Petition for Writ of Certiorari — Dustin Young, Petitioner v. John R. Swaney, Sheriff, Madison County, Ohio, et al.

Supreme Court briefDec 23, 2024

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No. _____

In the Supreme Court of the United States

Dustin Young,

Petitioner,

John R. Swaney,

Respondent.

On Petition for a Writ of Certiorari to

the United States Court of Appeals for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

Eugene R. Fidell

Yale Law School

Supreme Court Clinic

127 Wall Street

New Haven, CT 06511

(203) 432-4992

Michael B. Kimberly

Counsel of Record

Paul W. Hughes

Sarah P. Hogarth

Andrew Lyonsberg

McDermott Will & Emery LLP

500 North Capitol Street NW

Washington, DC 20001

(202) 756-8000

mkimberly@mwe.com

Counsel for Petitioner

QUESTION PRESENTED

A federal habeas petitioner seeking to appeal a district court’s denial of habeas relief must obtain a certificate of appealability, commonly known as a COA. See 28

U.S.C. § 2253(c). The statute permits a “circuit justice or

judge” to issue a COA “if the applicant has made a substantial showing of the denial of a constitutional right.”

Ibid. A petitioner makes such a showing when he demonstrates that “jurists of reason would find it debatable”

that the district court’s decision was correct. Slack v.

McDaniel, 529 U.S. 473, 484 (2000).

There is a square conflict among the courts of appeals

on the following question presented:

Whether a certificate of appealability may be granted

under 28 U.S.C. § 2253(c) when the issue that the petitioner wishes to present on appeal has been resolved

against him by binding circuit precedent but in his favor

by another federal court of appeals.

PARTIES TO THE PROCEEDINGS BELOW

The parties to the proceeding below were petitioner

Dustin Young and respondent John R. Swaney. The Butler County, Ohio Court of Common Pleas also was named

as a respondent below.

Pursuant to Rule 12.6, Young states his belief that

the Butler County, Ohio Court of Common Pleas has no

interest in the outcome of the petition.

RELATED PROCEEDINGS

Federal courts:

• Young v. Swaney, No. 1:23-cv-37, U.S. District

Court for the S.D. Ohio (Dec. 11, 2023)

• Young v. Swaney, No. 1:23-cv-37, U.S. District

Court for the S.D. Ohio (April 25, 2024)

• Young v. Swaney, No. 24-3394, U.S. Court of

Appeals for the Sixth Circuit (Sept. 24, 2024)

Ohio state courts:

• State v. Young, No. CA2020-04-052,

Supreme Court of Ohio (Jan. 18, 2022)

• State v. Young, No. CA2020-04-052,

Ohio Court of Appeals (July 26, 2021)

• State v. Young, No. CA2018-03-047,

Ohio Court of Appeals (March 18, 2019)

• State v. Young, No. CR2017-04-0695,

Court of Common Pleas (Feb. 27, 2018)

iii

TABLE OF CONTENTS

Introduction .................................................................. 1

Opinions Below .............................................................3

Jurisdiction .................................................................. 4

