Petitioners Brief — Bell v. Thompson

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No. 04-514 | 7033

3n The

Supreme Court of the Anited States

RICKY BELL, WARDEN,

Petitioner,

GREGORY THOMPSON,

Respondent.

—@

On Writ Of Certiorari To The

United States Court Of Appeals

For The Sixth Circuit

BRIEF OF PETITIONER

PAUL G. SUMMERS

Attorney General

State of Tennessee

MICHAEL E. MOORE

Solicitor General

GORDON W. SMITH

Associate Solicitor General

JENNIFER L. SMITH

Associate Deputy Attorney General

Counsel of Record

ANGELE M. GREGORY

Assistant Attorney General

P.O. Box 20207

Nashville, Tennessee 37202

(615) 741-3487

Attorneys for Petitioner

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

CAPITAL CASE

QUESTION PRESENTED

ewetion by wi

wi notice to the

parties or any finding that the court’s action was neces-

, ;

the denial of habeas corpus

months after Fed. R. App. P. 41(d)(2)(D) made

of justice, particularly where

state judicial proceedings to enforce the inmate’s

opinion

of the mandate mandatory,

Did the Sixth Circuit abuse i

sentence had progressed in reliance upon the finality of

the judgment in the federal habeas proceedings?

sary to prevent a

TABLE OF CONTENTS

Page

QUESTION PRESENTED .................cssesscccssssseeeeeneees i

GED HEP OD scccccesccccscocccecseseccocsccsscccsescounennees 1

STE cccasccanesesensnecncsenisesionesseccnnesseccemnansnenn 1

ED STII ccccccvcnnscccncnscososnssesssesioconsconceennetnent 1

STATEMENT OF THE CASE ..............::sssseeceeeneeeeeees 2

A. State Trial Proceedings ................cc0sccccccesssesee 3

B. State Post-Conviction Proceedings................. 6

C. Federal Habeas Corpus Proceedings .............. 7

D. Events Subsequent to Initial Habeas Dispo-

SI nih iiciieibaaidigieidiinianbineenrbenseneserenesscconinennete 12

SUMMARY OF THE ARGUMENT..................c0cccceeees 15

ITE diictpcnintcendinnnmetenininsintimenmeimemneseneccunanenes 18

I. THE SIXTH CIRCUITS DECISION TO

WITHDRAW ITS FINAL JUDGMENT AF-

FIRMING THE DISMISSAL OF THOMP-

SON’S FEDERAL HABEAS PETITION IS

AN EXTRAORDINARY ACT EQUIVALENT

TO A RECALL OF THE MANDATE UNDER

CALDERON V. THOMPSON ............00000000000 18

A. Because the Sixth Circuit had no discre-

tion to withhold issuance of the mandate

beyond the filing of this Court’s order

denying certiorari, the court’s subse-

quent withdrawal of its judgment deny-

ing federal habeas relief was an

extraordinary act equivalent to a recall

gL een 20

TABLE OF AUTHORITIES - Continued

Page

B. A federal habeas judgment becomes “fi-

nal” when the court of appeals fully re-

solves the appeal and is subject to no

further review or correction by this

Court, even if the mandate of the court

of appeals has not yet issued ................... 25

Il. THE SIXTH CIRCUITS DECISION TO

WITHDRAW ITS FINAL JUDGMENT AND

PERMIT THOMPSON TO RELITIGATE

THE MERITS OF HIS UNDERLYING HA-

BEAS CORPUS PETITION CONSTITUTES

AN ABUSE OF DISCRETION...................00004 34

Se ccccacensncecenccvensescenecenscscenessssesnsesssessaseese 45

TABLE OF AUTHORITIES

Page

CASES

Adamson v. Lewis, 955 F.2d 614 (9th Cir.), cert.

denied, 505 U.S. 1213 (1992).................cccesserssesesseesseees 24

Bank of Nova Scotia v. United States, 487 U.S. 250

CEE nn cecoccnennsiemmmeamiES 23

Beardslee v. Brown, 393 F.3d 899 (9th Cir. 2004),

cert. denied, 125 S. Ct. 982 (2005)............cccccccceeeeeeeeeeeees 24

Bousley v. United States, 523 U.S. 614 (1998)...............0: 41

Bryant v. Ford Motor Co., 886 F.2d 1526 (9th Cir.

