Petition for Writ of Certiorari — Cynthia Davis, Warden, Petitioner v. David M. Smith
Supreme Court briefJul 27, 2026
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No. _____
In the Supreme Court of the United States
______________________________
CYNTHIA DAVIS, WARDEN,
v.
DAVID M. SMITH,
Petitioner,
Respondent.
______________________________
ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
______________________________
PETITION FOR WRIT OF CERTIORARI
______________________________
D. ANDREW WILSON
Ohio Attorney General
MATHURA J. SRIDHARAN*
Ohio Solicitor General
*Counsel of Record
SAMUEL C. PETERSON
Deputy Solicitor General
30 E. Broad St., 17th Floor
Columbus, Ohio 43215
614.466.8980
Mathura.Sridharan@OhioAGO.gov
Counsel for Petitioner
Cynthia Davis, Warden
i
QUESTION PRESENTED
Federal courts’ authority to grant habeas relief is
judgment-based. Federal courts may “entertain an
application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State
court.” 28 U.S.C. §2254(a), (b)(1)(A); see Maleng v.
Cook, 490 U.S. 488, 490–91 (1989). When a petitioner
who succeeds in obtaining federal habeas relief is retried or resentenced, that petitioner receives a new
state-court judgment. See Magwood v. Patterson, 561
U.S. 320, 341–43 (2010). Any challenge to that new
judgment requires a trip back to the state court to exhaust the remedies available there. See 28 U.S.C.
§2241(C)(3). Federal courts thus may not continue to
supervise state-court proceedings. See Pitchess v. Davis, 421 U.S. 482, 490 (1975) (per curiam).
After obtaining federal habeas relief, David Smith
was retried and resentenced in state court. He did not
file a state-court appeal. Nor did he file a second petition for a writ of habeas corpus. Instead, he sought
and received additional relief in federal court on his
original petition, alleging that the state-court proceedings failed to comply with the federal court’s habeas writ and were marred by the same constitutional
error that justified the federal court’s original writ.
The Question Presented asks:
Do federal courts have jurisdiction to grant additional habeas relief even after a successful habeas petitioner was retried, reconvicted, and resentenced in
state court—and is therefore in custody pursuant to a
new state-court judgment?
ii
LIST OF PARTIES
The Petitioner is Warden Cynthia Davis.
The Respondent is David M. Smith.
iii
LIST OF DIRECTLY RELATED PROCEEDINGS
1. State v. Smith, No. 2016CR00186 (Ohio Ct.
Common Pleas, Portage County) (first judgment entered Nov. 7, 2016; second judgment
entered April 22, 2025).
2. State v. Smith, No. 2016-P-0074, 2018 WL
6313398 (Ohio Ct. App. Dec. 03, 2018).
3. State v. Smith, No. 2019-0164, 156 Ohio St.3d
1452 (Ohio S.Ct. Feb. 4, 2020).
4. Smith v. Eppinger, No. 5:20-CV-00438-JPC,
2023 WL 4410525 (N.D. Ohio Jan. 11, 2023) (report and recommendation), adopted by 2023
WL 4071835 (N.D. Ohio June 20, 2023).
5. Smith v. Davis, No. 23-3604, 2024 WL 3596872
(6th Cir. July 31, 2024).
6. Smith v. Davis, No. 24-421, 145 U.S. 93 (2025)
(certiorari denied Jan. 27, 2025).
7. Smith v. Davis, No. 5:20-cv-438, 782 F. Supp.
3d 566 (N.D. Ohio May 12, 2025).
8. Smith v. Davis, No. 25-3383, 2026 WL 1601830
(6th Cir. June 4, 2026).
iv
TABLE OF CONTENTS
Page
QUESTION PRESENTED .......................................... i
LIST OF PARTIES .....................................................ii
LIST OF DIRECTLY RELATED PROCEEDINGS . iii
TABLE OF CONTENTS ............................................ iv
TABLE OF AUTHORITIES ..................................... vii
INTRODUCTION ....................................................... 1
OPINIONS BELOW ................................................... 4
JURISDICTIONAL STATEMENT ............................ 4
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED ................................... 4
STATEMENT .............................................................. 5
I.
The Sixth Circuit awarded David Smith
conditional habeas relief after he was
convicted in state court of attempting to
murder Quortney Tolliver. ............................ 5
II. Smith was reconvicted and resentenced
but the federal courts granted habeas
relief based on events that occurred
during his retrial. .......................................... 8
A. Smith was tried for a second time and
convicted. .................................................. 8
B. Smith
“appealed”
his
second
conviction to the original federal
habeas court rather than a state
court. ....................................................... 10
v
C. The federal district court has
continued to demand updates about
potential retrial in state court. .............. 12
REASONS TO GRANT THE PETITION................. 12
I.
The Sixth Circuit defied this Court’s
precedents by continuing to exercise
habeas jurisdiction after Smith was
retried, reconvicted, and resentenced in
state court. ................................................... 13
A. The Sixth Circuit’s decision conflicts
with this Court’s precedent. .................. 14
B. The Sixth Circuit’s decision is the
latest in a line of cases expanding
supervisory jurisdiction over statecourt proceedings. .................................. 20
C. Unlike the Sixth Circuit, other circuits
respect the jurisdiction-based line that
this Court has drawn and cabin
federal habeas jurisdiction to only a
challenged judgment. ............................. 24
II. This case presents an ideal vehicle to
address an important jurisdictional
question that has repeatedly evaded
review. .......................................................... 26
A. This case cleanly presents an
important question about federal
habeas jurisdiction that has thus far
evaded this Court’s review. ................... 26
vi
B. The extreme posture avoids harder
questions about the limits on federal
courts’ jurisdiction to enforce their
own orders. ............................................. 27
CONCLUSION.......................................................... 31
APPENDIX:
Appendix A: Opinion, United States Court of
Appeals for the Sixth Circuit, June 4, 2026 ............ 1a
Appendix B: Order, Denial of Stay Pending Appeal, United States Court of Appeals for the
Sixth Circuit, July 2, 2025...................................... 21a
Appendix C: Opinion and Order, United States
District Court for the Northern District of Ohio,
May 12, 2025 ........................................................... 70a
Appendix D: Order, Denial of Motion to Clarify,
United States Court of Appeals for the Sixth
Circuit, February 21, 2025 ..................................... 96a
Appendix E: Opinion, United States Court of
Appeals for the Sixth Circuit, July 31, 2024 ......... 97a
Appendix F: Opinion and Order, United States
District Court for the Northern District of Ohio,
June 20, 2023 ........................................................ 139a
Appendix G: Order, Denial of Rehearing En
Banc, United States Court of Appeals for the
Sixth Circuit, June 30, 2026 ................................. 155a
vii
TABLE OF AUTHORITIES
Cases
Page(s)
Alaska v. Wright,
593 U.S. 152 (2021) ............................................. 15
Allah-U-Akbar v. Bradshaw,
154 F.4th 482 (6th Cir. 2025) .................... 3, 22, 27
Army & Air Force Exch. Serv. v.