Statutory Provision Involved ........................................ 4

Statement..................................................................... 4

A. Legal background................................................ 4

B. Factual background ............................................ 6

C. Procedural background ........................................ 7

Reasons for Granting the Petition ................................. 9

A. The courts of appeals are crisply split on

the question presented ........................................ 9

B. The question presented is important................... 14

C. This is an unusually clean vehicle ...................... 17

D. The Sixth Circuit’s rule is wrong, and

Young is entitled to a COA ................................. 18

Conclusion .................................................................. 21

Appendix A (circuit judge’s denial of a COA) .............. 1a

Appendix B (district court’s denial of a COA) .............. 5a

Appendix C (report and recommendations

concerning motion for a COA) ............................... 21a

Appendix D (order of the district court on

motion to dismiss Swaney) ....................................24a

Appendix E (report and recommendations

concerning motion to dismiss Swaney) .................30a

TABLE OF AUTHORITIES

Cases

Allen v. Ornoski,

435 F.3d 946 (9th Cir. 2006) ............................. 12

Allen v. Stephens,

805 F.3d 617 (5th Cir. 2015) ............................... 11

Aviles v. United States,

2022 WL 1439333 (11th Cir.).............................. 11

Barefoot v. Estelle,

463 U.S. 880 (1983) ....................................... 5, 21

Buck v. Davis,

580 U.S. 100 (2017) ....................................... 5, 20

Cardenas v. Stephens,

820 F.3d 197 (5th Cir. 2016) ......................... 11, 16

Clements v. Florida,

59 F.4th 1204 (11th Cir. 2023) ............................. 1

De Jesus Blanco v. Florida,

2018 WL 11256059 (S.D. Fla.) ............................ 11

Dolan v. U.S. Postal Service,

546 U.S. 481 (2006) ........................................... 19

Franklin v. Lucero,

2021 WL 4595175 (10th Cir.)............................. 13

Hamilton v. Secretary of the Florida

Department of Corrections,

793 F.3d 1261 (11th Cir. 2015) ................... 2, 9, 10

Hautzenroeder v. Dewine,

887 F.3d 737 (6th Cir. 2018) .............................1, 7

Cases—continued

Jordan v. Epps,

756 F.3d 395 (5th Cir. 2014) ............................... 11

Kamana’o v. Frank,

2010 WL 1783560 (D. Haw.) ............................. 12

Lambright v. Stewart,

220 F.3d 1022 (9th Cir. 2000) ............ 2, 11, 12, 21

Lambrix v. Secretary of the Florida Department

of Corrections,

851 F.3d 1158 (11th Cir. 2017) ...................... 10, 11

Lozada v. Deeds,

498 U.S. 430 (1991) ................................. 5, 15, 20

Lynce v. Mathis,

519 U.S. 433 (1997) ..................................... 19, 20

Miller-El v. Cockrell,

537 U.S. 322 (2003) ............................. 4, 5, 20, 21

Mitchell v. United States,

43 F.4th 608 (6th Cir. 2022) ............ 2, 9,10, 16-20

Ortiz v. United States,

2023 WL 2854427 (S.D. Fla.) ............................. 11

Payton v. Davis,

906 F.3d 812 (9th Cir. 2018) .............................. 12

Piasecki v. Court of Common Pleas,

917 F.3d 161 (3d Cir. 2019) .................................. 1

Rodella v. United States,

467 F. Supp. 3d 1116 (D.N.M. 2020) .................. 13

Safford v. Lothrop,

2018 U.S. Dist. LEXIS 202753 (D. Ariz.) ........... 12

Cases—continued

Scott v. Schriro,

2007 WL 1576006 (D. Ariz.).............................. 12

Slack v. McDaniel,

529 U.S. 473 (2000)......................................1, 4, 5

Tennard v. Dretke,

542 U.S. 274 (2004) ....................................... 5, 19

Tillman v. Hubbard,

2007 WL 9752024 (E.D. Cal.) ........................... 12

United States v. Crooks,

769 Fed. Appx. 569 (10th Cir. 2019) ............. 12, 13

United States v. Gomez-Sotelo,

18 Fed. Appx. 690 (10th Cir. 2001) .................... 13

United States v. McElhiney,

2018 WL 2087142 (D. Kan.) .............................. 13

United States v. Paris,

2018 WL 2087187 (D. Kan.)............................... 13

Urquijo v. United States,

2017 U.S. Dist. LEXIS 89922 (D. Ariz.) ............. 12

Washington v. Schriro,

2007 WL 756906 (D. Ariz.) ............................... 12

Statutes

28 U.S.C.

§ 2253(c) .......................................................... 1, 4

§ 2253(c)(2).................................................... 5, 19

§ 2254(d)(1) ........................................................ 19

Ohio Rev. Code § 2950.01(E) ..................................... 6

vii

Other Authorities

Administrative Office of the Courts, Judicial

Business of the U.S. Courts 2023

(Sept. 30, 2023)............................................. 14, 15

Aziz Z. Huq, Habeas and the Roberts Court,

81 U. Chi. L. Rev. 519 (2014) .............................. 15

Nicholas Beekhuizen, Post-AEDPA

Compromise: Increased Habeas Corpus

Relief for Capital Cases and Tighter Restrictions for Noncapital Cases,

10 Ind. J.L. & Soc. Equal. 321 (2022) ................. 16

Rachel Brown, et al., Is Published Unequal? An

Empirical Examination of the 87%

Nonpublication Rate in Federal Appeals,

107 Cornell L. Rev. 1 (2021) ............................... 15

INTRODUCTION

Before appealing the dismissal of a habeas petition, a

habeas petitioner must obtain a certificate of appealability, or COA. See 28 U.S.C. § 2253(c). The habeas statute

directs a “circuit justice or judge” to issue a COA when

“the applicant has made a substantial showing of the

denial of a constitutional right.” Ibid. The Court held in

Slack v. McDaniel, 529 U.S. 473 (2000), that this standard requires the petitioner to demonstrate that “jurists

of reason would find it debatable” that the district court’s

decision was correct. Id. at 484.

Petitioner Dustin Young sought habeas relief below,

asserting that his conviction—which requires him to

Constitution given a clearcut Brady violation. He sought

habeas review, asserting that his Ohio sex offender

registration obligation renders him “in custody” within

the meaning of 28 U.S.C. § 2254.

The custody issue has openly divided the courts of

appeals. The Third Circuit has held that the restrictions

imposed by typical state sex-offender registration laws do

amount to “custody” for habeas purposes. See Piasecki v.

Court of Common Pleas, 917 F.3d 161 (3d Cir. 2019). The

Sixth Circuit has held that they do not. See Hautzenroeder

v. Dewine, 887 F.3d 737 (6th Cir. 2018). The Eleventh

Circuit recently sided with the Sixth Circuit, but it did so

“admittedly with some hesitation” because the issue is

such a close one. Clements v. Florida, 59 F.4th 1204,

1215 (11th Cir. 2023).

Young’s case arose in the Sixth Circuit. The district

court accordingly dismissed his habeas petition pursuant

to Hautzenroeder, holding that his in-person registration

obligations do not place him “in custody.”

Young sought a COA. He asserted that the custody

issue is debatable in light of the circuit split and that he

should be allowed to appeal so that he could seek en banc

review or this Court’s review. The district court agreed

that Piasecki was well reasoned and that a COA would be

warranted in ordinary circumstances, but it denied a COA

because Hautzenroeder foreclosed Young’s claim as a

matter of Sixth Circuit precedent.

Circuit Judge Raymond Kethledge likewise denied a

COA, relying on Mitchell v. United States, 43 F.4th 608

(6th Cir. 2022). There, the Sixth Circuit held that when

“[circuit] precedent bars [the petitioner’s] claim,” the

petitioner categorically “is not eligible for a certificate of

appealability.” Id. at 616. “No COA should issue where

the claim is foreclosed by binding circuit precedent

because reasonable jurists will follow controlling law.”

