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.

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