1989), cert. denied, 493 U.S. 1076 (1990)...............c000+ 24

Buchanan v. Angelone, 522 U.S. 269 (1998) .............c00000 38

Burget v. Robinson, 123 F. 262 (1st Cir. 1903).................. 26

Calderon v. Thompson, 523 U.S. 538 (1998)............. passim

Carlisle v. United States, 517 U.S. 416 (1996).................. 23

Caspari v. Bohlen, 510 U.S. 383 (1994) ...........cc.0c0000 29, 32

Clarke v. United States, 915 F.2d 699 (D.C. Cir.

I 21

Clay v. United States, 537 U.S. 522 (2003)..... 30, 31, 32, 33

Cole v. Violette, 319 U.S. 581 (1943).............ccccccccsseeereeeeees 28

Deering Milliken, Inc. v. FTC, 647 F.2d 1124 (D.C.

Cir.), cert. denied, 439 U.S. 958 (1978)...............ccceeeeees 26

Degen v. United States, 517 U.S. 820 (1996)................00+++ 23

Department of Banking v. Pink, 317 U.S. 264 (1942)....... 27

Engle v. Isaac, 456 U.S. 107 (1986)..................ceccceseeeeeeneees 19

Finberg v. Sullivan, 658 F.2d 93 (3d Cir. 1981)..... 21, 25 26

TABLE OF AUTHORITIES -— Continued

Page

First Gib. Bank v. Morales, 42 F.3d 895 (5th Cir.

ee ENE ee ee 26

Ford v. Wainwright, 477 U.S. 399 (1986).................... 12, 13

Foucha v. Louisiana, 504 U.S. 71 (1992) ...........cccccccceeeeee 41

Gendron v. United States, 154 F.3d 672 (7th Cir.

1998), cert. denied, 526 U.S. 1113 (1999) .................0000. 30

Graham v. State, 547 S.W.2d 531 (Tenn. 1977)................. 42

Griffith v. Kentucky, 479 U.S. 314 (1987) ...............cccccc000 29

Humphreys v. DEA, 105 F.3d 112 (3d Cir. 1996) .............. 25

Jefferson v. City of Tarrant, 522 U.S. 75 (1997) ............... 27

Johnson v. United States, 246 F.3d 655 (6th Cir.

ee Oe NE a eR Se ede 30

Linkletter v. Walker, 381 U.S. 618 (1965) .............cccccccceee 29

Market St. Railway Co. v. Railroad Commission of

RE ee 26, 27, 33

O’Neal v. McAninch, 513 U.S. 432 (1995) 000.0... ..cccccccceeees 31

Ostrer v. United States, 584 F.2d 594 (2d Cir. 1978) ........ 21

. Pennsylvania v. Finley, 481 U.S. 551 (1987) .................... 32

Perales v. INS, 575 F.2d 1293 (9th Cir. 1978)................... 21

Radio Station WOW, Inc. v. Johnson, 326 U.S. 120

TITIT neennnneermsnitacnnienninianitiiiieienietaiieaimaniiaiiiaieliail 26, 27

Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62

ST ccsreerteicneitenaiecineaianciiiniiiieiiiitaaenialeetaidtaiiaii ia eine aati 27

Sawyer v. Whitley, 505 U.S. 333 (1992) .................... passim

Schlup v. Delo, 513 U.S. 324 (19965)........... 17, 34, 39, 41, 42

TABLE OF AUTHORITIES — Continued

Page

State v. Thompson, 768 S.W.2d 239 (Tenn. 1989),

cert. denied, 497 U.S. 1031 (1990)................cccceeeeee passim

Strickland v. Washington, 466 U.S. 668 (1984)............ 9, 10

Teague v. Lane, 489 U.S. 288 (1989) ..............ccccceeeeeeee 28, 32

Thompson v. Bell, 315 F.3d 566 (6th Cir. 2003).................. i)

Thompson v. Bell, 540 U.S. 1051 (2003) .................000000000 20

Thompson v. Bell, 540 U.S. 1158 (2004) .000....0...eccceeeeeees 11

Thompson v. State, 134 S.W.3d 168 (Tenn. 2004)............. 12

Thompson v. State, 958 S.W.2d 156 (Tenn. Crim.

