Petition for Writ of Certiorari — Brandon Washington, Petitioner v. Steven T. Marshall, Attorney General of Alabama, et al.

No. ________________

In The Supreme Court of the United States

BRANDON WASHINGTON,

Petitioner,

v.

STEVE MARSHALL, ATTORNEY GENERAL OF THE STATE OF ALABAMA, JEFFERSON S.

DUNN, COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, AND CYNTHIA

STEWART, WARDEN, HOLMAN CORRECTIONAL FACILITY,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

KRISTEN M. NELSON

DAN M. MEYER

Spero Justice Center

1312 17th St., Suite 642

Denver, CO 80202

(303) 495-1153

KEVIN L. BUTLER

Federal Public Defender

Northern District of Alabama

ALEXANDRIA DARBY*

Appellate Attorney

*Counsel of Record

Office of the Federal Public Defender

200 Clinton Avenue West, Suite 503

Huntsville, Alabama 35801

(256) 684-8700

Counsel for Petitioner

QUESTION PRESENTED

Under 28 U.S.C. § 2254(d)(2), a state prisoner can obtain federal habeas relief

only by showing that the state court’s denial of his claim was “based on an

unreasonable determination of the facts in light of the evidence presented in the State

court proceeding.” To meet the “unreasonable determination” standard, must a state

prisoner dispel “any potential justification” for the state court’s factual finding, even

where the state prisoner was unjustifiably denied an evidentiary hearing in state

court and had no opportunity to develop the factual record?

i

PARTIES TO THE PROCEEDING

The caption of this case names all parties to the proceeding in the court

whose judgment is sought to be reviewed.

ii

RELATED PROCEEDINGS

Circuit Criminal Court of Jefferson County, Alabama:

State v. Brandon Washington, No. 01-CC-1757 (Mar. 30, 2012)

Alabama Court of Criminal Appeals:

Brandon Washington v. State, No. CR-05-1297 (Oct. 02, 2012)

Brandon Washington v. State, No. CR-16-0510 (Apr. 20, 2018)

Supreme Court of Alabama:

Ex parte Brandon Washington, No. 1071607 (Apr. 15, 2011)

United States District Court for the Northern District of Alabama:

Brandon Washington v. Steve Marshall, Attorney General of the State of

Alabama, et al., No. 2:18-cv-01091-ACA-GMB (Sep. 27, 2021)

United State Court of Appeals for the Eleventh Circuit:

Brandon Washington v. Attorney General of the State of Alabama, et al., No.

21-13756 (Nov. 08, 2023)

iii

TABLE OF CONTENTS

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

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

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

Table of Contents .......................................................................................................... iv

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

Petition for a Writ of Certiorari .................................................................................... 1

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

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

Relevant Statutory Provisions ...................................................................................... 2

Introduction ................................................................................................................... 2

Statement ....................................................................................................................... 3

A. Proceedings in State Court ................................................................................. 3

1. State trial and direct appeal proceedings ..................................................... 3

2. State postconviction proceedings .................................................................. 4

B. Proceedings in Federal Court ............................................................................. 8

1. Initial panel decision ..................................................................................... 8

2. Revised panel decision ................................................................................... 9

Reason for Granting the Petition .................................................................................. 9

I. When a federal court reviews a state court’s factual determinations

under 28 U.S.C. §2254(d)(2), it is presently unsettled whether, and

how, the reasonableness of the state court’s fact-finding procedures

should inform the federal court’s assessment. This Court’s

intervention is needed to resolve a circuit split and clarify this

important question ......................................................................................... 9

iv

Conclusion .................................................................................................................... 15

APPENDIX A:

Opinion of the Court of Appeals, No. 21-13756 (11th Cir. November 8,

2023) ............................................................................................................................. 1a

APPENDIX B:

Opinion of the Court of Appeals, No. 21-13756 (11th Cir. July 28, 2023) ................ 14a

APPENDIX C:

Memorandum Opinion, Washington v. Marshall, et al., No. CV-1091 (N.D.

Ala. September 27, 2021)........................................................................................... 36a

APPENDIX D:

Report and Recommendation, Washington v. Marshall, et al., No. CV1091 (N.D. Ala. June 23, 2021) ................................................................................. 49a

APPENDIX E:

Order Denying Petition for Rehearing, No. 21-13756 (11th Cir. February

6, 2024) ....................................................................................................................... 71a

APPENDIX F:

Memorandum Opinion, Washington v. State, No. CR-16-0510 (Ala. Crim.