Sheehan,
456 U.S. 728 (1982) ............................................. 12
Batiste v. Scott,
134 F.3d 361, 1998 WL 27137 (1st
Cir. 1998) ............................................................. 24
Boggess v. Evans,
No.CV 06-1275, 2012 WL 6097106
(E.D. Cal. Dec. 7, 2012) ....................................... 25
Bond v. United States,
572 U.S. 844 (2014) ............................................... 1
Braxton v. United States,
500 U.S. 344 (1991) ............................................. 12
Burton v. Stewart,
549 U.S. 147 (2007) ....................................... 15, 17
In re C & M Properties, L.L.C.,
563 F.3d 1156 (10th Cir. 2009) ........................... 25
Calderon v. Moore,
518 U.S. 149 (1996) ............................................. 19
viii
Chevron, U.S.A., Inc. v. NRDC, Inc.,
467 U.S. 837 (1984) ............................................. 27
D’Ambrosio v. Bagley,
656 F.3d 379 (6th Cir. 2011) ................... 20, 21, 22
D’Ambrosio v. Bagley,
688 F.Supp.2d 709 (N.D. Ohio 2010) .................. 20
Davis v. Smith,
145 S.Ct. 93 (2025) ...................................... 1, 8, 13
Dockery v. Lee,
No.21-2234, 2022 WL 16543813 (2d
Cir. Oct. 31, 2022)................................................ 24
Encino Motorcars, LLC v. Navarro,
584 U.S. 79 (2018) ................................................. 1
Ferreia v. Sec’y, Dept. of Corr.,
494 F.3d 1286 (11th Cir. 2007) ........................... 24
Franchise Tax Bd. v. Hyatt,
587 U.S. 230 (2019) ............................................... 1
Gentry v. Deuth,
456 F.3d 687 (6th Cir. 2006) ............................... 16
Gibbs v. Frank,
500 F.3d 202 (3d Cir. 2007) ................................. 16
Hamer v. Neighborhood Hous. Servs.,
583 U.S. 17 (2017) ............................................... 31
Horne v. Dep’t of Agric.,
576 U.S. 350 (2015) ............................................... 1
ix
Hunter v. United States,
146 S.Ct.1702 (2026) ........................................... 31
Jennings v. Stephens,
574 U.S. 271 (2015) ................................. 14, 28, 30
Jensen v. Pollard,
924 F.3d 451 (7th Cir. 2019) ............................... 16
Johnson v. Bobby,
170 F.4th 523 (6th Cir. 2026) .................... 3, 22, 27
Kernan v. Cuero,
583 U.S. 1 (2017) ................................................. 19
Lackawanna Cnty. Dist. Atty. v. Coss,
532 U.S. 394 (2001) ............................................. 15
Leonardo v. Crawford,
646 F.3d 1157 (9th Cir. 2011) ............................. 16
Magwood v. Patterson,
561 U.S. 320 (2010) ...... 2, 15, 16, 17, 23, 24, 26, 30
Maleng v. Cook,
490 U.S. 488 (1989) ...... 2, 14, 15, 22, 23, 24, 25, 26
Mason v. Mitchell,
729 F.3d 545 (6th Cir. 2013) ......................... 21, 22
Neil v. Biggers,
409 U.S. 188 (1972) ............................................... 7
North Carolina v. Pearce,
395 U.S. 711 (1969) ............................................. 18
x
O’Lone v. Estate of Shabazz,
482 U.S. 342 (1987) ............................................. 23
Patterson v. Fla. Dep’t of Corr.,
849 F.3d 1321 (11th Cir. 2017) ........................... 24
Pellegrini v. Garrett,
No.2:01-cv-01382, 2021 WL 2916925
(D.Nev. July 12, 2021) ......................................... 25
Picard v. Connor,
404 U.S. 270 (1971) ............................................. 16
Pitchess v. Davis,
421 U.S. 482 (1975) ........ 1, 2, 12, 14, 21, 23, 26, 28
Ex Parte Royall,
117 U.S. 241 (1886) ............................................. 16
Shinn v. Ramirez,
596 U.S. 366 (2022) ................................... 3, 13, 16
Smith v. Davis,
782 F. Supp. 2d 566 (N.D. Ohio May
12, 2025)................................................................. 4
Smith v. Davis,
No.23-3604, 2024 WL 3596872 (6th
Cir. July 31, 2024) ................................................. 4
Smith v. Davis,
No.25-3383, 2026 WL 1601830 (6th
Cir. June 4, 2026) .................................................. 4
xi
Smith v. Eppinger,
No.5:20-CV-00438-JPC, 2023 WL
4071835 (N.D. Ohio June 20, 2023) ...................... 4
State v. Smith,
2018-Ohio-4799 (Ohio Ct. App.) ............................ 7
Taylor v. Philbin,
No.4:21-CV-214, 2022 WL 2913468
(M.D. Ga. April 15, 2022) .................................... 19
Vreeland v. Long,
No.26-1058, 2026 WL 1831653 (10th
Cir. June 25, 2026) .......................................... 2, 25
Wilkinson v. Dotson,
544 U.S. 74 (2005) ................................... 14, 15, 28
Wilson v. Flaherty,
689 F.3d 332 (4th Cir. 2012) ............................... 24
In re Wilson,
No.25-60399, 2025 U.S. App. LEXIS
21213 (5th Cir. Aug. 19, 2025) ............................ 24
Yazzie v. Ryan,
No.CV-18-8222, 2021 WL 3492068
(D.Ariz. Aug. 9, 2021) .......................................... 25
Statutes
28 U.S.C. §1254 ........................................................... 4
28 U.S.C. §2241 ............................................... 5, 15, 22
28 U.S.C. §2254 ........................4, 14, 16, 19, 23, 25, 27
1
INTRODUCTION
David Smith has been convicted in state court not
once, but twice, of almost murdering Quortney Tolliver with a hammer. Those facts may seem familiar
for some readers of this petition. That is because this
crime was the subject of a previous petition for certiorari, which drew a sharp rebuke from Justice Thomas
(joined by Justice Alito) to the Sixth Circuit for its
“taste for disregarding” the Antiterrorism and Effective Death Penalty Act (“AEDPA”). See Davis v.
Smith, 145 S.Ct. 93 (2025) (Thomas, J., dissenting
from denial of certiorari). So at first blush this case
may seem like one of those cases that returns to this
Court on unfinished business. See, e.g., Franchise Tax
Bd. v. Hyatt, 587 U.S. 230 (2019); Encino Motorcars,
LLC v. Navarro, 584 U.S. 79 (2018); Horne v. Dep’t of
Agric., 576 U.S. 350 (2015); Bond v. United States, 572
U.S. 844 (2014).
But it is not. Though this case concerns the same
crime and the same habeas petitioner who successfully challenged his first conviction, it comes to this
court after a new trial, a new conviction, and a new
sentence. But Smith did not appeal his new conviction
or sentence in state court. Nor did he file a new petition for a writ of habeas corpus in federal court. He
instead sought, and received, additional federal relief
based on his original habeas petition.
That should not have been possible. This Court
has made clear that federal courts do not have jurisdiction “to maintain a continuing supervision over a
retrial conducted pursuant to a conditional writ
granted by the habeas court.” Pitchess v. Davis, 421
U.S. 482, 490 (1975) (per curiam). And it has held that
a petitioner must be “‘in custody’ under the conviction
2
or sentence under attack at the time his petition is
filed.” Maleng v. Cook, 490 U.S. 488, 490–91 (1989).
Consistent with that principle, other circuits have
held that “[n]o reasonable jurist would debate
whether [federal courts] could offer habeas relief from
a non-existent judgment.” Vreeland v. Long, No.261058, 2026 WL 1831653, *2 (10th Cir. June 25, 2026)
(per curiam). And no circuit other than the Sixth has
traversed past this Court’s established judgmentbased limit to federal habeas jurisdiction.
Under this Court’s precedent, the Sixth Circuit
should have denied Smith’s request for additional relief because his theory of relief did not match his theory of jurisdiction. Smith sought relief based on
events that occurred during his retrial. He invoked
the Sixth Circuit’s jurisdiction, by comparison, based
on his original habeas petition. But the judgment on
which the Court’s jurisdiction was based no longer existed. It had been superseded by Smith’s new conviction and sentence. Cf. Magwood v. Patterson, 561 U.S.