FR, Fie resrcsmamunnstepnsnnemepncmimaitininizets 2, 7, 10

Thompson v. Tennessee, 497 U.S. 1031 (1990)................... 6

Tower v. Fletcher, 114 U.S. 127 (1885)..............00..-ccceeeeeees 28

Tuilaepa v. California, 512 U.S. 967 (1994) .....cccccsvseee00e 38

United States v. Craigo, 993 F.2d 1086 (4th Cir.

rele ieesetitsinrensiesithtesnpinettieniiniiennteantisisibaainanesieainaiiiadnenmmimiataeniniiis 31

United States v. Johnson, 457 U.S. 537 (1982)................. 29

United States v. Reyes, 49 F.3d 63 (2d Cir. 1995).............. 31

United States v. Torres, 211 F.3d 836 (4th Cir. 2000) ....... 30

Van Tran v. State, 6 S.W.3d 257 (Tenn. 1999)................... 12

Williams v. United States, 401 U.S. 667 (1971)................ 32

Wilson v. Ozmint, 357 F.3d 461 (4th Cir. 2004) ................ 26

Wolfel v. Bates, 749 F.2d 7 (6th Cir. 1984) 2000...0...cccceeeees 21

Vii

TABLE OF AUTHORITIES -— Continued

Page

STATUTES

TE EEE CMA, SO A aL ND 31

TUR care ee 30

iinet inincmniinialatieeie sti aan 1

|” SRE See eee aa 27, 28

ST RENT a eae RAO 28

EEE Seam nee a RCA 22

I a ociciinciiestiiiienindtssiintinietemelenieads 29

| Ee nana Pe 29

EERE ann Rete oS ASR fevineorn 9

I a iicitnsernicncienannsiatiigialaaiiesaiibiaaiias .

I cc sncciccnsntesneaiseennintaniiciadensiaibaiicians 14

iil asian cetaceans ated 30

RES Eere enero nara ne Fae 29

I aiiiisictniiitichininrsanitctctineniccnitaaiciel 30

Tenn. Code Ann. § 39-2-202(b) (1982) ...........csccececeseseeneees 37

Tenn. Code Ann. § 39-2-203(g) (1982) ...........:.:csecseseseeeeees 37

Tenn. Code Ann. § 39-2-203(i)5) (1982)...........ccecee0e0ee 6, 37

Tenn. Code Ann. § 39-2-20/0(ii)00) (1982).............cc:cececseceeees 37

Tenn. Code Ann. § 39-2+208(iiji'7))\(1982).............c.csececereeees 37

Tenn. Code Ann. § 39-2200} \(8) (1982)...............00000- 35, 42

Tenn. Code Ann. § 99-2-302 (1982)............. ae

Tenn. Code Ann. $ 39-2-501 (1962) ..............cccssssrereereresers 38

TABLE OF AUTHORITIES - Continued

Page

RULES

ee Bt Ge Bi SI cccecsscetevenenineneenneennecntsesineien 22, 28

EE | a eneeneeae ee eee 28

FY Cees 21, 22, 24, 25, 30

Fed. R. App. P. 41(d)(2)(D)........:::ccccceseereeeeeerenneeeesenes passim

Ei Gy Be Sad creccnnccnnsecnsencsscsnensmsnsnccsnaccsnsseinepienee 30, 31

eee, Gea, GO BR Ba csececensecncnscenesennsinsncinnsneninsasisetonn 32

OTHER AUTHORITIES

16A C. Wright, A. Miller & E. Cooper, Federal

Practice and Procedure § 3987.1 (3d ed. 1999)....... 24, 34

R. Stern, E. Gressman, S. Shapiro & K. Geller,

Supreme Court Practice (8th ed. 2002) ...2......cccccccceeeeees 27

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1) that is

the subject of this case is published at 373 F.3d 688. The

earlier opinion of the court of appeals affirming the district

court’s denial of habeas corpus relief (Pet. App. 117) is

reported at 315 F.3d 566. The memorandum opinion of the

district court dismissing respondent’s petition for writ of

habeas corpus is unreported. (Pet. App. 202)

JURISDICTION

The judgment and opinion of the court of appeals were

entered on June 23, 2004. (Pet. App. 1) The petition for a

writ of certiorari was filed on October 14, 2004,’ and

granted on January 7, 2005. The jurisdiction of this Court

rests on 28 U.S.C. § 1254(1).