App. April 20, 2018) ................................................................................................... 73a

APPENDIX G:

Order Denying Relief, State v. Washington, No. CC-2005-001757.60 (Cir.

Ct. December 30, 2016)............................................................................................ 104a

v

TABLE OF AUTHORITIES

Federal and State Cases

Page(s)

Atkins v. Virginia, 536 U.S. 304 (2002) ...................................................................... 13

Brown v. Allen, 344 U.S. 443 (1953) ........................................................................... 14

Brumfield v. Cain, 576 U.S. 305 (2015) ................................................................. 12-14

Ex parte Hodges, 147 So.3d 973 (Ala. 2011) ........................................................... 6 n.3

Harrington v. Richter, 562 U.S. 86 (2011) .................................................................. 11

Hibbler v. Benedetti, 693 F.3d 1140 (9th Cir. 2012) ................................................... 12

Jackson v. Virginia, 443 U.S. 307 (1979) .................................................................... 11

Landers v. Warden, Atty. Gen. of Ala., 776 F.3d 1288 (11th Cir. 2015) .................... 12

Miller-El v. Cockrell, 537 U.S. 332 (2003) .................................................................. 11

Missouri v. Frye, 566 U.S. 134 (2012) ................................................................. 2, 5, 10

Pye v. Warden, Ga. Diagnostic Prison, 50 F.4th 1025 (11th Cir. 2022) ..................... 10

Smith v. Aldridge, 904 F.3d 874 (10th. Cir. 2018) ..................................................... 12

Valdez v. Cockrell, 274 F.3d 941 (5th Cir. 2001) ........................................................ 12

Washington v. Att’y Gen., No. 21-13756, 2023 WL 7391693 (11th Cir. Nov. 8, 2023) 1

Washington v. Att’y Gen. of State of Alabama, 75 F.4th 1164 (11th Cir. 2023) .......... 1

Washington v. State, 106 So.3d 423 (Ala. Crim. App. 2007) ....................................... 4

Ex Parte Washington, 106 So. 3d 441 (Ala. 2011) ........................................................ 4

Yeomans v. State, 195 So.3d 1018 (Ala. Crim. App. 2013)................................ 6 n.3

vi

United States Code

Page(s)

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

28 U.S.C. § 2254(d)(2) .......................................................................... 2, 3, 8, 10, 11, 14

State Statutes

Page(s)

Ala. Code § 13A-5-40(a)(2) ............................................................................................. 3

Alabama Rules of Criminal Procedure

Page(s)

Ala. R. Crim. P. 32 ......................................................................................................... 4

Ala. R. Crim. P. 32.9(a) ............................................................................................ 6 n.3

Secondary Sources

Page(s)

Justin F. Marceau, Deference and Doubt: The Interaction of AEDPA §

2254(d)(2) and (e)(1), 82 Tul. L. Rev. 385, 409–10 (2007) .......................................... 14

vii

PETITION FOR A WRIT OF CERTIORARI

Petitioner Brandon Washington respectfully petitions for a writ of certiorari to

review the judgment of the United States Court of Appeals for the Eleventh Circuit.

OPINIONS BELOW

The panel opinion of the court of appeals granting rehearing (Pet. App. 1a–

13a) is unreported but is available at 2023 WL 7391693. The vacated panel opinion

of the court of appeals (Pet. App. 14a–35a) is reported at 75 F.4th 1164. The order of

the district court denying the petition for a writ of habeas corpus (Pet. App. 36a–48a)

is unreported but is available at 2021 WL 4409096. The order of the Supreme Court

of Alabama denying Mr. Washington’s petition for certiorari is unpublished but is

available at 28 So.3d 426. The memorandum opinion of the Alabama Court of

Criminal Appeals affirming the denial of postconviction relief (Pet. App. 73a–103a)

and the order of the Circuit Court of Jefferson County, Alabama (Pet. App. 104a–

119a) denying postconviction relief are unreported.

JURISDICTIONAL STATEMENT

The Eleventh Circuit Court of Appeals issued a published opinion granting Mr.