Ibid. (quoting Hamilton v. Secretary of the Florida

Department of Corrections, 793 F.3d 1261, 1266 (11th

Cir. 2015)). Applying Mitchell here, Judge Kethledge concluded that, because Hautzenroeder forecloses Young’s

contention that he is “in custody” as a matter of binding

Sixth Circuit precedent, Young is categorially ineligible

for a COA. He thus denied a COA.

That decision conflicts squarely with the decisions

and uniform practices of the Ninth and Tenth Circuits,

and it warrants this Court’s immediate review. As the

Ninth Circuit has put it, “[t]he fact that another circuit

[has] decided [an] issue in a different manner” from the

reviewing court’s own precedents generally makes the

issue “debatable for purposes of meeting the [Slack]

standard.” Lambright v. Stewart, 220 F.3d 1022, 1026

(9th Cir. 2000). Thus, even when a petitioner’s claim is

foreclosed by circuit precedent, a court of appeals “should

not deny [the] petitioner an opportunity to persuade [it]

through full briefing and argument to reconsider circuit

law that apparently forecloses relief.” Id. at 1026.

That approach is surely correct. What matters for

Slack’s “reasonable jurists” standard is whether the issue

is debatable as a general matter, from this Court’s perspective. To say otherwise would conflict with the plain

text of the habeas statute. It also would mean that the

right even to attempt an appeal would depend on the

circuit in which the claim arises, depending on regionally

binding lower-court precedents. Such a rule would interfere directly with this Court’s ability to resolve a wide

range of important legal issues over which the lower

courts are divided. In circuits with precedent adverse to

petitioners, appellate review of such issues would be

effectively cut off.

Habeas cases account for more than 12% of the federal

civil docket throughout the country, and they produce a

disproportionately high number of circuit splits. The

question presented is thus important and frequently

recurring. At the same time, clean vehicles for review of

the question presented are very rare. In the vast majority

of cases, the lower courts do not issue opinions respecting

the denial of a COA, making the grounds for denial less

certain. And in a great many other cases, procedural complications like defaults and waivers foreclose relief on

alternative grounds. This case has no such barriers to

further review, offering an unusually suitable vehicle.

The petition accordingly should be granted.

OPINIONS BELOW

Judge Kethledge’s opinion denying a COA is unpublished. It is available in the Westlaw database at 2024 WL

4751643 and reproduced in the appendix at 1a-4a. The

district court’s opinion denying a COA also is unpublished. It is available in the Westlaw database at 2024 WL

1793003 and reproduced in the appendix at 5a-20a.

JURISDICTION

The court of appeals denied a certificate of appealability and entered judgment on September 24, 2024. The

Court has jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

Section 2253(c) of Title 28 of the U.S. Code states in

relevant part:

(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not

be taken to the court of appeals from—

(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued

by a State court; or

(B) the final order in a proceeding under

section 2255.

(2) A certificate of appealability may issue under paragraph (1) only if the applicant has

made a substantial showing of the denial of

a constitutional right.

STATEMENT

A. Legal background

Before a habeas petitioner may appeal the dismissal

of his section 2254 habeas petition, he must first obtain a

certificate of appealability, or COA. 28 U.S.C. § 2253(c).

“The COA statute establishes procedural rules and

requires a threshold inquiry into whether the circuit court

may entertain an appeal.” Miller-El v. Cockrell, 537 U.S.

322, 336 (2003) (quoting Slack v. McDonald, 529 U.S.

473, 482, 482 (2000)).

The statute’s language is spare. Slack, 529 U.S. at

480 (“The statute [does] not explain the standards for the

issuance of a [COA].”). It specifies only that a judge or

justice may issue a COA when “the applicant has made a

substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). 1

A habeas petitioner satisfies section 2253(c)’s “substantial showing” standard when he demonstrates “that

reasonable jurists could debate whether * * * the petition

should have been resolved in a different manner or that

the issues presented [are] adequate to deserve encouragement to proceed further.” Slack, 529 U.S. at 482 (quotation marks omitted) (quoting Barefoot v. Estelle, 463 U.S.

880, 893 n.4 (1983)). Accord, e.g., Miller-El, 537 U.S. at

336; Buck v. Davis, 580 U.S. 100, 117 (2017).

The “reasonable jurists” standard asks whether the

issue is debatable as a general matter. E.g., Tennard v.

Dretke, 542 U.S. 274, 289 (2004); Lozada v. Deeds, 498

U.S. 430, 432 (1991) (per curium). In other words, the

question is whether this Court would conclude that the

issue raised on appeal “could be resolved in a different

manner from the one followed by the District Court.”

Lozada, 498 U.S. at 432. Because an issue may be debatable by this Court’s lights regardless of binding lowercourt precedent, the debatability inquiry does not turn on

whether the lower court is bound by regional precedent to

answer the question in a particular way. See Tennard,

542 U.S. at 289 (rejecting controlling Fifth Circuit

precedent adverse to the petitioner and granting a COA on

that basis). And when a circuit split exists on the issue

raised by a habeas petition, the judge or court deciding

whether to issue a COA must at least “cite [and] analyze

this line of [conflicting] authority” in deciding whether an

appeal is warranted. Lozada, 498 U.S. at 432.