RULE INVOLVED

Rule 41(d)(2), Federal Rules of Appellate Procedure,

provides in pertinent part:

(A) A party may move to stay the mandate

pending the filing of a petition for a writ of cer-

tiorari in the Supreme Court. The motion must

be served on all parties and must show that the

certiorari petition would present a substantial

question and that there is good cause for a stay.

’ On September 17, 2004, Justice Stevens granted petitioner’s

application to extend the time to file a petition for writ of certiorari

from September 21, 2004, until October 14, 2004. Bell v. Thompson, No

04A211.

* * *

(D) The court of appeals must issue the man-

date immediately when a copy of a Supreme

Court order denying the petition for writ of cer-

tiorari is filed.

STATEMENT OF THE CASE

In 1985, Gregory Thompson was convicted by a jury in

Coffee County, Tennessee, for the first-degree murder of

Brenda Blanton Lane on New Year’s Day of that same

year. Following a separate sentencing hearing, the jury

sentenced Thompson to death for the murder. Thompson’s

conviction and sentence were affirmed on direct appeal,

State v. Thompson, 768 S.W.2d 239 (Tenn. 1989), cert.

denied, 497 U.S. 1031 (1990), and later upheld in state

post-conviction proceedings. Thompson v. State, 958

S.W.2d 156 (Tenn. Crim. App. 1997) (app. denied Oct. 20,

1997). Thompson then sought a writ of habeas corpus in

the federal district court, which summarily denied relief,

and the Sixth Circuit affirmed that decision. (Pet. App.

117) On December 1, 2003, this Court denied Thompson’s

petition for a writ of certiorari (J.A. 91) and denied rehear-

ing on January 20, 2004. (J.A. 92)

On February 25, 2004, the Tennessee Supreme Court

set a date for Thompson’s execution, thus setting in motion

state judicial proceedings to carry out that execution in

accordance with Tennessee state law. (Pet. App. 349-51,

383) But while state-court proceedings were ongoing — and

unbeknownst to the parties in this action or the Tennessee

Supreme Court — the Sixth Circuit was conducting a

second sua sponte review of Thompson’s federal habeas

appeal. (Pet. App. 2) And, on June 23, 2004, 18 months

after its initial decision denying habeas corpus relief and

205 days after this Court denied certiorari, the Sixth

Circuit, relying on its “inherent power over a case until

[its] mandate issues,” withdrew its previous judgment and

opinion and remanded the case to the district court for an

evidentiary hearing on Thompson’s original habeas peti-

tion. (Pet. App. 6)

A. State Trial Proceedings

As summarized in the opinion of the Tennessee

Supreme Court on direct appeal, the proof at Thompson’s

trial showed that, on December 29, 1984, Thompson and

Joanne McNamara, a juvenile female, traveled by bus

from Marietta, Georgia, to Shelbyville, in Bedford County,

Tennessee. They presented themselves as a married couple

at the home of Willa Mae Odum, an acquaintance of

McNamara’s family, who allowed them to stay there. When

Ms. Odum learned the two were not married, she asked

Thompson to leave, but he remained through the night of

December 31, waiting for a relative to wire him some

money. The following morning, January 1, 1985, Odum

again insisted that Thompson leave, and she called the

authorities to report McNamara as a runaway. This call

apparently prompted the couple to depart Odum’s home.

Having little money and no transportation, the couple

spent the afternoon at a nearby Wal-Mart store.

That same afternoon, January 1, after making several

purchases at the Wal-Mart, Brenda Lane did not arrive

home when expected. Shortly after midnight, Lane’s

automobile was reported on fire near an apartment build-

ing in Marietta, Georgia. Thompson and McNamara were

arrested on the night of January 2 in connection with the

investigation of Lane’s disappearance. A traffic ticket in

Thompson’s jacket showed that he had been cited for

speeding while driving Brenda Lane’s vehicle on Interstate

24 in Tennessee near the Georgia line. A Wal-Mart receipt

and several items recovered from the vehicle indicated a

purchase at the Shelbyville Wal-Mart at 5:51 p.m. on

January 1. A button found in Lane’s car matched those on

Thompson’s clothing.