Washington relief on July 23, 2023. On November 8, 2023, the panel granted the

State’s petition for rehearing, vacated and withdrew its previous opinion, and

substituted an unpublished opinion denying Mr. Washington relief. On February 6,

2024, the panel denied Mr. Washington’s petition for rehearing. On April 30, 2024,

Justice Thomas extended the time to file a petition for a writ of certiorari until June

1

5, 2024. Washington v. Marshall, No. 23A970 (mem.). This petition is therefore timely

and the jurisdiction of this Court is invoked under 22 U.S.C. § 1254(1).

RELEVANT STATUTORY PROVISIONS

Title 28 U.S.C. § 2254 provides, in relevant part:

§2254. State custody; remedies in Federal courts

....

(d) 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; or

(2) resulted in a decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.

INTRODUCTION

Brandon Washington is an Alabama prisoner serving a sentence of life without

parole. He seeks relief from that sentence because his trial counsel provided

ineffective assistance by failing to convey a favorable mid-trial plea offer of thirty

years’ imprisonment. Mr. Washington first learned of the thirty-year offer when the

State referenced it in its response to his state postconviction petition. Following this

revelation, Mr. Washington amended his petition and asserted a well-pleaded

ineffective assistance of counsel claim pursuant to Missouri v. Frye, 566 U.S. 134

(2012).

2

Even though he met his burden of pleading under Alabama law, Mr.

Washington never was afforded an evidentiary hearing on his claim, either in state

or federal court. The Eleventh Circuit interpreted 28 U.S.C. § 2254(d)(2) to require

federal courts to defer to state court factual findings for which there is “any potential

justification,” even when the state courts fail to afford a petitioner an opportunity to

develop his claim at an evidentiary hearing. The court of appeals concluded “there is

a potential justification” for the Alabama Court of Criminal Appeal’s conclusion that

Washington was told about the thirty-year offer, and found that therefore, his trial

counsel’s performance was not defective. Pet. App. 2a–3a.

The decision below conflicts with decisions from the Ninth and Tenth Circuits,

which both hold that a state court’s fact-finding process bears on whether its ultimate

factual findings are reasonable under §2254(d)(2). This Court’s intervention is needed

to resolve the Circuit split and clarify the interpretation of this important federal

statute. This case is an excellent vehicle to resolve this question because it illustrates

how the Eleventh Circuit’s “any potential justification” standard creates an

impossible hurdle for habeas petitioners who have never had an opportunity to

develop the underlying facts of their claims at an evidentiary hearing.

STATEMENT

A. Proceedings in State Court

1. State trial and direct appeal proceedings

This case began as a capital case. The State indicted Brandon Washington with

one count of capital murder during a robbery in violation of Ala. Code § 13A-5-40(a)(2)

3

for killing Justin Campbell at a RadioShack where Mr. Campbell worked, and sought

the death penalty against him. Washington v. State, 106 So.3d 423, 425 (Ala. Crim.

App. 2007). At the time of his arrest, Mr. Washington was an 18-year-old freshman

at Miles College. Id. at 439.

After a 2-day trial in January 2006, Mr. Washington was convicted of the

charge, and the jury recommended a sentence of death by a vote of 11-1. Id. The trial

court accepted the jury’s recommendation, and formally sentenced Mr. Washington

to death in March 2006. Id.

In January 2007, the Alabama Court of Criminal Appeals (hereinafter, the

“ACCA”) remanded Mr. Washington’s case to the trial court, finding that it was plain

error to sentence him without the benefit of a presentence investigation report. Id. at

432-33. At resentencing, the trial court again sentenced Mr. Washington to death. Id.

at 436 (Ala. Crim. App. 2008). However, the Alabama Supreme Court overturned that

sentence because the trial court plainly erred by admitting improper victim-impact

testimony. See Ex parte Washington, 106 So. 3d 441, 447 (Ala. 2011).

At Mr. Washington’s third sentencing hearing in March 2012, the State

declined to seek a death sentence, and the trial court resentenced Mr. Washington to

life without the possibility of parole. Pet. App. 4a.

