1, 2, 3, 4, 6, 11, 13

Statutes

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

14, 15, 18, 19

INTEREST OF AMICI CURIAE 1

Amici are law professors who teach and write

about habeas corpus, capital punishment, and constitutional law. A list of amici is attached as Appendix

A. Amici offer their diverse perspectives and deep

knowledge to draw this Court’s attention to a certiorari-worthy case and explain what conclusions the

Tenth Circuit should have reached under the proper

application of this Court’s precedent. Amici sign this

brief in their individual capacities and not on behalf

of their institutions; institutional affiliations are provided solely for identification purposes.

INTRODUCTION AND SUMMARY OF

ARGUMENT

Ms. Brenda Andrew was convicted and sentenced

to death based on irrelevant evidence which served no

purpose other than to sway the jury using sex-based

stereotypes. Ms. Andrew appealed the admission and

use of this evidence, arguing it violated the federal

law articulated in Payne v. Tennessee, 501 U.S. 808,

825 (1991): Admission of unduly prejudicial evidence

that renders the trial fundamentally unfair violates

the Due Process Clause of the Fourteenth Amendment. But the Tenth Circuit denied the existence of

this “clearly established federal law” based on a misinterpretation of this Court’s precedent and a

1 No counsel for a party authored the brief in whole or in

part. No party, counsel for a party, or any person other than

amici and their counsel made a monetary contribution intended

to fund the preparation or submission of the brief. Counsel of

record for all parties received timely notice of the intention to file

this brief.

2

misapplication of the required inquiry into whether

the purported clearly established law existed. For

these reasons, this Court should grant certiorari and

course-correct the dangerous precedent set by the

Tenth Circuit.

Under the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), when a state court has

“adjudicated” a claim “on the merits,” habeas corpus

relief is available if the petitioner establishes that the

adjudication “resulted in a decision that was contrary

to, or involved an unreasonable application of, clearly

established [f]ederal law, as determined by the Supreme Court of the United States.” 28 U.S.C.

§ 2254(d)(1).

In practice, the application of § 2254(d)(1) entails

two steps: (1) a court must determine “what constitutes clearly established [f]ederal law”; and, if there

is relevant “clearly established federal law,” (2) a

court must then determine whether the state court

decision was “contrary to, or involved an unreasonable application of,” that clearly established federal

law. Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003) (citation omitted). The phrase “clearly established federal law” “refers to the holdings” of the Supreme

Court “as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000).

In Payne, this Court set out “clearly established

federal law,” namely, that the admission of “evidence … that is so unduly prejudicial that it renders

the trial fundamentally unfair” violates the Due Process Clause of the Fourteenth Amendment. 501 U.S.

at 825. Tasked with reviewing the admission of

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“victim impact” evidence, this Court revisited the

holding in Booth v. Maryland, 482 U.S. 496 (1987),

which barred all victim impact statements in guiltphase capital sentencing proceedings because they

“do not in general reflect on the defendant’s ‘blameworthiness.’” Payne, 501 U.S. at 817-19. The Payne

Court eliminated this per se bar, explaining that, in

some circumstances, victim impact statements may

serve “legitimate purposes” at the sentencing phase.

Id. at 825. But the Court also made clear that just because evidence may serve a legitimate purpose, this

does not mean it always will serve a legitimate purpose, and so the Court offered a broader guiding principle. Id. Where “evidence is introduced that is so

unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth

Amendment provides a mechanism for relief.” Id. (citing Darden v. Wainwright, 477 U.S. 168, 179-83

(1986) (reviewing whether comments made in the

prosecution’s closing argument “rendered the trial unfair”)). In making this holding, the Payne Court articulated “clearly established federal law.”

The Tenth Circuit, however, misapprehended this

“clearly established federal law,” instead concluding

that Payne did not establish that the admission of unduly prejudicial evidence may violate the Due Process

Clause. According to the Tenth Circuit, “Payne’s central holding [is] more limited,” “merely establish[ing]

that the Eighth Amendment did not erect a ‘per se bar’

to the introduction of victim-impact statements in

capital cases.” Pet. App. 17a. To reach this conclusion,

the Tenth Circuit erred in at least two ways: (1) it refused to consider subsequent Supreme Court precedent that reiterated the “clearly established federal

4

law” set out in Payne and compelled an opposite holding, and (2) it adopted an overly narrow view of what

the inquiry for determining what constitutes “clearly

established federal law” entails.