A few hours after being taken into custody, Thompson

admitted that he had abducted a woman at knifepoint

from the Wal-Mart in Shelbyville and forced her to drive

him and his companion in her car to a remote location

outside Manchester, Tennessee. There, according to

Thompson, he stabbed her, drove the car over her body,

and left. Thompson drew a map illustrating the route from

the town to the site of the-stabbing and spoke with au-

thorities by telephone to clarify certain aspects of his

directions.

On January 3, 1985, following Thompson’s directions,

a search team found Brenda Lane’s body at the location

described in Thompson’s statement. According to the

pathologist, she had died from multiple stab wounds to the

back and would have remained conscious five to ten

minutes before bleeding to death. Apart from the stab

wounds, there was no evidence of other injury or trauma

to Lane’s body. Thompson presented no proof in the guilt

phase of trial, and the jury convicted him of the first-

degree murder of Brenda Lane.

During the sentencing phase, Thompson called a

number of witnesses, including former high school teach-

ers, acquaintances, his grandparents, two siblings, and a

cousin, who presented a picture of him as non-violent,

cooperative and responsible. Witnesses described in detail

his childhood and family circumstances in Georgia until he

left in 1979 to join the Navy. The Tennessee Supreme

Court noted in its opinion on direct appeal that, “while

[Thompson’s] family was poor, it was also good and loving.”

State v. Thompson, 768 S.W.2d 239, 244 (Tenn. 1989).

Arlene Cajulao, Thempson’s girlfriend while he was

stationed with the Navy in Hawaii, testified that she knew

Thompson from December 1980 until June 1984. She

described their relationship as good, one that she was

“very proud to have experienced,” and stated that Thomp-

son was caring and sensitive. She related that Thompson

had suffered a head injury when three of his fellow service

members attacked him with a crowbar and that he became

paranoid and unreasonably concerned about his and her

personal safety thereafter. Cajulao was aware that

Thompson was discharged from the Navy as a result of

being court-martialed for shoving a petty officer and either

dislocating the officer’s shoulder or breaking his collar

bone. She was also aware of other violent incidents involv-

ing Thompson and other Navy personnel. After leaving the

Navy, Thompson returned to Georgia for a short time in

1983 and then in 1984 to look for work. Thompson’s sister,

Nora Jean Walton, and his brother-in-law testified about

Thompson’s activities in Georgia after he returned from

the Navy, including his relationship with co-defendant

Joanne McNamara.

Dr. George Copple, a clinical psychologist retained by

the defense who interviewed and tested Thompson before

trial, testified about Thompson’s personality and aptitude

for employment in prison. He opined that Thompson had

an unusually strong need to nurture other people, which

may have led, in part, to the commission of the offense in

this case. Dr. Copple further testified that Thompson

exhibited strong remorse for the killing and did not have

an adult anti-social personality disorder.

To rebut Dr. Copple’s testimony, the State presented

the deposition of Dr. Robert Glenn Watson, a clinical

psychologist who participated in a staff evaluation of

Thompson at Middle Tennessee Mental Health Institute

(MTMHI) shortly after his arrest. Dr. Watson testified that

Thompson showed little remorse and exhibited adult anti-

social behavior. He further stated that, during the pre-trial

evaluation period, Thompson appeared to fake schizophre-

nia by claiming to hear voices and also falsely claimed that

he was unable to read. Thompson, 768 S.W.2d at 244.

The jury sentenced Thompson to death after finding

three aggravating circumstances beyond a reasonable

doubt: (1) that the murder was especially heinous, atro-

cious or cruel in that it involved torture or depravity of

mind; (2) that the defendant committed the murder for the

purpose of avoiding or preventing his lawful arrest and

prosecution; and (3) that the murder was committed while

the defendant was engaged in committing robbery or

kicdaapping. Tenn. Code Ann. § 39-2-203(i)(5), (6), (7)

(1982) (repealed). The Tennessee Supreme Court affirmed

the judgment, State v. Thompson, 768 S.W.2d 239 (Tenn.

1989), and this Court denied certiorari. Thompson uv.

Tennessee, 497 U.S. 1031 (1990).