2. State postconviction proceedings

In October 2013, Mr. Washington petitioned the state trial court for relief from

his conviction pursuant to Rule 32 of the Alabama Rules of Criminal Procedure,

alleging ineffective assistance of trial counsel. The State moved to dismiss the

4

petition, arguing that trial counsel could not have been ineffective because the

prosecutor was so impressed by trial counsel’s performance that he extended a midtrial offer of 30 years to Mr. Washington. Pet. App. 4a. 1

Upon learning about the State’s 30-year offer, Mr. Washington amended the

Rule 32 petition, alleging that he was not informed of this offer, that he would have

accepted the offer if he had known about it, and that trial counsel’s failure to

communicate this plea offer constituted ineffective assistance of counsel pursuant to

Missouri v. Frye, 566 U.S. 134 (2012). Id. Mr. Washington requested an evidentiary

hearing on this issue in his amended petition, and reiterated this request in several

subsequent pleadings. Pet. App. 4a.

While Mr. Washington’s amended Rule 32 petition was pending, he moved for

leave to take a perpetuation deposition of his grandmother, Amanda Washington,

because she was in poor health. Pet. App. 4a–5a. 2 In support of this request, Mr.

Washington attached a sworn affidavit from Ms. Washington stating that she was

present when trial counsel communicated a life offer to Mr. Washington, but that she

never “heard of a plea offer for 30 years” that “Anthony [never] mention[ed] any plea

offer other than for life in prison.” Pet. App. 5a.

The trial court granted the motion to take the deposition unless the parties

stipulated “for the Court to consider the content of [ Amanda’s] Affidavit as true.”

1 The trial record includes evidence that Mr. Washington rejected a mid-trial offer of life with

parole, but there is nothing in the record concerning an offer to a term of years. Id.

2 Ms. Washington adopted Brandon when he was 13 years old after his mother abandoned

him, 106 So.3d at 425. She hired attorney Emory Anthony to represent her grandson at his trial.

5

Id. Following the court’s order, the parties agreed to this proposed stipulation and as

a result, the deposition never took place. Id.

The court later ordered trial counsel Emory Anthony and Assistant District

Attorney Mike Anderton to submit affidavits addressing whether the State extended

a 30-year plea offer during trial. In response, Mr. Anderton attested that he extended

an offer “that involved a number of years.” Id. He stated that although he could not

recall the exact number of years offered, the offer was “for a term of less than a life

sentence.” Id. Mr. Anthony submitted an affidavit stating that Mr. Anderton had

extended an offer of 30 years and that he “talked with Brandon Washington and his

Grandmother, [but] Brandon refused to accept the plea offer.” Pet. App. 5a–6a.

Throughout this time period, Mr. Washington made multiple requests for an

evidentiary hearing, but the state habeas court subsequently issued a ruling denying

his claim without notifying Mr. Washington that it intended to resolve his petition by

taking “evidence by affidavits, written interrogatories, or depositions, in lieu of an

evidentiary hearing,” as required by state law.3 In its order denying relief, the court

acknowledged that Ms. Washington’s stipulated-as-true affidavit conflicted with Mr.

Anthony’s and Mr. Anderton’s recollections, but held that Mr. Washington’s claim of

deficient performance must fail because “[r]egardless of whether this offer of 30 years

was placed on the record, it is both Mr. Anderton’s and Mr. Anthony’s recollection,

3 See Ala. R. Crim. P. 32.9(a). Alabama law provides that “when a petition contains matters

which, if true, would entitle the petitioner to relief, an evidentiary hearing must be held.” Ex parte

Hodges, 147 So.3d 973, 976-77 (Ala. 2011). While Rule 32.9 of the Alabama Rules of Criminal

Procedure permits a circuit court, “in its discretion . . . [to] take evidence by affidavits, written

interrogatories, or depositions, in lieu ofan evidentiary hearing,” the court must provide a petitioner

of notice of its intent to do so. See Yeomans v. State, 195 So.3d 1018, 1051 (Ala. Crim. App. 2013).

6

that any offer of settlement for less than Life was communicated and rejected by the

Defendant.” Pet. App. 6a. The court further concluded that Mr. Washington had not

met his burden of proving prejudice. Pet. App. 27a.