This Court should grant certiorari—or summarily

vacate and remand—because the Tenth Circuit’s decision not only conflicts with the “clearly established

federal law” articulated in Payne but also is based on

improper analysis and calls the “clearly established

federal law” articulated in Payne into question. The

court of appeals made these errors at the cost of Ms.

Andrew’s constitutional rights and, ultimately, her

life.

ARGUMENT

I.

The Tenth Circuit Misapprehended The

“Clearly Established Federal Law” Set Out

In Payne.

This Court in Payne explicitly set out that “[i]n

the event that evidence is introduced that is so unduly

prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth

Amendment provides a mechanism for relief.” 501

U.S. at 825. This was not dicta, but rather a holding

central to the Court’s ultimate conclusion in Payne.

See Williams, 529 U.S. at 412. The Payne Court’s express statement set out “clearly established federal

law,” which included a prohibition on the admission

of irrelevant evidence that “is so unduly prejudicial

that it renders the trial fundamentally unfair.” Payne,

501 U.S. at 825.

5

The Payne Court expressed this law while reviewing the admission of a specific type of evidence, but

this does not negate that the broader principle expressed by the Court is equally foundational to and

part of its holding. In the criminal proceedings underlying Payne, the State presented testimony from the

victims’ family member, who spoke about how the

murders of his mother and sister affected the surviving infant son. Id. at 814-15. This “victim impact” evidence was relied on in the prosecution’s call for

capital punishment. Id. The defendant appealed the

admission and use of this testimony, arguing that it

violated the Eighth Amendment because it was “technically irrelevant” and “create[d] a constitutionally

unacceptable risk of an arbitrary imposition of the

death penalty.” Id. at 816-17 (citation omitted) (quoting the state court’s characterization of the evidence).

In part, the defendant relied on Booth and its per se

bar on victim impact statements at the sentencing

phase of a capital trial. Payne, 502 U.S. at 817-18.

This bar was based on a premise that such statements

“do not in general reflect on the defendant’s ‘blameworthiness.’” Id. Revisiting Booth, the Payne Court

noted that states are “free, in capital cases, … to devise new procedures and new remedies to meet felt

needs.” Id. at 824-25. “Victim impact evidence is

simply another form or method of informing the sentencing authority about the specific harm caused by

the crime.” Id. at 825. In doing away with the complete bar on admitting victim impact statements,

however, the Court established a broader principle informing the admission of evidence.

The Payne Court explained: “In the event that evidence is introduced that is so unduly prejudicial that

6

it renders the trial fundamentally unfair, the Due

Process Clause of the Fourteenth Amendment provides a mechanism for relief.” Id. (citing Darden, 477

U.S. at 179-83). Although the specific victim impact

testimony in Payne “serve[d] entirely legitimate purposes” and was not unduly prejudicial (and therefore,

its admission was not erroneous), the guiding principle was clear: Admission of unduly prejudicial evidence that renders the trial fundamentally unfair

violates the Due Process Clause of the Fourteenth

Amendment. Id.

The Tenth Circuit, however, held otherwise, concluding that Payne did not clearly establish that the

admission of irrelevant evidence that renders the trial

fundamentally unfair (a form of unduly prejudicial evidence) may violate the Due Process Clause. Pet. App.

17a. The Tenth Circuit acknowledged this same language in Payne but considered it to be a “broad statement” that applies only in scenarios involving victim

impact statements that are “so unfairly prejudicial …

that their introduction will violate the Constitution.”

Id. (citation omitted). This decision is erroneous for at

least two reasons. First, it contradicts Supreme Court

precedent affirming that Payne established that the

admission of unduly prejudicial evidence may violate

the Due Process Clause. See Kansas v. Carr, 577 U.S.

108 (2016). Second, the Tenth Circuit applied an

overly narrow test for determining what constitutes

“clearly established federal law.”

These errors alone justify review. This case further warrants certiorari because of the high individual stakes at risk (namely, Ms. Andrew’s life) and

because this case is markedly different from other

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§ 2254(d)(1) cases. Other § 2254(d)(1) cases do not

doubt the existence of “clearly established federal

law” itself, but rather, turn on whether the guarantee

applies to the specific case at issue. In this case, however, the Tenth Circuit has called into question the

“clearly established federal law” itself, creating risk

that its error will spread to other cases.