Prior to AEDPA, section 2253 required habeas petitioners to obtain a certificate of probable cause, or CPC, before appealing. AEDPA

changed the label from CPC to COA but retained the same standard

for granting leave to appeal. Slack, 529 U.S. at 483-484.

B. Factual background

An Ohio state court convicted Young, then a public

university employee, of sexual imposition and abduction

based on alleged interactions with a female coworker.

Dist. Dkt. 23-18 at 2, 7. The coworker was the sole witness against Young, and Young denied her accusations.

The prosecution, in Brady disclosures made one

month before trial, disclosed “there was a pending complaint by [the coworker] with * * * [the] University.” Dist.

Dkt. 23-15 at 3. But it did not disclose evidence that the

coworker had a financial interest in accusing Young.

When cross-examined about her financial interest,

Young’s coworker testified she did not intend to sue the

university. Dist. Dkt. 23-5 at 84:24-85:9. When asked if

she had consulted with an attorney about suing, she answered with a “no,” adding “there’s no lawsuit” and

“[t]here’s not going to be.” Id. at 85:6-9.

In closing arguments, the prosecution asserted that

Young’s accuser lacked motivation to lie and would not

have “made it all up” to “get some imagined possible

money” because “[s]he’s denied all of that.” Id. at 304:12. Young ultimately was convicted.

Young later learned through public-record requests

that his accuser had lied. She in fact had “made a demand

on the university for settlement, exchanged offers and

counteroffers for settlement, and when negotiations

failed, filed a claim with the Equal Employment Opportunity Commission (EEOC) in order to preserve her ability to sue the university.” Dist. Dkt. 23-18 at 13. Neither

she nor the prosecution had disclosed these facts. Id.

Young’s motion for a new trial was denied, and his

conviction was affirmed. Dist. Dkt. 23-18. Young was

sentenced to five years of community control and 15 years

of registration under Ohio’s sex offender registration law.

See Ohio Rev. Code § 2950.01(E).

C. Procedural background

1. Young filed a section 2254 habeas petition, claiming that his due process and confrontation rights had been

violated when the prosecution failed to disclose facts

about his accuser and her financial conflict of interest.

App., infra, 2a. Young named John Swaney, the sheriff of

Madison County, Ohio, as respondent, asserting that

Young’s obligation to appear regularly before Swaney for

periodic re-registration and other purposes placed him in

“custody” under 28 U.S.C. § 2254(a). Ibid. 2

Swaney moved to dismiss the petition, arguing that

Young’s sex-offender registration requirements did not

render him “in custody.” App., infra, 2a. Relying on

Hautzenroeder v. Dewine, 887 F.3d 737 (6th Cir. 2018),

the district court granted the motion over Young’s opposition. See App., infra, 31a-33a.

2. Young moved for a COA. He argued that, despite

Hautzenroeder, the question whether his Ohio sex-offender registration requirements render him “in custody”

is debatable and deserving of further development; in particular, he expressed an intent to seek discretionary review of the custody question before the en banc Sixth Circuit or this Court. Young noted that there is a circuit split

on the question whether SORNA registrants facing restrictions similar to those imposed on him are “in custody” for section 2254 purposes.

Young subsequently added the Butler County Court of Common

Pleas as a respondent at the district court’s direction, “given that he

was still on community control when he filed his petition.” App., infra, 2a-3a. The district court later granted an unopposed motion to

dismiss the Court of Common Pleas because it was added as a respondent after Young had completed his community control. App.,

infra, 3a. The dismissal of the Court of Common Pleas has not been

appealed and is not at issue here.

The magistrate judge recommended denying Young’s

motion for a COA (App., infra, 21a-24a), and the district

court adopted the recommendation in a written opinion

(App., infra, 5a-20a). The district court quoted from the

report and recommendation at length, acknowledging

that the Third Circuit’s decision in “Piasecki is a well-reasoned opinion relying on relevant Supreme Court decisions interpreting the ‘custody’ requirement for habeas

corpus.” App. infra, 11a. But the magistrate judge, and by

extension district court, concluded that “Piasecki is irrelevant to the issue of a certificate of appealability in this

case” because no “reasonable jurist would conclude that

sex offender registration is sufficient custody in the Sixth

Circuit so long as Hautzenroeder is controlling law here.”

Ibid. (bold and underline emphases omitted).

The court continued: “If Hautzenroeder did not exist

and there were other district courts which had ruled as the

[Piasecki] court did, the undersigned would have no hesitation in recommending a certificate.” App., infra, 12a

(quoting the R&R). “While reasonable jurists might debate the meaning of custody in general,” however, “it is

indisputable that sex offender registration is not custody

in the Sixth Circuit” in light of Hautzenroeder. Ibid. (emphasis omitted).

3. Having been denied a COA by the district court,

Young sought a COA from the Sixth Circuit. The motion

was referred to Judge Kethledge, who denied a COA in a

written opinion. App., infra, 1a-4a.

Like the district court, Judge Kethledge held that

“reasonable jurists could not debate that Young’s custody argument is foreclosed by Hautzenroeder.” App., infra, 3a. “Despite Young’s reliance on Piasecki,” he explained, “this court is bound by Hautzenroeder.” Ibid.

And, he concluded, “no COA should issue where the

claim is foreclosed by binding circuit precedent ‘because

reasonable jurists will follow controlling law.’” Ibid.