Mr. Washington appealed. On appeal, the question for the ACCA was whether

Mr. Washington had satisfied his burden of pleading below and was therefore entitled

to an opportunity to meet his burden of proof at an evidentiary hearing (or, at a

minimum, a fair opportunity to supplement the record with additional affidavits and

other paper evidence). In an unpublished opinion, the ACCA denied relief, holding

that Mr. Washington failed to meet his burden of proof on the deficient performance

prong of Strickland. The Court held that “[t]he affidavits of Mr. Anthony and Mr.

Anderton, though contrary to Washington’s assertion in his petition, constitute

sufficient evidence on which the circuit court could have based its findings, i.e., that

defense counsel did in fact communicate a 30-year plea deal to Washington that he

rejected.” Pet. App. 103a. To reconcile the State’s stipulation to the truth of Amanda

Washington’s affidavit with the trial court’s inconsistent finding, the ACCA suggested

that Mr. Anthony may have communicated the 30-year offer to Mr. Washington

outside of his grandmother’s presence. The appellate court held:

Ms. Washington’s affidavit stated that she ‘never heard

Mr. Anthony mention any plea offer other than for life in

prison’ and that based on her relationship with

Washington, she was ‘confident’ that he would have told

her about any other plea offers. Thus, her testimony does

not rule out the possibility that Washington may have

chosen not to tell her about the offer.”

7

Pet. App. 102a. Neither the State nor the trial court had made this argument during

state postconviction proceedings below.

B. Proceedings in Federal Court

Mr. Washington next filed a habeas petition in the U.S. District Court for the

Northern District of Alabama. The district court denied the petition, Pet. App. 36a48a, but an Eleventh Circuit panel reversed and remanded for an evidentiary hearing

in a published opinion. Pet. App. 14a–35a. However, several months later, the same

panel granted the State’s petition for rehearing, withdrew its previous opinion, and

denied relief. Pet. App. 1a–13a. Mr. Washington unsuccessfully petitioned for

rehearing.

1. Initial panel decision

The panel initially found that the state courts’ factual findings as to both

prejudice and deficient performance were unreasonable under 28 U.S.C. § 2254(d)(2).

Pet. App. 27a–34a. The panel found that the state habeas court’s conclusions

regarding prejudice were unsupported by the record and were therefore

unreasonable, particularly in light of the fact that the court “relied on its own

assumption[s]” and reached its conclusions “without briefing or input from the

parties[.]” Pet. App. 33a. As to deficient performance, the panel held that the state

court’s finding that the affidavits of Amanda Washington and Emory Anthony could

be reconciled was also unreasonable because it was unsupported by the record. Pet.

App. 34a. The panel noted that the State had stipulated to the truth of Amanda

Washington’s affidavit, in which she indicated that she was present when Mr.

8

Anthony conveyed a life offer to her grandson, but “never heard Mr. Anthony mention

any plea offer other than for life in prison,” and that Ms. Washington’s affidavit was

in direct conflict with Mr. Anthony’s attestation that he “talked with Brandon

Washington and his Grandmother” about the 30-year offer. Pet. App. 33a–34a.

The panel further acknowledged that “there is very little evidence” in the

record about the 30-year offer. Pet. App. 34a. It noted that “Washington has

repeatedly requested an evidentiary hearing, and in light of him clearing the AEDPA

hurdle, he should be given an opportunity to present his evidence.” Pet. App. 35a.

2. Revised panel decision

After the State sought rehearing, the panel vacated and withdrew its previous

opinion and substituted a new opinion denying Mr. Washington relief. Pet. App. 1a–

13a. In the new opinion, the panel addressed only the deficient performance prong of

Strickland.

In its prior opinion, the panel held that “Anthony’s affidavit clearly indicates

that—if at all—he told Washington and Amanda together about the thirty-year plea

offer.” Pet. App. 33a. In its revised opinion, the panel contradicted its earlier finding

and concluded that it was, in fact, also possible that “Anthony told Washington and

Amanda separately about the plea offer[.]” Pet. App. 12a. The Court concluded that if

Mr. Anthony’s affidavit was interpreted in this way, then Amanda’s affidavit, taken

as true, “discounts Anthony’s narrative [but] does not foreclose the possibility that

the plea offer was still communicated to Washington without Amanda present.” Id.

Therefore, the panel concluded, Mr. Washington “failed to show that the ACCA’s

9

conclusion that he received the thirty-year plea offer was unreasonable[.]” Id. at *5.