320, 341–43 (2010). Once that judgment dissolved, so
too did the federal courts’ jurisdiction. Smith also
could not point to his new conviction and sentence as
the basis for federal habeas jurisdiction. He had not
exhausted his retrial-based claims in state court, nor
had he challenged the state court’s new judgment
through a new federal petition for a writ of habeas corpus.
Putting all that together, this case checks all the
boxes for certiorari review or even summary reversal.
It strictly conflicts with the judgment-based limit on
federal habeas jurisdiction announced by Maleng,
Magwood, and Pitchess. It has marooned itself on a
jurisdictional island far from any other court and from
which only this Court can rescue it. And this case is
3
the perfect vehicle to resolve the Question Presented
for two reasons. First, this is the rare case in which
the percolating problem presents itself cleanly for this
Court’s review. That is because several other Sixth
Circuit panels have blessed this expanded federal jurisdiction, but ultimately denied habeas relief, repeatedly keeping direct review out of reach. See, e.g., Allah-U-Akbar v. Bradshaw, 154 F.4th 482, 489 (6th
Cir. 2025); Johnson v. Bobby, 170 F.4th 523, 532 (6th
Cir. 2026). Second, given the extreme circumstances
of this case, this Court does not need to answer the
thornier questions of the scope of federal courts’ authority to enforce their orders. Whatever that scope
may be, it should not include granting habeas relief
based on an old judgment that was superseded by a
new one.
Worse, if left to stand, the decision below unlocks
a new level of almost limitless federal oversight over
state-court proceedings. Perhaps proving the point,
although Smith has been released from custody, the
district court continues to assert jurisdiction over this
case and any future state-court proceedings. See Order, R.76, PageID#6482–83. This Court has said, “few
exercises of federal judicial authority” intrude on
State sovereignty as much as federal habeas review.
Shinn v. Ramirez, 596 U.S. 366, 376 (2022). Of them
all, this one takes the cake.
4
OPINIONS BELOW
The district court denied Smith’s petition for habeas corpus on June 20, 2023. The opinion is available
online. Smith v. Eppinger, No.5:20-CV-00438-JPC,
2023 WL 4071835 (N.D. Ohio June 20, 2023);
Pet.App.139a. The Sixth Circuit reversed and directed the district court to issue a conditional writ.
That opinion is not published but is available online.
Smith v. Davis, No.23-3604, 2024 WL 3596872 (6th
Cir. July 31, 2024); Pet.App.97a.
Smith was retried in state court and was again
convicted. After his second conviction, the district
court awarded Smith unconditional habeas relief. The
opinion is published. Smith v. Davis, 782 F. Supp. 2d
566 (N.D. Ohio May 12, 2025); Pet.App.70a. The Sixth
Circuit affirmed the district court’s decision. Its opinion is not published but is available online. Smith v.
Davis, No.25-3383, 2026 WL 1601830 (6th Cir. June
4, 2026); Pet.App.1a.
JURISDICTIONAL STATEMENT
The Sixth Circuit issued its judgment on June 4,
2026. It denied rehearing en banc on June 30, 2026.
This petition timely invokes the Court’s jurisdiction
under 28 U.S.C. §1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
28 U.S.C. §2254(a) and (b)(1) provide in relevant
part that:
(a) The Supreme Court, a Justice thereof, a circuit
judge, or a district court shall entertain an application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a
5
State court only on the ground that he is in custody
in violation of the Constitution or laws or treaties
of the United States.
(b)(1) 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 unless it
appears that—
(A) the applicant has exhausted the remedies
available in the courts of the State
28 U.S.C. §2241(c)(3) provides in relevant part
that:
(c) The writ of habeas corpus shall not extend to a
prisoner unless—
…
(3) He is in custody in violation of the Constitution or laws or treaties of the United States;
STATEMENT
I.
The Sixth Circuit awarded David Smith
conditional habeas relief after he was convicted in state court of attempting to murder Quortney Tolliver.
Quortney Tolliver was a drug dealer—and David
Smith was one of her clients. Trial Tr. Vol.2, R. 10-3,
PageID#985–87, 997–1000. Smith reached out to Tolliver about obtaining drugs and the two texted back
and forth about his request—including haggling over
the price. See id. at PageID# 997–1009. Tolliver and
Smith concluded their negotiations around 11 p.m.
6
and Smith texted that he would see Tolliver “tomorrow.” Id. at PageID#1007–08.
The conversation resumed the next morning. Tolliver told Smith that she needed a ride to Cleveland so
she could get Smith the drugs he wanted, and Smith
texted her at 10 a.m. to say that he would come pick
her up. Id. at PageID#1010–11. Smith checked in at
10:40 a.m. to see whether Tolliver was “ready” and,
after further discussion, called to let Tolliver know
that he was “up the street” and asked if he could come
pick her up. Id. at PageID#1012–13. Tolliver said
that he could. Id.
Not long after that call ended, Tolliver was attacked with a hammer. Trial Tr. Vol.7, R.10-8,
PageID#2254–55. Tolliver testified at trial that in the
moments leading up to the attack, Smith knocked on
Tolliver’s door, and she opened it for him. Trial Tr.
Vol.2, R. 10-3, PageID#1014. When Tolliver turned
around to finish getting ready, she felt a blow to her
head. Id. She “turned back around” and “looked at
[Smith] and … got another hit” to the head before
blacking out. Id. Tolliver eventually woke up in a
hospital. Id.
Tolliver was less than forthcoming when the police
initially interviewed her. When the police approached
Tolliver while she was recovering at a rehabilitation
center and showed her a photo of Smith, Tolliver denied knowing him very well. Trial Tr. Vol.7, R.10-8,
PageID#2245–49. Even at the time, the police did not
credit her denials. Tolliver was out on bond, id. at
PageID#2247, and the officer who interviewed Tolliver believed that she was lying to avoid implicating
herself in criminal activity and to hide the fact that
she was a drug dealer from her mother, who was
7
present during the initial interview.
Id. at
PageID#2247–48, 2245. The officer’s suspicion proved
to be correct, as Tolliver later stated that she was certain that Smith was the one who attacked her. Id. at
PageID#2254.
Tolliver’s testimony was not the only thing that
linked Smith to the attack. Phone records placed
Smith at Tolliver’s residence. Smith’s own words, preserved in the text messages with Tolliver, showed that
he was coming to her house. See above at 5–6. Celltower location data did the same; it showed that, at
the time of the attack, Smith’s cell phone was communicating with a cell-phone tower located less than
1,800 feet from Tolliver’s home. Trial Tr. Vol.7, R.108, PageID#2223, 2230–34. DNA evidence also linked
Smith to the scene. Although the quality of the sample was poor, two DNA samples from Tolliver’s sink
matched Smith’s DNA profile with a 1 in 3,914 and 1
in 155 chance of not being his. Trial Tr. Vol.6, R.10-7,
PageID#1843–47.
An Ohio jury convicted Smith of attempted murder
and other counts. State v. Smith, 2018-Ohio-4799,
¶¶3 (Ohio Ct. App.). The state trial court sentenced
Smith to 22 years in prison. Id. at ¶4. A state appellate court affirmed, holding in relevant part that the
trial court did not err by failing to suppress Tolliver’s
testimony identifying Smith as her attacker. Id. at
¶¶8, 49.