A. The Tenth Circuit declined to consider

this Court’s precedent confirming that

Payne set out the “clearly established

federal law” at issue here.

The Due Process Clause forbids imposing punishment based on unduly prejudicial evidence resulting

in fundamental unfairness. This principle is “clearly

established” not only in Payne itself but also in other

decisions. Indeed, this Court has relied on the very

same holding from Payne in subsequent decisions.

For example, in Carr, this Court evaluated the

constitutionality of a joint capital-sentencing proceeding and determined whether the admission of “one defendant’s mitigating evidence,” which may have been

inadmissible in severed proceedings, “put a thumb on

death’s scale for the other,” in violation of the Eighth

Amendment. 577 U.S. at 122. In rejecting this premise, the Court reiterated: “[I]t is the Due Process

Clause that wards off the introduction of ‘unduly prejudicial’ evidence that would ‘rende[r] the trial fundamentally unfair.’” Id. at 123 (alteration in original)

(quoting Payne, 501 U.S. at 825). In this way, Carr

shows that this Court, interpreting its own precedent,

understood Payne to set out the exact “clearly established federal law” that Ms. Andrew contended it did

8

before the Tenth Circuit. Carr did not originate the

“clearly established federal law” relevant here, but instead, buttressed the fact that Payne had established

Due Process Clause limitations on admitting unduly

prejudicial evidence that would render the trial fundamentally unfair.

This is not unlike the situation in Stringer v.

Black, 503 U.S. 222 (1992), where this Court held that

a “new rule,” as defined in Teague v. Lane, 489 U.S.

288, 301 (1989), is not announced when a “clear principle emerges not from any single case, … but from [a]

long line of authority.” Stringer, 503 U.S. at 232; see

also Williams, 529 U.S. at 412 (“[W]hatever would

qualify as an old rule under our Teague jurisprudence

will constitute ‘clearly established [f]ederal law, as determined by the Supreme Court of the United States’

under § 2254(d)(1).” (citing Stringer, 503 U.S. at 228)).

Just as subsequent cases “underscore[d]” the “applicability” of new rules announced in prior decisions

in Stringer, 503 U.S. at 232, here, Carr underscores

the applicability of the “clearly established federal

law” set out in Payne. See also Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 903-04 (3d Cir. 1999)

(Stapleton, J., concurring) (citing Stringer for this

very proposition in the AEDPA context) (“[T]he application of this line of cases to [defendant’s] claim would

not … result in a new rule under Teague.” (emphasis

added)).

The Tenth Circuit, however, declined to consider

Carr in any meaningful way because it “post-dates

the … appeal opinion by nearly a decade.” Pet. App.

19a n.13. It did so based on Greene v. Fisher, which

held that for “clearly established federal law” to

9

apply, it must be in place at the time of the state court

decision alleged to have gone awry from it in violation

of § 2254(d)(1), 565 U.S. 34, 38 (2011). Pet. App. 19a

n.13. But the timing requirement of Greene restricts

what case can be relied upon for originally setting out

“clearly established federal law”—not what case can

be relied upon for validating that “clearly established

federal law” was indeed set out in another, earlier decision. See Greene, 565 U.S. at 38. After applying

Greene to dispose of Ms. Andrew’s reliance on Carr,

the Tenth Circuit only summarily addressed the

heart of Ms. Andrew’s Carr argument in a catch-all

statement: “Further, Carr does not persuade us that,

contrary to our precedent, Payne serves as clearly established law entitling her to proceed with her dueprocess claim.” Pet. App. 19a n.13.

The Tenth Circuit provided no substantive basis

for its conclusion that Carr did not recognize the law

that was clearly established in Payne, which undeniably predates the state-court decision at issue here.

Nor could it. Payne set out a “clearly established federal law,” and Carr acknowledged that law by relying

on it. The inquiry into whether a “clearly established

federal law” exists should have ended here, with Carr

as determinative proof that Payne set out the claimed

“clearly established federal law.”