(quoting Mitchell v. United States, 43 F.4th 608, 616 (6th

Cir. 2022), in turn quoting Hamilton v. Secretary of the

Florida Department of Corrections, 793 F.3d 1261, 1266

(11th Cir. 2015)).

REASONS FOR GRANTING THE PETITION

This case presents the question whether a COA may

issue when the petitioner’s claim, although foreclosed by

binding circuit precedent, implicates a split among the

courts of appeals that has not yet been resolved by this

Court. In conflict with the Ninth and Tenth Circuits, but

in agreement with the Fifth and Eleventh Circuits, the

court below has held that a COA may not issue in such

circumstances. Judge Kethledge thus denied petitioner a

COA in this case.

That decision should not stand. Aside from deepening

a clear conflict among the lower courts, it departs from

this Court’s settled precedents and will choke off this

Court’s ability to resolve circuit splits in habeas cases.

The issue is a matter of great importance. Habeas cases

are among the most common on the federal civil docket,

and it is not unusual for the courts of appeals to reach conflicting opinions in the habeas context. Because this case

presents an ideal vehicle with which to resolve the conflict, the Court should grant certiorari.

A. The courts of appeals are crisply split on the

question presented

The lower courts are deeply divided on the question

presented. Three courts of appeals, including the Sixth

Circuit, have held that an issue can never be debatable if

the petitioner’s position is foreclosed by local circuit precedent, no matter whether other courts have resolved the

issue contrariwise. Two other circuits—the Ninth and

Tenth—disagree. In those jurisdictions, a divergent

opinion from another circuit makes controlling circuit

precedent debatable for purposes of granting a COA.

1. As Judge Kethledge noted (App., infra, 4a), the

Sixth Circuit has held that “no COA should issue where

the claim is foreclosed by binding circuit precedent ‘because reasonable jurists will follow controlling law.’”

Mitchell, 43 F.4th at 616 (quoting Hamilton, 793 F.3d at

1266). That is so even when the petitioner demonstrates

that the controlling law itself is debatable, such as when

there is a circuit conflict on the issue presented. Ibid.

As the Sixth Circuit explained in Mitchell, “[controlling circuit] precedent [is] the proper reference point” for

determining whether a question is debatable for purposes

of deciding a COA under Slack. 43 F.4th at 616. Thus,

when “[circuit] precedent bars [the petitioner’s] claim,”

the petitioner categorically “is not eligible for a certificate of appealability.” Ibid.

Two other courts have reached the same conclusion.

In Hamilton, the Eleventh Circuit held that controlling

precedent bars a COA, even when the issue is the subject

of a circuit split. There, the court held that on-point

circuit precedent “ends any debate among reasonable

jurists about the correctness of the district court’s decision under binding precedent.” 793 F.3d at 1266. That

is so even when other circuit courts “ha[ve] disagreed”

with that binding precedent. Ibid.

Relying on Hamilton, the Eleventh Circuit and its district courts routinely deny COAs as barred by circuit

precedent, notwithstanding a circuit split. For example,

the court denied a COA in Lambrix v. Secretary of the

Florida Department of Corrections, 851 F.3d 1158 (11th

Cir. 2017). In doing so, it explained:

Lambrix points to an alleged circuit split, but we

need not evaluate that circuit split because Lambrix’s * * * argument is foreclosed by our binding

decision in Arthur, and his attempted appeal does

not present a debatable question because reasonable jurists would follow controlling law.

Id. at 1171. 3

The Fifth Circuit applies the same rule. In Allen v.

Stephens, 805 F.3d 617 (5th Cir. 2015), for example, that

court denied “a COA on this claim” because, although the

petitioner “cites [conflicting] precedent from the Sixth

and Seventh Circuits, we must follow our own precedent.” Id. at 633. See also Jordan v. Epps, 756 F.3d

395, 411 n.5 (5th Cir. 2014) (denying a COA because

“[w]hile the Ninth Circuit may have taken a different

approach to this question, we are bound by our own prior

precedent on this issue”). Cf. Cardenas v. Stephens, 820

F.3d 197, 204 (5th Cir. 2016) (“we will not issue a COA

in anticipation of en banc rehearing of a past decision”).

2. The Ninth and Tenth Circuits stand in square conflict with the decisions of Fifth, Sixth, and Eleventh

Circuits on the question presented here.

The lead decision on this side of the split is the Ninth

Circuit’s opinion in Lambright v. Stewart, 220 F.3d 1022

(9th Cir. 2000). There, the court held that although the

petitioner’s claim was foreclosed by circuit precedent,

“the fact that another circuit opposes” the Ninth Circuit’s position “satisfies the standard for obtaining a

COA.” Id. at 1027-28.

Pointing to this Court’s decision in Lozada, the Ninth

Circuit explained “[t]he fact that another circuit [has]

decided the issue in a different manner” from the

See also Aviles v. United States, 2022 WL 1439333, at *2 (11th

Cir.) (denying a COA because “our binding precedent holds that a

COA shall not issue if the claim is foreclosed by [circuit] precedent”

regardless of whether the “circuits are split on the issue”); Ortiz v.

United States, 2023 WL 2854427, at *9 (S.D. Fla.) (same); De Jesus

Blanco v. Florida, 2018 WL 11256059, at *3 (S.D. Fla.) (same), report and recommendation adopted, 2019 WL 11544470 (S.D. Fla.).

court’s own precedents makes an issue “debatable for

purposes of meeting the [Slack] standard.” Id. at 1026.