Smith petitioned for a writ of habeas corpus in federal court. The district court denied Smith’s petition,
Pet.App.139a, but a Sixth Circuit panel majority reversed, Pet.App.98a. Over Judge Thapar’s dissent,
the habeas panel held that the Ohio courts misapplied
the Supreme Court’s decision in Neil v. Biggers, 409
8
U.S. 188 (1972), when they permitted the State to introduce Tolliver’s identification of Smith as her attacker. Pet.App.108a–128a; see also id. at 129a–138a
(Thapar, J., dissenting). That identification, the panel
majority held, was tainted by impermissibly suggestive questioning by the police. Pet.App.109a–111a.
The habeas panel ordered the district court to issue a
writ of habeas corpus “unless the State proceeds,
within 180 days, to prosecute Smith in a new trial
without utilizing Tolliver’s identification of Smith,
which,” the panel majority held, “shall be suppressed
and excluded from evidence.” Pet.App.128a.
This Court denied the Warden’s petition for a writ
of certiorari. Justice Thomas, joined by Justice Alito,
dissented. Davis v. Smith, 145 S.Ct. 93 (2025). Writing that the panel “blatantly disregard[ed]” AEDPA
and Supreme Court precedent, the dissent would have
summarily reversed the grant of habeas relief “to ensure that federal courts do not exceed their very limited role in collateral review of state criminal convictions.” Id. at 97–98.
II.
Smith was reconvicted and resentenced
but the federal courts granted habeas relief based on events that occurred during
his retrial.
A.
Smith was tried for a second time
and convicted.
The State retried Smith within the 180 days that
the panel’s conditional writ allowed. And while the
State did not introduce evidence about Tolliver’s
tainted identification of Smith, it did elicit testimony
indicating that Smith was the person who was at Tolliver’s door just before the attack. See Pet.App.23a;
see also id. at 62a (Thapar, J., dissenting) (noting the
9
difference between “prohibited testimony that Smith
was the attacker” and “Tolliver’s actual testimony
that Smith arrived at her home before the attack”).
This was done consistent with the state court’s orders. In an attempt to faithfully implement the federal courts’ orders, the state trial court reviewed the
Sixth Circuit’s opinion and concluded that the Sixth
Circuit’s instructions about what evidence was inadmissible at retrial could “only logically pertain to [Tolliver’s] identification of [Smith] as her attacker, not as
an individual she had interaction and contact with
prior to and including the day of the incident.” Tolliver’s other interactions with Smith, the state court
noted, were not affected by the suggestive identification procedure that the Sixth Circuit found problematic and were “confirmed by [Smith’s] own statement
and phone records.” See Judgment Entry, State v.
Smith, No.2016CR186, attached to Smith v. Davis,
6th Cir. No.23-3604, Mtn. to Clarify, Doc.28 at p.19.
Smith sought to preempt Tolliver’s testimony.
Shortly before his retrial was scheduled to begin in
state court, Smith filed a “Motion for Clarification of
Conditional Writ” in which he asked the Sixth Circuit
to prevent the State from introducing not just Tolliver’s tainted identification, but any evidence about
Tolliver’s interactions with Smith. See Smith v. Davis, 6th Cir. No.23-3604, Mtn. to Clarify, Doc.28. The
Sixth Circuit denied Smith’s motion the next day
without comment and without asking the Warden to
respond. Pet.App.96a.
Smith was ultimately convicted and sentenced for
a second time. See Pet.App.3a.
10
B.
Smith “appealed” his second conviction to the original federal habeas
court rather than a state court.
Rather than filing a state-court appeal, Smith proceeded directly to federal court. Arguing that his retrial was inconsistent with the original panel’s conditional writ (which the panel granted based on supposed errors in the first trial affecting the first conviction), Smith sought and obtained an order from the
district court “enforc[ing]” that writ. Pet.App.70a–
71a.
The Warden asked the habeas panel to stay the
district court’s order pending appeal. The panel declined, concluding in part that the Warden’s appeal
was unlikely to succeed. Pet.App.28a. Most significantly, it gave little weight to the Warden’s challenge
to the district court’s jurisdiction to review the statecourt retrial proceedings. Federal habeas jurisdiction
terminates, the panel wrote, either when a State satisfies the terms of a conditional writ of habeas corpus,
or when it releases a habeas petitioner and vacates his
conviction. Pet.App.29a.
The panel concluded that the Warden had done
neither. On jurisdiction—the panel rejected the Warden’s argument that the district court lost jurisdiction
when Smith’s initial conviction was vacated.
Pet.App.31a–36a.
The factors that the Warden
pointed to as evidence of vacatur, including Smith’s
transfer from state prison to county jail, the setting of
a new bond, and the granting of a new trial, were, in
the panel’s opinion, insufficient. See id. On the merits—the panel declined to recognize a difference between testimony identifying Smith as Tolliver’s attacker and testimony that Tolliver allowed Smith into
11
her home moments before the attack. Pet.App.30a–
31a. Finding that the stay factors favored Smith, the
panel denied the Warden’s motion for a stay and ordered that Smith be released immediately.
Pet.App.41a.
Judge Thapar again dissented. He wrote that the
majority “misunderst[ood] the limited nature of the
extraordinary writ of habeas corpus,” and would have
granted the stay because the district court lacked jurisdiction. Pet.App.53a (Thapar, J., dissenting). It
was without jurisdiction, Judge Thapar wrote, both
because Smith’s conviction had been vacated and because the terms of the conditional writ had been satisfied. Pet.App.46a–47a. Judge Thapar would have
held that the totality of the circumstances demonstrated that Smith’s conviction had been vacated.
Pet.App.47a–53a. Finally, Judge Thapar highlighted
a constitutional problem with the majority’s conclusion that Smith’s original conviction was never vacated: If Ohio had not “vacate[d] Smith’s conviction
before re-trying him for the same offense, then Smith’s
second trial violated the Double Jeopardy Clause.”
Pet.App.55a.
On the merits, the habeas panel’s opinion largely
tracked its stay analysis. As foreshadowed by that
earlier opinion, the panel majority held that the district court had jurisdiction to issue an unconditional
writ of habeas corpus both because the State had not
complied with the earlier conditional writ and because
Smith’s original conviction had never been vacated.
Pet.App.7a–17a.
Judge Thapar dissented yet again. He again emphasized that the majority engaged in a “severe and
unprecedented intrusion onto state sovereignty.”
12
Pet.App.19a (quotation omitted) (Thapar, J., dissenting). He noted that the majority’s opinion conflicted
with this Court’s precedent by allowing the district
court to “‘maintain a continuing supervision over
[Smith’s] retrial.’” Pet.App.20a. (quoting Pitchess, 421
U.S. at 490).
The Warden sought rehearing en banc, but “no
judge … requested a vote on the suggestion for rehearing en banc,” and the Sixth Circuit denied that petition. Pet.App.155a. Smith was released from the
Warden’s custody.
C.
The federal district court has continued to demand updates about potential retrial in state court.
After the Sixth Circuit issued its mandate, the district court issued a new order in which it continued to
supervise Smith’s state-court proceedings. See Order,
R.76, PageID#6482–83. The order required the Warden to update the district court on the locally elected
prosecutor’s plans to potentially retry Smith for a
third time. Id. If the prosecutor intends to retry
Smith, the district court demanded briefing from the
Warden on whether either the Fifth Amendment’s
Double Jeopardy Clause or the Sixth Circuit’s original
conditional writ prevents such a retrial. Id.
REASONS TO GRANT THE PETITION
The decision below completes the checklist for this
Court’s certiorari review. It is “in conflict with [this
Court’s] precedents.” See Army & Air Force Exch.
Serv. v. Sheehan, 456 U.S. 728, 733 (1982). It so far
exceeds the views of other federal courts that it places
the Sixth Circuit on an island of one. See Braxton v.