Other courts considering similar arguments from

defendants appealing pre-Carr state-court decisions

have viewed Carr as solidifying the “clearly established federal law” set out in Payne—not as establishing the law in the first instance. For example, in

Rivera v. Ryan, the District Court for the District of

Arizona reviewed whether the admission of

10

“testimony show[ing] that [the defendant] had a negative attitude … and that he had been involved in

multiple confrontations regarding his work” violated

the defendant’s constitutional rights because its only

purported purpose was “to establish guilt by showing

prior bad acts, or a propensity for violence.” No. CV15-0586, 2016 WL 1622412, at *8, 17-18 (D. Ariz. Mar.

2, 2016) (citation omitted). The defendant was convicted and sentenced to death in 2007, and the denial

of his § 2254(d)(1) petition was affirmed in 2011. Id.

at *1-5. That means that Payne predated and Carr

postdated the totality of the defendant’s criminal proceedings. The district court began by reiterating the

clearly established law: “Unfairly prejudicial evidence

can amount to a denial of due process.” Id. at *17. It

then quoted this Court’s articulation of this principle

in Payne, followed by a citation to Carr, which the district court parenthetically described as “citing Payne

for the proposition that the Due Process Clause prohibits the introduction of unduly prejudicial evidence

that would render the trial fundamentally unfair.” Id.

Other courts have treated Carr in the same fashion.

See, e.g., Perkins v. Dunn, No. 14-CV-1814, 2019 WL

4538737, at *7, 35-36 (N.D. Ala. Sept. 19, 2019) (appealing 1994 conviction/sentence affirmed in 2001)

(“‘Rather, it is the Due Process Clause that wards off

the introduction of “unduly prejudicial” evidence that

would render the trial fundamentally unfair.’ [Carr,

577 U.S. at 123] (quoting [Payne, 501 U.S. at 825])”

(footnote omitted)); Baker v. Steele, No. 15 CV 1262,

2018 WL 4300203, at *8 (E.D. Mo. Sept. 10, 2018) (appealing 2010 conviction/sentence affirmed in 2014)

(“A state violates the Fourteenth Amendment’s Due

Process Clause when it admits evidence that is ‘so

11

unduly prejudicial that it renders the trial fundamentally unfair.’ [Payne, 501 U.S. at 825]; [Carr, 577 U.S.

at 123].”); Davis v. Royal, No. CIV-12-1111, 2017 WL

4204031, at *14 (W.D. Okla. Sept. 20, 2017) (appealing 2007 conviction/sentence affirmed in 2012)

(same); Bowman v. Stirling, No. 18-287, 2019 WL

8918815, at *44 (D.S.C. Dec. 10, 2019) (appealing

2001 conviction/sentence affirmed in 2012) (same).

Courts considering similar line-of-cases reasoning regarding other “clearly established federal law” have

also adopted a similar view. See, e.g., Fulcher v. Motley, 444 F.3d 791, 803-04 (6th Cir. 2006) (“To summarize, at the time the Kentucky Supreme Court

affirmed Fulcher’s conviction (1996), [the purported

‘clearly established law,’ was established.] Though it

was not made explicit until Lilly [v. Virginia, 527 U.S.

116] (1999), Lee [v. Illinois, 476 U.S. 530] (1986) had

implied that” clearly established federal law.).

Consistent with how other courts have applied

similar lines of cases to conclude that a preceding case

originated “clearly established federal law,” Ms. Andrew relied on Carr to show that Payne set out the

purported “clearly established federal law.” The

Tenth Circuit should have given this argument its

due weight. This Court should grant certiorari so that

Ms. Andrew’s argument—which, under proper consideration, compels an opposite holding—is given the

consideration it requires.

12

B. The Tenth Circuit misunderstood the

inquiry for determining what is “clearly

established federal law.”

Not only did the Tenth Circuit refuse to consider

Carr and its validation of the “clearly established federal law” set out in Payne, but it also adopted an

overly narrow inquiry for determining what constitutes “clearly established federal law,” contrary to

this Court’s instructions.

In Williams, this Court explained what constitutes “clearly established [f]ederal law, as determined

by the Supreme Court of the United States” for the

purposes of § 2254(d)(1). 529 U.S. at 412 (citation

omitted). “That statutory phrase refers to the holdings, as opposed to the dicta, of this Court’s decisions

as of the time of the relevant state-court decision.” Id.