The Court’s opinion did not address the fact that Mr. Washington never received an

evidentiary hearing on his claim—either in state or federal court.

REASON FOR GRANTING THE PETITION

When a federal court reviews a state court’s factual determinations under

28 U.S.C. §2254(d)(2), it is presently unsettled whether, and how, the

reasonableness of the state court’s fact-finding procedures should inform

the federal court’s assessment. This Court’s intervention is needed to

resolve a circuit split and clarify this important question.

Following its published decision in Pye v. Warden, Ga. Diagnostic Prison, 50

F.4th 1025, 1035 (11th Cir. 2022), the Eleventh Circuit held that §2254(d)(2) required

deference to the state court’s factual findings so long as there existed “any potential

justification” for those findings. In applying this standard, the Eleventh Circuit

ignored that the state courts failed to provide Mr. Washington the opportunity to

prove his well-pleaded Frye claim at an evidentiary hearing or through an adequate

substitute for one. In this regard, the lower court’s opinion conflicts with decisions of

the Ninth and Tenth Circuits, as well as precedent from this Court, which recognize

that a state court’s fact-finding procedures are relevant to a federal court’s

assessment of the reasonableness of its factual determinations. This Court should

grant certiorari to resolve the split and clarify whether, and how, a state court’s

deficient fact-finding procedures should factor into a federal court’s assessment of the

reasonableness of its factual determinations pursuant to §2254(d)(2).

AEDPA requires federal courts to uphold state court factual determinations in

all but the narrowest of circumstances. Pursuant to 28 U.S.C. §2254(d)(2), a federal

court may not grant federal habeas relief on a claim that was adjudicated on the

10

merits in State court proceedings unless the adjudication of the claim “resulted in a

decision that was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” The stringent standard for federal

habeas relief set forth in AEDPA “reflects the view that habeas corpus is a ‘guard

against extreme malfunctions in the state criminal justice systems,’ not a substitute

for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86,

102–03 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332, n. 5, 99 (1979)

(Stevens, J., concurring in judgment)). The standard “is difficult to meet” because “it

was meant to be.” Id. at 102. While AEDPA “stops short of imposing a complete bar

on federal-court relitigation of claims already rejected in state proceedings,” it

“preserves authority to issue the writ in cases where there is no possibility fairminded

jurists could disagree” that the state court erred. Id.

With respect to subsection (d)(2), this means that a state court’s determination

of the facts is afforded a high degree of deference and is rarely found to be

unreasonable. See Miller-El v. Cockrell, 537 U.S. 332, 340 (2003). Nevertheless,

several federal circuits have acknowledged that there are circumstances when a state

court’s determination of the facts was unreasonable in light of deficiencies in its factfinding procedures. Even so, the precise standard that applies to a § 2254(d)(2) claim

involving an argument that a state court used unreasonable fact-finding procedures

remains unresolved.

At least three federal circuits have recognized that, in some form, § 2254(d)(2)

allows for challenges to a state court’s fact-finding procedures. For instance,

11

recognizing that “the procedures a state court employs to make factual

determinations… can affect the reasonableness of the court’s subsequent factual

determinations,” the Tenth Circuit has held that “a state court’s decision not to hold

an evidentiary hearing only renders its factual findings unreasonable… if all

‘reasonable minds’ agree that the state court needed to hold a hearing in order to

make those factual determinations.” Smith v. Aldridge, 904 F.3d 874, 883 (10th. Cir.

2018) (quoting Brumfield v. Cain, 576 U.S. 305, 314 (2015)). In the Ninth Circuit,“[a]

state court’s decision not to hold an evidentiary hearing does not render its factfinding process unreasonable so long as the state court could have reasonably

concluded that the evidence already adduced was sufficient to resolve the factual

question.” Hibbler v. Benedetti, 693 F.3d 1140, 1147 (9th Cir. 2012). And, even though

the panel below did not address Mr. Washington’s argument that the state court

employed unreasonable fact-finding procedures, the Eleventh Circuit has “not

foreclose[d] the possibility that a state court’s fact-finding procedure could be so

deficient and wholly unreliable as to result in an unreasonable determination of facts

under § 2254(d)(2).” Landers v. Warden, Atty. Gen. of Ala., 776 F.3d 1288, 1297 (11th

Cir. 2015).