United States, 500 U.S. 344, 347 (1991). And it
13
greenlights “intru[sions] on state sovereignty to a degree matched by few exercises of federal judicial authority,” Shinn v. Ramirez, 596 U.S. 366, 376 (2022),
by allowing federal courts to meddle in state-court
proceedings even after the judgment invoking the
court’s jurisdiction has been replaced by a new one after a retrial.
The Sixth Circuit may have been “reluctan[t]” to
“deploy[] en banc review” in this case, see Davis v.
Smith, 145 S.Ct. 93, 97 (2025) (Thomas, J., dissenting), but this Court should not be so hesitant about
exercising its own authority now to correct a grave jurisdictional error.
I.
The Sixth Circuit defied this Court’s precedents by continuing to exercise habeas
jurisdiction after Smith was retried, reconvicted, and resentenced in state court.
This Court has consistently held that the federal
habeas power is focused on state court judgments.
The Sixth Circuit disregarded this judgment-based
limit on its jurisdiction—and not for the first time.
This jurisdictional creep now allows federal courts in
the Sixth Circuit to exercise jurisdiction based on expired state-court judgments and to supervise statecourt proceedings even after a habeas petitioner has
been retried, reconvicted, and resentenced in state
court. In the Sixth Circuit at least, jurisdiction is endless. Indeed, the federal habeas court in this case continues to supervise a potential third trial before it has
even begun. Tellingly, no other Circuit has come close
to such an expanded view of federal habeas jurisdiction. The Sixth Circuit stands so far apart from the
other circuits in flouting this Court’s law that the
Warden cannot fairly claim that a true split exists.
14
That is because to ask the Question Presented is to
answer it—in the negative.
A.
The Sixth Circuit’s decision conflicts with this Court’s precedent.
1. As is relevant here, federal courts may entertain
petitions for writs of habeas corpus from persons “in
custody pursuant to the judgment of a State court.” 28
U.S.C. §2254. At common law, a writ of habeas corpus
“authorized a single form of relief: the prisoner’s immediate release from custody.” Wilkinson v. Dotson,
544 U.S. 74, 85 (2005) (Scalia, J., concurring). And
while AEDPA broadened the relief available to “permit relief short of release,” see id., the Court has held
that federal courts do not possess “supervisory authority over state trial courts,” Jennings v. Stephens, 574
U.S. 271, 278 (2015). Federal courts, in other words,
may not “maintain a continuing supervision over a retrial conducted pursuant to a conditional writ granted
by the habeas court.” Pitchess v. Davis, 421 U.S. 482,
490 (1975). This important limitation flows from
three foundational habeas principles.
First, it flows from the requirement that a habeas
petitioner must be “‘in custody’ under the conviction
or sentence under attack at the time his petition is
filed.” Maleng v. Cook, 490 U.S. 488, 490–91 (1989).
AEPDA permits federal courts to “entertain an application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court
only on the ground that he is in custody in violation of
the Constitution or laws or treaties of the United
States.” §2254(a). Custody is an absolute requirement. AEDPA also provides that “the writ of habeas
corpus shall not extend to a prisoner unless … [h]e is
in custody in violation of the Constitution or laws …
15
of the United States.”
added).
§2241(c), (c)(3) (emphasis
Consistent with AEPDA’s custody requirements,
the Court has held that federal courts lose jurisdiction
over a habeas petition when a petitioner’s conviction
has fully expired. Maleng, 490 U.S. at 491–92; see also
Alaska v. Wright, 593 U.S. 152, 153–54 (2021) (per curiam). A petitioner who is “no longer serving the sentences imposed” pursuant to a state-court conviction
“cannot bring a federal habeas petition directed solely
at” that conviction. Lackawanna Cnty. Dist. Atty. v.
Coss, 532 U.S. 394, 401 (2001). While some collateral
consequences are sufficient to satisfy the custody requirement, the mere possibility of such consequences
is not enough to confer jurisdiction. Maleng, 490 U.S.
at 492.
Second, the limitation on continuing supervision
flows from the clear lines that the Court has drawn at
state-court judgments. The Court has held that when
a successful habeas petitioner seeks additional habeas
relief after having been resentenced in state court, the
new sentence constitutes a “‘new judgment intervening between the two habeas petitions.’” Magwood v.
Patterson, 561 U.S. 320, 339 (2010) (quoting Burton v.
Stewart, 549 U.S. 147, 156 (2007)); cf. also Dotson, 544
U.S. at 83 (distinguishing between a judgment authorizing a petitioner’s confinement and a “new judgment” obtained through a new trial). When a habeas
petitioner receives a new judgment, any petition that
challenges that judgment is a “new” petition under
AEDPA and is not a “second or successive” petition for
purposes of §2244(b). Magwood, 561 U.S. at 342.
Third, the limitation on continuing supervision
flows from the exhaustion requirement that has
16
always attached to federal courts’ habeas power. See
Picard v. Connor, 404 U.S. 270, 275–76 (1971) (citing
Ex Parte Royall, 117 U.S. 241 (1886)). The exhaustion
requirement is now codified in §2254(b)(1)(A), which
states that 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 unless it
appears that the applicant has exhausted the remedies available in the courts of the State.” Exhaustion
requires a habeas petitioner to first challenge a statecourt judgment in “state court in accordance with
state procedures.” Shinn, 596 U.S. at 371. Such a requirement “reflects a policy of federal-state comity”
and permits federal courts to entertain habeas claims
“[o]nly if the state courts have had the first opportunity to hear the claim sought to be vindicated in a
federal habeas proceeding.” Picard, 404 U.S. at 276.
And it means, combined with Magwood, that a habeas
petitioner who receives a new judgment must start
again in state court—by complying with the exhaustion requirements that apply to all new habeas petitions.
These principles do more than just limit federal habeas courts’ jurisdiction. They also restrict how far
federal courts may go in enforcing their own orders. It
is well-settled among the circuits that federal courts
generally retain jurisdiction to enforce the terms of
their conditional orders. See Gibbs v. Frank, 500 F.3d
202, 205 (3d Cir. 2007); Jensen v. Pollard, 924 F.3d
451, 454 (7th Cir. 2019); Leonardo v. Crawford, 646
F.3d 1157, 1161 (9th Cir. 2011); Gentry v. Deuth, 456
F.3d 687, 692 (6th Cir. 2006). But that power is limited by §2254 and §2241, which authorize federal
courts to entertain habeas petitions only when those
petitions are filed by individuals in custody pursuant
17
to a state-court judgment. That means jurisdiction to
grant habeas relief runs out where custody and the
judgment end.
2. The Sixth Circuit disregarded all of this. Most
significantly, when it granted Smith habeas relief for
the second time, it ignored this Court’s precedents
both defining a “judgment” and requiring that the
judgment remain undisturbed throughout a habeas
proceeding.
The Sixth Circuit agreed that it would have lacked
jurisdiction to award Smith additional habeas relief if
Smith’s original conviction had been vacated. The
panel simply concluded that it had not been. See
Pet.App.6a–7a, 10a–17a. That conclusion conflicts
with Magwood. And it ignores the most compelling
evidence that Smith was no longer in custody pursuant to the state-court judgment that he originally
challenged: his entirely new conviction and sentence.
Smith’s second conviction should have provided irrefutable proof that he was no longer in custody pursuant to his original state-court judgment. No one disputes that Smith was retried after the Sixth Circuit
issued its conditional writ of habeas corpus, he was
convicted of attempted murder for a second time, and
he was sentenced on that second conviction. That
means that, when Smith sought additional habeas relief in federal court, he was not in custody pursuant to
the judgment that his habeas petition originally challenged. He was instead in custody pursuant to his new
state-court conviction. See Magwood, 561 U.S. at 324;
see also Burton, 549 U.S. at 156 (a judgment in a criminal case consists of a conviction and sentence).