The court recognized that, in such circumstances, it

“should not deny a petitioner an opportunity to persuade

[it] through full briefing and argument to reconsider circuit law that apparently forecloses relief.” Id. at 1026.

Noting that its sister circuits had reached conflicting

decisions on the underlying issue in that case, the court

accordingly granted a COA. Id. at 1028.

The Ninth Circuit recently reaffirmed the Lambright

rule in Payton v. Davis, 906 F.3d 812 (2018), where it

held that “a constitutional claim is debatable if another

circuit has issued a conflicting ruling,” no matter that the

question “is well-settled in our circuit” adversely to the

petitioner. Id. at 821. See also Allen v. Ornoski, 435 F.3d

946, 951 (9th Cir. 2006) (“Even if a question is well settled in our circuit, a constitutional claim is debatable if

another circuit has issued a conflicting ruling.”). 4

The Tenth Circuit, and the district courts within it,

uniformly follow the Lambright rule. In United States v.

Crooks, 769 Fed. Appx. 569 (2019), the Tenth Circuit

held that, in light of a circuit split on the issue presented

and despite binding circuit precedent adverse to the petitioner, a COA nonetheless was warranted. A “contrary

decision” from “another circuit” was sufficient, the court

concluded, to “demonstrate[] that reasonable jurists

could debate the merits of the procedural ruling that

barred relief in this case.” Id. at 571-572.

District courts in the Ninth Circuit routinely apply the Lambright

rule. See, e.g., Safford v. Lothrop, 2018 U.S. Dist. LEXIS 202753, at

*50 (D. Ariz.); Urquijo v. United States, 2017 U.S. Dist. LEXIS

89922, at *24-25 (D. Ariz.); Kamana’o v. Frank, 2010 WL 1783560,

at *10 (D. Haw.); Tillman v. Hubbard, 2007 WL 9752024, at *1

(E.D. Cal.); Scott v. Schriro, 2007 WL 1576006, at *1 (D. Ariz.);

Washington v. Schriro, 2007 WL 756906, at *1 (D. Ariz.).

Crooks did not announce a new rule for the Tenth Circuit. Earlier, in United States v. Gomez-Sotelo, 18 Fed.

Appx. 690 (10th Cir. 2001), the court had held that “the

existence of a split among the circuits persuades us that

‘reasonable jurists could debate’” the issue presented

notwithstanding binding circuit precedent resolving it

against the petitioner. Id. at 629. And more recently in

Franklin v. Lucero, 2021 WL 4595175 (10th Cir.), the

court reaffirmed the Crooks rule, holding that “the existence of a circuit split requires us to grant * * * a COA,”

despite that binding circuit “precedent unquestionably

resolves the issue against” the petitioner. Id. at *5.

To be sure, Cooks, Franklin, and Gomez-Sotelo are

unpublished decisions. But they stand uniformly for a

single proposition—that a COA is appropriately granted

to review issues on which the circuits are split, even when

circuit precedent forecloses the petitioner’s position.

Given this uniformity, district courts within the

Tenth Circuit have treated Cooks as effectively binding.

The district court for the District of New Mexico, for

example, recently held that it “faithfully will follow the

Tenth Circuit’s decision[]” in Crooks. Rodella v. United

States, 467 F. Supp. 3d 1116, 1125-1126 (2020). Citing

Crooks and Lambright, it concluded that “because there is

a Courts of Appeals split” on the proper burden on proof

in that case, it would “grant a certificate of appealability”

on that issue notwithstanding its view that Tenth Circuit

precedent resolved the question against the petitioner. Id.

at 1126-1127. We are not aware of any decision from a

district court in the Tenth Circuit answering the question

presented here any differently. 5

For additional examples of district courts within the Tenth Circuit

following Crooks and Lambright, see, e.g., United States v. McElhiney,

2018 WL 2087142, at *2 (D. Kan.), and United States v. Paris, 2018

WL 2087187, at *2 (D. Kan.).

***

Against this background, the Court should grant review without delay. The conflict is clear and undeniable.

Habeas petitioners whose cases arise in the Fifth, Sixth,

or Eleventh Circuits (like Young’s) are being denied

COAs when the issues presented by their petitions have

been decided against them in binding circuit precedent,

despite that the issues are the subject of circuit splits and

thus plainly debatable. In the Ninth and Tenth Circuits,

identically situated petitioners are granted COAs and

thus allowed to pursue appeals, including en banc reconsideration of the adverse circuit precedent or, failing

that, this Court’s review.

The availability of appellate review should not turn

on the randomness of geography, least of all in cases

involving weighty legal questions that have divided the

courts of appeals. Only this Court’s intervention can

restore uniformity on this important question.

B. The question presented is important

The petition should be granted for the additional reason that the question presented is a matter of tremendous

practical importance. Requests for COAs are filed multiple times every day in federal courts across the country,

and proper resolution of the question presented will affect

a great number of them—including an outsized share that

present questions likely to be of interest to this Court and

as to which appellate review is imperative.

1. The answer to the question presented determines

the outcomes of countless habeas appeals every year.

Tens of thousands of habeas petitions are filed in federal

district courts annually, representing more than 12% of

the total federal civil docket. See Administrative Office of

the Courts, Judicial Business of the U.S. Courts 2023,

Table C-3 (Sept. 30, 2023), https://perma.cc/SW6EYXB4. In 2023 alone, there were nearly 2,500 appeals to

the federal circuit courts in habeas cases—a number that

includes appellate denials of COAs. Id. at Table B-1,

https://perma.cc/DL33-XAAN. The question whether a

COA should issue is a threshold issue in every such

appeal.