On the other hand, the Fifth Circuit has rejected efforts to challenge the

reasonableness of state court fact-finding procedures. In Valdez v. Cockrell, 274 F.3d

941 (5th Cir. 2001), it held that that “a full and fair hearing is not a precondition to…

applying § 2254(d)’s standards of review” and declined to consider egregious

deficiencies in the state court’s fact-finding process. Id. at 951.

12

While this Court has not addressed this important question directly, its

decision in Brumfield v. Cain suggests that the reasonableness of a state court’s factfinding procedures is intertwined with the ultimate reasonableness of its factual

findings. 576 U.S. 305 (2015). In Brumfield, the Louisiana courts denied a deathsentenced petitioner’s claim of intellectual disability under Atkins v. Virginia, 536

U.S. 304 (2002) without an evidentiary hearing. Id. at 310. In Louisiana, a deathsentenced individual “needed only to raise a ‘reasonable doubt’ as to his intellectual

disability to be entitled to an evidentiary hearing.” Id. at 310. Relying on an IQ test

that placed Brumfield slightly above the 70-point threshold for intellectual disability

and a determination that he could not show adaptive deficits that had been made

prior to Atkins,4 the state court held that Brumfield was not entitled to an evidentiary

hearing. Id. at 315–17.

This Court held that the state court’s decision was unreasonable, pointing out

that, in state court, the petitioner “was not obligated to show that he was

intellectually disabled, or even that he would likely be able to prove as much” in order

to get a hearing. Id. at 320-22. Rather, he only needed to “raise a ‘reasonable doubt’

as to his intellectual disability” to be afforded the opportunity to prove his claim. Id.

Put a different way, the Court found that Brumfield had satisfied his burden of

pleading in state court and was therefore entitled to an opportunity to meet his

Brumfield had been convicted and sentenced to death prior Atkins and therefore relied on

evidence of intellectual disability that was already in the record in this case at the time Atkins was

decided.

4

13

burden of proof—and that the state court’s determination of the facts was

unreasonable for failing to appreciate this distinction.

While Brumfield implicitly found that a state court’s fact-finding procedures

are relevant to a federal court’s §2254(d)(2) analysis, it did not expressly articulate

the standard that federal courts should use when a habeas applicant argues that a

state court made an unreasonable factual determination because it used

unreasonable fact-finding procedures.

It is important for this Court to provide clarity. Under §2254(d)(2), a federal

court’s review is based on “the evidence presented in the state court proceeding.”

However, without guidance from this Court, federal courts may continue to overlook

glaring and unreasonable defects in state court procedures used to resolve issues of

fact, which is precisely what happened here. In Mr. Washington’s case, the Eleventh

Circuit articulated an unattainable standard for federal habeas relief that required

him to dispel “potential justifications” for the state court’s factual findings even

though he was never given an opportunity to do so. Review under § 2254(d)(2) is only

meaningful if it authorizes relief in situations where unreasonable fact-finding

procedures wrongly foreclosed a petitioner from developing the state court record.

“Comity and federalism are not served by deferring to a state finding where

the fact-finding process itself was defective.” Justin F. Marceau, Deference and Doubt:

The Interaction of AEDPA § 2254(d)(2) and (e)(1), 82 Tul. L. Rev. 385, 409–10 (2007).

See also Brown v. Allen, 344 U.S. 443, 545 (1953) (Jackson, J., concurring) (criticizing

federal habeas review generally, but agreeing that it is necessary for federal courts

14

to entertain habeas petitions in cases where the petitioner shows “that although the

law allows a remedy, he was actually improperly obstructed from making a record

upon which the question could be presented.”).

CONCLUSION

For the foregoing reasons, Mr. Washington prays that this Court grant a writ

of certiorari and reverse.

Respectfully submitted this, the 5th day of June, 2024.

KEVIN L. BUTLER

Federal Public Defender

Northern District of Alabama

KRISTEN M. NELSON

DAN M. MEYER

Spero Justice Center

1312 17th St., Suite 642

Denver, CO 80202

(303) 495-1153

ALEXANDRIA DARBY*

Appellate Attorney

*Counsel of Record

200 Clinton Avenue West, Suite 503

Huntsville, Alabama 35801

(256) 684-8700

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