As Judge Thapar noted in dissent, if Smith’s original judgment of conviction remained in place, then the
18
second judgment would have violated the Fifth
Amendment’s Double Jeopardy Clause.
See
Pet.App.55a–57a (Thapar, J., dissenting from the denial of a stay pending appeal). The Double Jeopardy
Clause prohibits, in relevant part, “a second prosecution for the same offense after conviction” and “multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717 (1969). As Judge
Thapar noted, if Smith’s original conviction had not
been vacated, then a retrial would, by itself, violate
these prohibitions. See id. And if even a trial by itself
would have run afoul of the Double Jeopardy Clause,
then there can be no question that a second judgment
of conviction for the same offense would have.
The Sixth Circuit majority largely ignored Smith’s
second judgment of conviction. It wrongly focused on
whether Smith’s conviction had been vacated “before
retrial.” See Pet.App.31a (denying stay pending appeal) (emphasis added); Pet.App.10a–17a (focusing on
events that occurred before retrial). And the circuit
precedent on which the Sixth Circuit relied similarly
involved pretrial events. See Pet.App.10a–17a. To be
clear, even the pretrial events demonstrated that
Smith’s conviction had been vacated; as Judge Thapar
wrote in dissent, the “totality of the circumstances”
showed that was the case.
See Pet.App.20a;
Pet.App.49a–53a. But even if Smith’s conviction had
not been vacated before he was retried, his new conviction and sentence were, by themselves, incontrovertible evidence that his earlier conviction had been
vacated after the conclusion of that trial. The resulting new judgment should have divested the federal
courts of jurisdiction over this case.
The Sixth Circuit’s contrary decision cannot be justified on the basis that Smith’s second trial allegedly
19
involved the same type of constitutional errors that
infected the first trial. If Smith were challenging the
new state-court judgment, then the exhaustion requirements found in §2254(b)(1)(A) would apply. See
Taylor v. Philbin, No.4:21-CV-214, 2022 WL 2913468,
*2 (M.D. Ga. April 15, 2022). But Smith did not even
try to satisfy those requirements; he never appealed
his new conviction or otherwise challenged in state
court the new judgment that now justified his detention.
Smith’s failure should have posed an insurmountable barrier to further relief. But it did not even slow
the Sixth Circuit majority down. The Sixth Circuit
awarded him a second round of habeas relief even
though it acknowledged that Smith was attacking a
new and different judgment born from a new trial and
new sentence. See Pet.App.23a (denying a stay because Smith’s “retrial suffered from the same constitutional defect as his initial trial”); Pet.App.7a–9a
(granting merits relief based on events at retrial).
A coda before proceeding. This Court has said that
States may seek further review of a grant of habeas
relief even after the judgment that provides the foundation for habeas jurisdiction has been vacated and
replaced with a new judgment. In Kernan v. Cuero,
583 U.S. 1 (2017) (per curiam), for example, the Court
held that even after a state-court resentencing, federal courts retain jurisdiction to “undo what [a] habeas corpus court did.” Id. at 6 (quotation omitted);
see also Calderon v. Moore, 518 U.S. 149 (1996) (per
curiam) (reversing grant of habeas relief even though
“the administrative machinery necessary for a new
trial has been set in motion”). But that asymmetry
does not render false the judgment-based line that the
Warden draws here. Reversing relief is meaningfully
20
different from granting additional relief, which is
what Smith sought.
B.
The Sixth Circuit’s decision is the
latest in a line of cases expanding
supervisory jurisdiction over statecourt proceedings.
This is not the first or only case in which the Sixth
Circuit has exceeded its habeas jurisdiction by continuing to supervise state-court proceedings. The initial
excursions started small. They began with the time
after writ issuance but before writ compliance. They
then extended after writ compliance. They finally
grew all the way beyond retrial, reconviction, and resentencing. The Court should take this opportunity to
prune this jurisdictional Audrey II before the Sixth
Circuit becomes the “Little Shop of Horrors.”
After writ issuance. One of the first examples of
the Sixth Circuit’s dramatic expansion of federal habeas jurisdiction came in D’Ambrosio v. Bagley, 656
F.3d 379 (6th Cir. 2011), cert. denied, 565 U.S. 1185
(2012). That decision, which laid the groundwork for
many of the decisions that followed, prohibited the retrial of a successful habeas petitioner based on events
that occurred after a federal court had issued an unconditional writ of habeas corpus. Id. at 383 (quoting
D’Ambrosio v. Bagley, 688 F.Supp.2d 709, 727–28
(N.D. Ohio 2010) as prohibiting retrial based on the
State’s conduct ahead of retrial). According to the
Sixth Circuit, Rule 60(b) gives federal habeas courts
the power to act even “after [an] unconstitutional conviction [is] dispensed with.” Id. Federal habeas
courts, D’Ambrosio held, have “continuing jurisdiction
over [a] grant of an unconditional writ of habeas corpus pursuant to a Rule 60(b) motion as long as it had
21
jurisdiction to grant the unconditional writ in the first
place.” Id. at 388.
Judge Boggs dissented in D’Ambrosio. He wrote
that the D’Ambrosio majority ignored this Court’s decision in Pitchess, 421 U.S. at 486–87, when it relied
on Rule 60(b) as a basis for asserting supervisory authority over the state-court proceedings. See D’Ambrosio, 656 F.3d at 393–95 (Boggs, J., dissenting).
Judge Boggs wrote that it was “particularly troubling,” that the majority in D’Ambrosio, “permit[ed]
federal courts to order habeas relief not only based on
the conditions leading to an underlying conviction, but
also based on the conditions of an ongoing state criminal proceeding.” Id. at 397.
After writ compliance. The Sixth Circuit’s subsequent decisions (including the one at issue here)
have steadily expanded D’Ambrosio’s already-broad
interpretation of its habeas jurisdiction. In Mason v.
Mitchell, 729 F.3d 545 (6th Cir. 2013), for example,
the Sixth Circuit continued to exercise jurisdiction
over a habeas petition even though the petitioner’s unconstitutional sentence had undoubtedly been vacated. See id. at 549. According to Mason, federal
courts have supervisory jurisdiction to decide, “in conjunction with a determination of whether [a] state
complied with a conditional writ … whether to bar
reprosecution,” even after a State has complied with a
conditional writ and vacated a petitioner’s conviction
or sentence. Mason, 729 F.3d at 550 (citing D’Ambrosio, 656 F.3d at 389–90).
Sailing even further from shore, the Sixth Circuit
recently claimed jurisdiction to supervise state-court
proceedings after the conditions of a writ of habeas
corpus have been fully satisfied. Relying on Mason’s
22
broad theory of federal-habeas jurisdiction, the Sixth
Circuit held that federal appellate courts “retain[] jurisdiction to review a district court’s decision to convert a conditional writ to an unconditional writ despite the state’s subsequent compliance” with that
writ. Allah-U-Akbar v. Bradshaw, 154 F.4th 482, 489
(6th Cir. 2025) (citing Mason, 729 F.3d at 549–50).
Now, in the Sixth Circuit at least, federal courts retain
jurisdiction to impose sanctions on a State that has
fully complied with a writ of habeas corpus simply because they believe that the State did not do so quickly
enough. See id.