But the term “holding” for the purposes of § 2254(d)(1)

is not limited to the narrow, at-bottom conclusion that

resolves a case. Rather, it is “the governing legal principle or principles set forth by the Supreme Court at

the time the state court renders its decision.” Lockyer,

538 U.S. at 71-72. On the one hand, “[i]f this Court

has not broken sufficient legal ground to establish an

asked-for constitutional principle, the lower federal

courts cannot themselves establish such a principle

with clarity sufficient to satisfy the AEDPA bar.” Williams, 529 U.S. at 381. On the other, “rules of law may

be sufficiently clear for habeas purposes even when

they are expressed in terms of a generalized standard

rather than as a bright-line rule.” Id. at 382. There is

a spectrum of abstraction in determining whether a

particular legal principle was clearly established in a

13

specific Supreme Court decision. As Sixth Circuit

Judge Merritt has explained:

At one end of the spectrum lie legal principles with such a high level of generality, like

the Eight[h] Amendment principle of reliability in sentencing, whose application does

not necessarily lead to a “predictable development” in the relevant law and therefore

[cannot] be considered clearly established.

See Sawyer v. Smith, 497 U.S. 227, 236, 110

S. Ct. 2822, 111 L.Ed.2d 193 (1990). On the

other end are narrowly drawn bright-line

rules with little application beyond factually

indistinguishable situations. In the middle

of the spectrum lie those general principles

of law crafted by the Supreme Court to constitute clearly established law in a wide

range of factual situations.

Davis v. Straub, 430 F.3d 281, 292 (6th Cir. 2005)

(Merritt, J., dissenting). In Payne, this Court set out

a “rule[] of law … sufficiently clear for habeas purposes,” Williams, 529 U.S. at 382: “In the event that

evidence is introduced that is so unduly prejudicial

that it renders the trial fundamentally unfair, the

Due Process Clause of the Fourteenth Amendment

provides a mechanism for relief,” Payne, 501 U.S. at

825. At worst, a court may think that this holding is

a “generalized standard rather than … a bright-line

rule.” See Williams, 529 U.S. at 382. Even so, that is

all that Williams and this Court’s subsequent decisions require.

14

The Tenth Circuit, however, did not approach the

clearly-established-federal-law inquiry in a manner

consistent with Williams. Instead, it limited the holding in Payne to what was necessary to resolve the exact factual dispute before the Court, requiring that

the Court’s “holdings ‘must be construed narrowly’

and ‘on-point,’” Pet. App. 10a (quoting Fairchild v.

Trammell, 784 F.3d 702, 721 (10th Cir. 2015))—these

harsh restrictions are inconsistent with the broader

meaning of “holding” under § 2254(d)(1) as the “governing legal principle” of the decision, Williams, 529

U.S. at 412-13.

Specifically, the Tenth Circuit reasoned that the

district court erred in determining that the first part

of the § 2254(d)(1) inquiry—the clearly-establishedlaw requirement—was met. Pet. App. 16a. Interpreting its own precedent, the Tenth Circuit explained

that, in Holland v. Allbaugh, 824 F.3d 1222 (10th Cir.

2016), it “viewed Payne’s central holding as more limited … merely establish[ing] that the Eighth Amendment did not erect a ‘per se bar’ to the introduction of

victim-impact statements in capital cases.” Pet. App.

17a (quoting Holland, 824 F.3d at 1228). According to

the Tenth Circuit, because “Payne is not ‘clearly established law’ that establishe[d] a due-process violation arising from ordinary evidentiary rulings at

trial,” Ms. Andrew’s claim challenging the state

court’s evidentiary rulings fails. Pet. App. 18a.

The Tenth Circuit’s approach applies an unduly

narrow view of what constitutes “clearly established

federal law.” The court required identical facts—“victim-impact statements in a capital case,” Pet. App.

17a—rather than considering the broader principle

15

that is established in law. As the Tenth Circuit interpreted its task, Ms. Andrew needed to point to “clearly

established law governing … evidentiary-rulingsbased claim[s]” to surpass the first step of the

§ 2254(d)(1) inquiry. Pet. App. 17a-18a. Absent a specific holding establishing that “a due-process violation

aris[es] from ordinary evidentiary rulings at trial,”

the Tenth Circuit determined that there was no

“clearly established federal law” on point. Pet. App.