The question presented thus arises with great frequency. AEDPA is a complex and challenging statute; so

too are many of the substantive claims that habeas

petitioners present. The lower courts often struggle to

administer AEDPA consistently, and the statute is highly

“generative of circuit splits.” Aziz Z. Huq, Habeas and

the Roberts Court, 81 U. Chi. L. Rev. 519, 531 (2014).

Every time a new circuit split develops among the courts

of appeals—either with respect to AEDPA itself or the

underlying constitutional claims that habeas petitioners

may bring—it is a chance for the disparate approaches to

the question presented to proliferate.

We have cited two dozen recent cases turning on the

question presented. See supra pp. 9-13 & nn. 4-6. That

demonstrates frequency all on its own. But those cases are

just the tip of the iceberg. Across the circuits, the practice

is rarely (or never) to issue opinions respecting COA

decisions. Research demonstrates that the low publication rates for non-death penalty habeas corpus cases

are driven, in large part, by COA opinions. See Rachel

Brown, et al., Is Published Unequal? An Empirical Examination of the 87% Nonpublication Rate in Federal Appeals,

107 Cornell L. Rev. 1, 62-63 (2021) (noting that 4.7% of

habeas cases are published, but that the publication rate

rises to 12.3% when COA decisions are excluded).

Thus, the decisions of the Fifth, Sixth, Ninth, Tenth,

and Eleventh Circuits on the question presented here are

certain to be driving the outcomes in far more COA

decisions than meets the eye. See, e.g., Lozada, 498 U.S.

at 431 (“the Ninth Circuit also denied a certificate of

probable cause in a one-sentence order”).

2. The question presented is also important because

it has direct and substantial implications for the Court’s

management of its certiorari docket. The practical result

of the Sixth Circuit’s rule is that once a court of appeals

has issued a precedential decision on a question that has

divided the circuits in the habeas context, all further

appellate consideration of the issue within that circuit

cease if the issue is resolved against petitioners. Once

“[circuit] precedent bars [a petitioner’s] claim,” every

petitioner becomes categorically “not eligible for a certificate of appealability” on that issue moving forward.

Mitchell, 43 F.4th at 616. As the Fifth Circuit has said,

courts on this side of the split “will not issue a COA in

anticipation of en banc rehearing” or this Court’s review

(Cardenas, 820 F.3d at 204), even when the issue is

manifestly debatable on its merits.

To be sure, the Sixth Circuit’s rule is only a one-way

ratchet. If the Sixth Circuit authoritatively resolves in

petitioners’ favor a question over which there is a circuit

conflict, government respondents will still may raise the

issue on appeal. But a rule that limits appellate review to

just one side of a question is troubling in its own right.

And it is doubly so in this context, given how infrequently

district courts grant relief to habeas petitioners (and thus

how infrequently government officials appeal)—about

0.35% in noncapital cases, and 12% in capital cases. See

Nicholas Beekhuizen, Post-AEDPA Compromise: Increased Habeas Corpus Relief for Capital Cases and

Tighter Restrictions for Noncapital Cases, 10 Ind. J.L. &

Soc. Equal. 321, 332 (2022).

At bottom, under the Sixth Circuit’s rule, this Court

will almost never be presented with opportunities to

resolve circuit conflicts in habeas cases when the issue

previously has been resolved in binding circuit precedent.

The underlying question posed in a case like Tennard, for

example, would never reach this Court on its merits,

despite the practical importance of the issue and the

presence of a circuit split. This would cut off the Court’s

review of some of the most important questions that may

arise concerning AEDPA and the fair administration of

criminal justice.

C. This is an unusually clean vehicle

Although the question presented arises often, suitable vehicles with which to address it are rare. This case

offers a perfect vehicle.

To start, there is no question that the outcome here

was driven solely by the rule announced in Mitchell and

the Sixth Circuit’s prior resolution of the custody issue in

Hautzenroeder. Judge Kethledge was clear about this:

“Despite Young’s reliance on Piasecki,” he explained,

“this court is bound by Hautzenroeder,” and “reasonable

jurists will follow controlling law.” App., infra, 4a.

But the district court was equally clear that, absent

the Mitchell rule, the outcome would have been different.

It agreed that “Piasecki is a well-reasoned opinion” and

stated that, in the absence of Hautzenroeder and Mitchell,

it “would have no hesitation” granting a COA. App.,

infra, 12a (quoting the R&R). But “[w]hile reasonable

jurists might debate the meaning of custody in general,”

Hautzenroeder is controlling circuit precedent and thus

ends the debate in the Sixth Circuit. Ibid.

In this respect, it is also notable that this case involves expressly reasoned opinions on the COA question

at each stage of review. As we noted earlier (at 15), it is

far more common for district courts and courts of appeals

to deny COAs without opinion, making the basis for

decision less certain.

This case is, moreover, free from the complicating

factors that often interfere with this Court’s review of important questions in habeas cases. In many habeas cases

that reach this Court, there are evident alternative

grounds for denying relief, apart from the question on

which the petitioner seeks review. It is common, for example, for habeas cases to involve procedural defaults in

the original state-court proceedings. Other cases involve

the filing of a successive petition without leave of court to

do so. Still other petitions involve plainly unmeritorious

underlying claims or multiple questions not easily teased

apart and not all deserving of the Court’s attention.