Like Judge Thapar in this case, and Judge Boggs
in D’Ambrosio, Judge Griffin dissented from the majority’s jurisdictional holdings in Allah-U-Akbar. Id.
at 497–501. As the dissent did in D’Ambrosio, he emphasized the fact that 28 U.S.C. §2241 states in relevant part that the “writ of habeas corpus shall not extend to a prisoner unless,” he is “in custody in violation of the Constitution or laws or treaties of the
United States.” Allah-U-Akbar, 154 F.4th at 497(Griffin, J., dissenting) (quoting §2241(c)(3)). And once an
“unconstitutional judgment is gone,” he wrote, “so too
is federal jurisdiction.” Id. at 498 (Griffin, J., dissenting) (quotation omitted). As in this case, however, the
dissent’s objections in Allah-U-Akbar fell on stony
ground.
After new judgment. Finally, in a decision that
foreshadowed the one at issue here, the Sixth Circuit
recently held that even the “[i]ssuance of a new judgment … does not strip us of our inherent and constitutionally recognized habeas power.” Johnson v.
Bobby, 170 F.4th 523, 532 (6th Cir. 2026). Directly
contradicting Maleng, it further held that a federal
habeas court’s jurisdiction is not “limited to the
23
judgment that [a] §2254 petition attacked.” Id. at 531.
That decision, which ultimately denied habeas relief,
was grounded in the type of custody-focused analysis
that this Court rejected in Magwood in favor of a judgment-focused inquiry. See id. at 532; see also Magwood, 561 U.S. at 333–34.
This case is therefore just the latest example of the
Sixth Circuit’s insatiable jurisdictional appetite.
Each of its decisions takes another step away from
Pitchess’s understanding of limited federal-habeas jurisdiction. As long as it remains uncorrected, the
Sixth Circuit’s broad jurisdictional precedent “lies
about like a loaded weapon ready for the hand of any
[court] that can bring forward a plausible claim of an
urgent need.” O’Lone v. Estate of Shabazz, 482 U.S.
342, 357–48 (1987) (Brennan, J., dissenting) (quotation omitted).
Indeed, the district court below already has. Already in this case, it has viewed the Sixth Circuit’s
precedent as an invitation to continue to supervise
any potential state-court retrial of Smith. Even
though Smith has been released from the Warden’s
custody, the district court has inquired about whether
the State intends to retry Smith and implied that
there may be limits on its ability to do so. See Order,
R.97. The district court’s order is plainly impermissible under Pitchess because, even if there is yet another
retrial in this case, the jurisdictional hook for federalhabeas jurisdiction (the offending first judgment) has
been vacated, and twice over at this point.
24
C.
Unlike the Sixth Circuit, other circuits respect the jurisdiction-based
line that this Court has drawn and
cabin federal habeas jurisdiction to
only a challenged judgment.
Unlike the Sixth Circuit in this case, most federal
courts have acknowledged that federal habeas jurisdiction starts and ends with a challenged judgment.
Some, pointing to Maleng, recognize that AEDPA’s
custody requirement demands “‘that [a] habeas petitioner be “in custody” under the conviction or sentence
under attack at the time his petition is filed’” and that
federal courts lack jurisdiction to consider challenges
to any other convictions. Dockery v. Lee, No.21-2234,
2022 WL 16543813, *2 (2d Cir. Oct. 31, 2022) (quoting
Maleng) (emphasis in original); see also Batiste v.
Scott, 134 F.3d 361 (table), 1998 WL 27137 (1st Cir.
1998) (per curiam); Wilson v. Flaherty, 689 F.3d 332,
337 (4th Cir. 2012); In re Wilson, No.25-60399, 2025
U.S. App. LEXIS 21213, *1 (5th Cir. Aug. 19, 2025)
(per curiam). Others point to Magwood’s similar rule.
The Eleventh Circuit has held, for example, that Magwood made clear “that the only judgment that counts”
for habeas purposes “is the judgment ‘pursuant to’
which the prisoner is ‘in custody.’” Patterson v. Fla.
Dep’t of Corr., 849 F.3d 1321, 1326 (11th Cir. 2017) (en
banc); cf. also Ferreia v. Sec’y, Dept. of Corr., 494 F.3d
1286, 1293 (11th Cir. 2007) (holding before Magwood
that a federal court’s habeas power is “focused on the
judgment which holds the petitioner in confinement”).
Consistent with this Court’s judgment-focused approach, the Tenth Circuit has held that federal courts
do not have jurisdiction to consider challenges to
state-court judgments that no longer have any legal
effect. Magwood, the Tenth Circuit held, “makes clear
25
that a §2254 application challenges a particular judgment.” Vreeland v. Long, No.26-1058, 2026 WL
1831653, *2 (10th Cir. June 25, 2026) (per curiam)
(denying a certificate of appealability). When that
judgment “no longer ha[s] any effect,” a federal district court cannot “offer habeas relief” based on the
“non-existent judgment” and must dismiss a habeas
challenge to that judgment “for lack of subject-matter
jurisdiction.” Id. The Tenth Circuit found that this
jurisdictional question is not a close call; it is so settled
that “[n]o reasonable jurist” would disagree. Id.
Finally, several district courts in the Ninth Circuit
have, like the Tenth Circuit, concluded that federal
courts do not have jurisdiction over challenges to a nolonger-effective state-court judgment. One held that
a habeas challenge was moot when a petitioner was
resentenced and therefore was “no longer in custody
pursuant to the original judgment of conviction, which
[was] the judgment of conviction challenged in the habeas petition.” Pellegrini v. Garrett, No.2:01-cv01382, 2021 WL 2916925, *2 (D.Nev. July 12, 2021).
Another held that a petitioner’s resentencing deprived
it of jurisdiction over a challenge to petitioner’s original sentence. Yazzie v. Ryan, No.CV-18-8222, 2021
WL 3492068, *4 (D.Ariz. Aug. 9, 2021) (applying
Maleng). And a third concluded that it had no jurisdiction to consider in the first instance any challenges
to a state-court resentencing. Boggess v. Evans,
No.CV 06-1275, 2012 WL 6097106, *2 (E.D. Cal. Dec.
7, 2012). In so holding, it noted that federal courts
retain “no jurisdiction to enforce any conditions concerning issues remanded to state court.” Id. (citing In
re C & M Properties, L.L.C., 563 F.3d 1156, 1162 (10th
Cir. 2009) for the principle that “[a]ny district court
26
order putatively deciding any aspect of a claim remanded to state court is but an advisory opinion”).
These cases do not conflict with the Sixth Circuit’s
decision in the more traditional sense. For good reason. None asks the relevant question—whether a federal habeas court can supervise a second (and potentially a third) trial after the judgment giving rise to
jurisdiction has been replaced by a new one. That is
because there should be no debate on the answer. And
the fact that this question is not asked in cases from
other circuits illustrates how far afield the Sixth Circuit has strayed from this Court’s precedent in Pitchess, Maleng, and Magwood. The Sixth Circuit should
not be able to insulate its decision from review by exercising continuing supervisory jurisdiction in a way
that no other circuit would have even contemplated.
Rather, the Sixth Circuit’s novel approach to jurisdiction should encourage this Court to correct a Circuit
that is far out of step with this Court’s law.
II.
This case presents an ideal vehicle to address an important jurisdictional question that has repeatedly evaded review.
This case provides one of the first direct opportunities for this Court to address a malignant, and recurrent, aspect of the Sixth Circuit’s jurisdictional precedents. And, given the extreme posture of this case, it
does not implicate harder questions about federal
courts’ authority to enforce the terms of its orders.
A.
This case cleanly presents an important question about federal habeas jurisdiction that has thus far
evaded this Court’s review.
27
In many of the cases that the Sixth Circuit has announced and applied its unlawfully broad jurisdictional rules, it ultimately denied federal habeas relief.