18a; see also Pet. App. 17a (requiring that “holdings”

under § 2254(d)(1) be “construed narrowly” and “onpoint” (citation omitted)).

But the Tenth Circuit has missed the forest

among the trees and incorrectly applied an overly narrow version of the § 2254(d)(1) inquiry. Applying the

correct level of generality, the principle that is wellestablished is that the admission of irrelevant evidence that is so unduly prejudicial may violate Due

Process.

The error in the Tenth Circuit’s reasoning is even

more clear when considered in view of the background

principle underlying Ms. Andrew’s appeal—that her

conviction and sentence were unduly prejudiced by

the introduction of irrelevant evidence that served “no

purpose other than to hammer home that [she] is a

bad wife, a bad mother, and a bad woman.” Andrew v.

State, 164 P.3d 176, 206 (Okla. Crim. App. 2007)

(Johnson, J., concurring in part and dissenting in

part).

It is well established that punishment cannot be

imposed based on sex. See Buck v. Davis, 580 U.S.

100, 103, 123 (2017) (“[A] reasonable probability that

16

[a defendant] was sentenced to death in part because

of [an immutable characteristic] … is a disturbing departure from the basic premise that our criminal law

punishes people for what they do, not who they

are …. Dispensing punishment on the basis of an immutable characteristic flatly contravenes this guiding

principle.”); Frontiero v. Richardson, 411 U.S. 677,

686 (1973) (“[S]ex … is an immutable characteristic ….”). While “odious in all aspects,” “[d]iscrimination on the basis of [an immutable characteristic] is

especially pernicious in the administration of justice.”

Rose v. Mitchell, 443 U.S. 545, 555 (1979).

Even if no specific case has yet explicitly stated

the point, it is clearly true that the imposition of capital punishment based on sex—or even, that there is

a “reasonable probability that [a defendant is] sentenced to death in part because of” sex, Buck, 580 U.S.

at 103—violates a general constitutional rule. In Taylor v. Riojas, there was no “new rule” where “no reasonable correctional officer could have concluded

that … it was constitutionally permissible to house”

the inmate “for six full days … in a pair of shockingly

unsanitary cells”—the first being “covered, nearly

floor to ceiling,” in fecal matter, and the second being

“frigidly cold” and “equipped with only a clogged drain

in the floor to dispose of bodily wastes.” 592 U.S. 7, 89 (2020). The Tenth Circuit’s analysis runs afoul of

this general principle, requiring “on-point” holdings

that are “construed narrowly” to constitute “clearly

established federal law.” Pet. App. 10a (citation omitted). In Ms. Andrew’s case, no reasonable person,

much less a reasonable judge, could conclude that it

was proper to impose criminal punishment—let alone

capital punishment—based on sex and sexual

17

stereotypes. See, e.g., Trial Tr., Volume 17, 4125

(prosecution referring to Ms. Andrew as a “slut

puppy” in guilt-phase closing argument); Trial Tr.,

Volume 2, 323 (prosecution eliciting testimony that

Ms. Andrew was a “hoochie” because she had “lot[s] of

cleavage … exposed”).

Any trial, therefore, where any aspect of the conviction or imposition of punishment rests on sex is

“unduly prejudicial” because it would “render[] the

trial fundamentally unfair.” Payne, 501 U.S. at 825.

In other words, a trial cannot both be fundamentally

fair and simultaneously result in a conviction or sentence based, in any part, on sex. This rule of law is a

“general constitutional rule already identified in the

decisional law … with obvious clarity.” Hope v. Pelzer,

536 U.S. 730, 741 (2002) (“[A] general constitutional

rule already identified in the decisional law may apply with obvious clarity to the specific conduct in

question, even though ‘the very action in question has

[not] previously been held unlawful.’” (alteration in

original)); United States v. Lanier, 520 U.S. 259, 271

(1997) (same); see Buck, 580 U.S. at 103.

Combining this background principle—that criminal punishment cannot be imposed based on sex—

with the “clearly established federal law” in Payne—

that the admission of unduly prejudicial evidence may

violate the Due Process Clause—it is indisputable

that admitting irrelevant evidence that serves only

the purpose of invoking sex as a basis for conviction

and punishment is “unduly prejudicial” and violates

the Due Process Clause. Yet the Tenth Circuit

reached the opposite conclusion. This Court’s intervention is necessary not only to correct the life-and-

18

death outcome in Ms. Andrew’s case, but also to prevent the Tenth Circuit’s overly narrow inquiry from

infecting other cases.