This case suffers from none of these common obstacles to review. On the underlying merits, it involves a

single, clearly preserved constitutional claim with a solid

factual and legal basis. And there are no procedural

obstacles to relief apart from the threshold “custody”

question, which is precisely the matter on which Young

seeks a COA. In short, this is an ideal vehicle for resolution of the question presented.

D. The Sixth Circuit’s rule is wrong, and Young is

entitled to a COA

The clean presentation of a question that is practically important and has divided the circuits is plenty reason to grant the petition. The fact that the Sixth Circuit’s

rule is unquestionably wrong counsels further in favor of

certiorari review.

1. The Sixth Circuit is wrong that “[controlling circuit] precedent [is] the proper reference point” for determining whether a question is debatable for purposes of a

COA Slack. Mitchell, 43 F.4th at 616. The “reference

point” for determining whether a COA should issue is this

Court’s precedents only.

The text of the habeas statute makes this clear. In

cases challenging state court convictions under section

2254, habeas relief is warranted when the state court

decision “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28

U.S.C. § 2254(d)(1) (emphasis added). Section 2253, in

turn, specifies that a “circuit justice or judge” must issue

a COA when the district court has denied relief, but the

petitioner has made “a substantial showing of the denial

of a constitutional right.” Id. § 2253(c)(2).

These two provisions are interrelated and must be

read together. See Dolan v. U.S. Postal Service, 546 U.S.

481, 486 (2006) (statutory interpretation “depends upon

reading the whole statutory text, considering the purpose

and context of the statute”). If the question whether

habeas relief should be granted turns solely on this

Court’s precedents, so too should the question whether

the district court’s denial of relief is debatable.

This Court’s COA cases prove the point. In Tennard,

for example, the question presented had been resolved

clearly and authoritatively by Fifth Circuit precedent.

From that “reference point” (Mitchell, 43 F.4th at 616),

the issue was not debatable. But this Court, on later

review of the question whether a COA should have issued,

made clear that the Fifth Circuit’s precedent was not the

correct reference point: “Despite paying lipservice to the

principles guiding issuance of a COA,” the Court explained, the Fifth Circuit had denied a certificate based

only on “its own restrictive gloss” on this Court’s cases.

542 U.S. at 283. The Court rejected “[t]he Fifth Circuit’s

test [as having] no foundation in the decisions of this

Court.” Id. at 284 (emphasis added). Subsequently evaluating the issue from its own perspective, this Court

concluded that the petitioner in that case was “entitled to

a COA.” Id. at 289.

Circumstances were similar in Lynce v. Mathis, 519

U.S. 433 (1997). There, the Eleventh Circuit had “denied

a certificate of probable cause in an unpublished order,”

concluding that the petitioner’s claim was foreclosed by

“Eleventh Circuit and Florida precedent.” Id. at 436 (citations omitted). But this Court noted that “the Tenth

Circuit [had] reached a different conclusion on similar

facts.” Ibid. The Court thus granted a certificate of probable cause sub silencio and reversed on the merits.

Tennard and Lynce both demonstrate that the test is

not whether a reasonable district or circuit judge would

defy binding circuit precedent (obviously none would),

but whether a reasonable jurist could debate whether that

precedent was rightly decided (as is the case here). If the

Sixth Circuit were right that controlling circuit precedent

alone is “the proper reference point” for evaluating

whether a question is debatable (Mitchell, 43 F.4th at

616), neither Tennard nor Lynce could not have come out

the way that it did.

The error in the Sixth Circuit’s rule is confirmed further by Lozada, which involved an ineffective assistance

claim. The Court there faulted the Ninth Circuit, in denying a COA, for failing to consider and address the fact that

“at least two Courts of Appeals have [come to a different

conclusion] in this situation.” 498 U.S. at 432. In this

Court’s view, the Ninth Circuit’s denial of a COA was erroneous because it “did not cite or analyze this line of

[conflicting] authority.” Ibid. No less was required here,

wholly apart from any controlling circuit precedent.

2. Denying a COA based solely on controlling adverse circuit precedent is wrong for another reason: It is,

in effect, a decision on the merits rather than a more limited decision concerning debatability.

This Court has “emphasized” the COA inquiry “is

not coextensive with a merits analysis.” Buck, 580 U.S.

at 115. It is an accepted feature of the statute that “a COA

will issue in some instances where * * * ultimate relief” is

unlikely. Miller-El, 537 U.S. at 337. Indeed, that is the

rule by design. “After all, when a COA is sought, the

whole premise is that the prisoner has already failed in”

convincing a judge he or she will prevail. Ibid. (quoting

Barefoot, 463 U.S. at 893 n.4). A COA does not ask the

court to determine whether relief is likely based on circuit

precedent or any other factor—the question is only

whether “that the issues presented [are] adequate to deserve encouragement to proceed further.” Miller-El, 537

U.S. at 327.

As the Ninth Circuit rightly held in Lambright, “[t]he

Supreme Court has made clear that the application of an

apparently controlling rule can nevertheless be debatable

for purposes of” obtaining appellate review. 220 F.3d at

1025-1026. That conclusion is plainly correct and,

properly applied here, would have resulted in the issuance

of a COA.

CONCLUSION

The Court should grant the petition. Following either

summary reversal or plenary review, it should remand

with instructions to the court of appeals to grant a COA

and resolve the merits of the “custody” question.

Respectfully submitted.