So this Court has routinely been denied the opportunity to take the question head on—or rectify the
problem. Take a few recent examples. In Johnson,
the Warden could not seek review of the Sixth Circuit’s holding that a federal court’s habeas jurisdiction
is not “limited to the judgment [that a] §2254 petition
attacked,” because the Circuit also denied substantive
habeas relief. 170 F.4th at 531, 539. The Sixth Circuit
did the same in Allah-U-Akbar. It reaffirmed D’Ambrosio’s and Mason’s broad theories of jurisdiction
even though it ultimately denied the habeas petitioner
the relief he sought. See Allah-U-Akbar, 154 F.4th at
489–494, 486. Because this Court reviews judgments,
not opinions, Chevron, U.S.A., Inc. v. NRDC, Inc., 467
U.S. 837, 842 (1984), the result has been to keep
States under the Sixth Circuit’s supervisory thumb.
And now, a federal court threatens to supervise a potential third trial based on purported errors in the
first, even after the State obtained a second conviction
from a second trial. Above at 12. This Court should
take this opportunity to correct the mischief that
abounds in the Sixth Circuit.
B.
The extreme posture avoids harder
questions about the limits on federal
courts’ jurisdiction to enforce their
own orders.
The important jurisdictional question that this
case presents is not complicated by questions at the
margins. This case asks whether a new state-court
judgment deprives a federal court, whose jurisdiction
arose from errors in a prior vacated judgment, of jurisdiction to exercise oversight predicated on the now-
28
superseded judgment. Because a new judgment provides a bright-line jurisdictional boundary, this case
is not complicated by questions about federal courts’
power to enforce their own orders, for example after a
writ is issued but no trial has begun.
As a threshold matter, it is doubtful that the Sixth
Circuit even had the power to issue the order that it
did in this case. A conditional writ of habeas corpus
“serves only to delay the release in order to provide
the State an opportunity to correct the constitutional
violation.” Dotson, 544 U.S. at 86 (Scalia, J., concurring) (quotation omitted). The Sixth Circuit’s original
writ (which was based on purported errors in Smith’s
first judgment of conviction) did more than that. By
purporting to limit the evidence that could be introduced should the State seek to retry Smith, it attempted to dictate and control the state-court proceedings in a way that Pitchess would otherwise prohibit.
As the district court observed, the Sixth Circuit’s conditional writ “invite[d] the federal judiciary” to supervise the State’s retrial process. Hearing Tr., R.51,
PageID#3884. That is exactly what Pitchess says that
federal habeas courts may not do. Pitchess, 421 U.S.
at 490. At the very least, the implications of orders
like the one the Sixth Circuit issued here show why
such orders are “atypical.” See Jennings, 574 U.S. at
277.
But this case does not require the Court to decide
whether such orders are merely “atypical” or whether
they are, in fact, impermissible. Even assuming the
Sixth Circuit did have the power to limit future statecourt proceedings in the way that it did, and even assuming it could generally enforce its conditional writ,
it missed its opportunity to do so here: before the prior
29
offending judgment was replaced by a new judgment
from a new trial.
Perhaps proving the point, the Sixth Circuit did
not need to wait to act in this case until after Smith
had been retried and resentenced; it could have acted
sooner. The Sixth Circuit issued the judgment at issue here after Smith had been retried, reconvicted,
and resentenced. Smith, however, asked the Sixth
Circuit to intervene before any of that happened. He
turned to the federal courts for help on the eve of trial,
after it became apparent that the state court intended
to permit the State to introduce evidence implicating
Smith in the attack on Tolliver. He asked the Sixth
Circuit to “clarify” its conditional writ and to hold that
the State could not introduce any evidence of Tolliver’s
interactions with Smith—not just her tainted identification. See Smith v. Davis, 6th Cir. No.23-3604, Mtn.
to Clarify, Doc.28. The Sixth Circuit denied Smith’s
motion the next day. Pet.App.96a.
The Sixth Circuit’s decision to wait until after
Smith was retried and resentenced simplifies this
case. Because the Sixth Circuit chose not to avail itself of the opportunity to act before Smith was retried
and resentenced, this case does not raise concerns
about the power of federal courts to enforce their own
orders. The only question at issue in this case is one
of timing. It asks: when must federal courts exercise
that power? Whatever the answer in other circumstances, the answer here is clear: a federal courts’ residual power to enforce the conditions of its order
based on a first judgment evaporates with a second.
The Court also does not need to be concerned that
a decision in the Warden’s favor will allow a State to
“hold a prisoner under a new judgment infected by the
30
same conditional violation that justified the order’s
entry in the first place.” See Jennings, 574 U.S. at 288
(Thomas, J., dissenting). State courts are unlikely to
want to repeat a constitutional error or violate a federal court’s order.
The state court here certainly did not. It made
every effort to comply with the Sixth Circuit’s order
and tried to avoid repeating the constitutional mistake that provided the basis for the Sixth Circuit’s
conditional writ. After reviewing the conditional writ,
the state court determined that it could “only logically
pertain to [Tolliver’s] identification of [Smith] as her
attacker, not as an individual she had interaction and
contact with.” See Smith v. Davis, 6th Cir. No.233604, Mtn. to Clarify, Doc.28 at pp.18–19. Any fault
in this case lies not with the state court, but with the
Sixth Circuit’s order, which, the state court noted, was
“not specific” or “complete” in terms of what evidence
it would allow the State to introduce. See Smith v.
Davis, 6th Cir. No.23-3604, Supplement to Mtn.,
Doc.29 at pp.45–46.
The mere prospect that some other state court
might repeat a constitutional error in some other proceeding does not mean that federal courts have license
to exceed the limits of their jurisdiction. Even if a
state court repeats a constitutional error, “[i]t will not
take a court long to dispose of such claims where the
court has already analyzed the legal issues.” See Magwood, 561 U.S. at 340 n.15.
There is one last reason why the Court need not be
concerned about what a decision in this case might say
about the power of federal courts to enforce their own
orders and that is because no violation of the Sixth
Circuit’s order occurred in this case. As Judge Thapar
31
noted, the State “did exactly” what the Sixth Circuit’s
conditional writ required. Pet.App.57a. Any contrary
conclusion was wrong, see Pet.App.57a–66a, and any
suggestion that the Warden waived or forfeited such
an argument was an abuse of discretion. As the district court acknowledged, the Warden “spoke to the
merits of the retrial,” Transcript, R.51, PageID#3875,
and the Warden maintained that the prosecutor “did
everything they could to make sure that they were
complying with the Sixth Circuit’s writ,” id. at
PageID#3877. A “waiver is the intentional relinquishment or abandonment of a known right,” and a forfeiture “is the failure to make the timely assertion of a
right.” Hamer v. Neighborhood Hous. Servs., 583 U.S.
17, 20 n.1 (2017) (quotation omitted); see also Hunter
v. United States, 146 S.Ct.1702, 1710 (2026) (“Under
ordinary litigation principles, a waiver of a right requires some affirmative signal of ‘abandonment.’”).
The Warden in this case did neither.
CONCLUSION
The Court should grant the petition for certiorari.
32
Respectfully submitted,
D. ANDREW WILSON
Ohio Attorney General
MATHURA J. SRIDHARAN*
Ohio Solicitor General
*Counsel of Record
SAMUEL C. PETERSON
Deputy Solicitor General
30 E. Broad St., 17th Floor
Columbus, Ohio 43215
614.466.8980
Mathura.Sridharan@OhioAGO.gov
Counsel for Petitioner
Cynthia Davis, Warden
JULY 2026
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.