C. The Tenth Circuit’s decision is unlike

other

cases

applying

§ 2254(d)(1)

because it casts doubt on the “clearly

established federal law” itself.

The discussion above by itself demonstrates that

this Court should grant certiorari. The need for review, however, is made even more pressing when, as

here, the challenged decision is mechanically very different from other cases applying the same statute.

The Tenth Circuit resolved Ms. Andrew’s § 2254(d)(1)

challenge on the basis of whether the “clearly established federal law” that Ms. Andrew identified actually exists. In doing so, the Tenth Circuit called into

question the very substance of the identified rule of

law itself. In other words, it casts doubt on what has

previously been well recognized (including by this

Court) as the law established by Payne.

In contrast, other cases addressing § 2254(d)(1)

arguments generally do not doubt the existence or

breadth of the identified “clearly established federal

law” itself. Instead, the analysis is typically devoted

to whether the established guarantee applies to the

case at issue. See, e.g., Turner v. Quarterman, 481

F.3d 292, 298-99 (5th Cir. 2007) (“It is undisputed

that the due process right … recognized in Simmons

does not apply ….”); Hooks v. Workman, 689 F.3d

1148, 1175 (10th Cir. 2012) (denying relief where the

asserted “clearly established federal law” “[did] not

apply” to the case at issue).

19

This case is unlike other § 2254(d)(1) cases because it calls into question what “clearly established

federal law” was set out in Payne. This difference

weighs heavily in favor of granting certiorari given

the widespread consequences of such a challenge to

the “clearly established federal law” set out in Payne.

There is a significant difference in holding that a

clearly established law does not apply to a specific factual scenario—that is, to a specific defendant’s case

based on the particular facts of that case—and holding as a more general matter that the asserted clearly

established law does not exist. The latter fundamentally changes the breadth of law available to future

defendants in seeking review across any number of

factual scenarios. For example, as understood by the

Tenth Circuit, Payne articulated only that the admission of victim impact statements that are unduly prejudicial violates the Due Process Clause—the

consequences of its decision could be that any defendant seeking review with respect to any other type of

unduly prejudicial evidence is now without recourse.

20

CONCLUSION

For the foregoing reasons, this Court should grant

Ms. Andrew’s petition for certiorari.

Respectfully submitted,

Melanie L. Bostwick

Counsel of Record

Thomas M. Bondy

Samantha M. Leff

ORRICK, HERRINGTON &

SUTCLIFFE LLP

2100 Pennsylvania Ave., NW

Washington, DC 20037

(202) 339-8400

mbostwick@orrick.com

February 26, 2024

APPENDIX TABLE OF CONTENTS

Appendix A, List of Amici ....................................... 1a

1a

APPENDIX A

Amici are law professors who teach and write

about habeas corpus, capital punishment, and constitutional law. Their titles and institutional affiliations

are provided for identification purposes only.

Erwin Chemerinsky

Dean

Jesse H. Choper Distinguished Professor of Law

University of California, Berkeley School of Law

Randy A. Hertz

Vice Dean

Fiorello LaGuardia Professor of Clinical Law

New York University School of Law

Sheri Lynn Johnson

James and Mark Flanagan Professor of Law

Cornell Law School

Lee Kovarsky

Bryant Smith Chair in Law

Co-Director, Capital Punishment Center

University of Texas at Austin School of Law

James S. Liebman

Simon H. Rifkind Professor of Law

Columbia Law School

Justin Marceau

Brooks Institute Faculty Research Scholar of Animal

Law and Policy

University of Denver Sturm College of Law

2a

Jordan M. Steiker

Judge Robert M. Parker Endowed Chair in Law

Co-Director, Capital Punishment Center

University of Texas at Austin School of Law

Stephen I. Vladeck

Charles Alan Wright Chair in Federal Courts

University of Texas at Austin School of Law

Keir M. Weyble

Clinical Professor of Law

Director, Death Penalty Litigation

Cornell Law School

Samuel R. Wiseman

Professor of Law

Penn State Law