B. State Post-Conviction Proceedings

On post-conviction, Thompson contended, inter alia,

that his trial counsel was ineffective for failing to investi-

gate head injuries he had suffered prior to the murder. He

claimed that evidence of the head injuries could have been

beneficial to his case in the penalty phase of his trial. The

post-conviction court rejected Thompson’s claims following

an evidentiary hearing, and the Tennessee Court of

Criminal Appeals affirmed the denial of the petition for

post-conviction relief, finding that counsel’s decision to

“emphasize [Thompson’s] positive qualities [at sentencing]

rather than to suggest brain damage, while unsuccessful,

was based upon adequate investigation.” Thompson v.

State, 958 S.W.2d 156, 165 (Tenn. Crim. App. 1997). The

court further found that Thompson had demonstrated no

prejudice from counsel’s alleged deficiencies, because he

“failed to established that the head injuries had any effect

upon his mental stability at the time of the murder” and

“failed to demonstrate that any type of psychological

impairment in general may have existed which would

have been mitigating evidence.” Jd. Thompson subse-

quently sought permission to appeal to the Tennessee

Supreme Court pursuant to Rule 11, Tennessee Rules of

Appellate Procedure, but that court denied his application

on October 20, 1997.

C. Federal Habeas Corpus Proceedings

On June 12, 1998, Thompson filed a petition for writ

of habeas corpus in the United States District Court for

the Eastern District of Tennessee. On February 17, 2000,

the district court entered an order summarily denying

Thompson’s claims for relief and dismissing his petition,

concluding that Thompson had failed to demonstrate that

the state court’s adjudication of his ineffective assistance

of counsel claim involved an unreasonable application of

established federal law or an unreasonable determination

of the facts in light of the evidence before the state court.

28 U.S.C. § 2254(d)(1). (Pet. App. 202, 271) The district

court specifically found that Thompson had presented no

competent evidence in response to the State’s motion for

summary judgment, by way of affidavit, deposition or

otherwise, demonstrating that he was suffering from a

significant mental disease at the time of the offense or at

trial that should have been presented to the jury during

the penalty phase of his trial as mitigation evidence. (Pet.

App. 270) The court further noted that Thompson “had

two different psychological evaluations [prior to trial] and

both resulted in findings of competency at the time of the

crime and at the time of trial.” In addition, the state-court

record supported the state post-conviction court’s determi-

nation that trial counsel reasonably investigated Thomp-

son’s background and mental health history. (Pet. App.

270-71)

Thompson appealed the district court’s decision to the

Sixth Circuit on April 21, 2000. (J.A. 2) On March 1, 2001,

while Thompson’s appeal was pending in the Sixth Circuit,

but before oral argument, Thompson filed a motion in the

district court under Rule 60(b), Federal Rules of Civil Proce-

dure, requesting the district court to “supplement” the record

with additional evidence that had been developed through

discovery in the federal habeas proceeding but had never

been presented to the district court and, in light of that

evidence, to “revisit [the court’s] previous summary denial” of

Thompson’s habeas petition. (Pet. App. 337, 340-41)

Contemporaneous with the filing of his Rule 60(b)

motion in the district court, Thompson filed a motion in the

Sixth Circuit seeking to hold his appeal in abeyance pending

the district court’s disposition of the Rule 60(b) motion. (Pet.

App. 333) The district court denied Thompson’s Rule 60(b)

motion on March 7, 2001 (Pet. App. 343), and the Sixth Circuit

—— or

denied Thompson’s motion to hold his appeal in abeyance

on March 21, 2001. (Pet. App. 345)

On January 9, 2003, the Sixth Circuit affirmed the

district court’s denial of habeas relief. Thompson v. Bell,

315 F.3d 566 (6th Cir. 2003). (Pet. App. 117) As to Thomp-

son’s ineffective assistance claim, the court observed that,

because the Tennessee courts analyzed the claim under

the appropriate standard established by this Court in

Strickland v. Washington, 466 U.S. 668 (1984), the ques-

tion to be decided was whether the state court unreasona-

bly applied Strickland to the facts of Thompson’s case

under 28 U.S.C. § 2254(d). (App. 154) The court of appeals

found that the state-court record reflected that counsel

adequately investigated Thompson’s mental health:

[T]he [state-court] record reflects that trial coun-

sel investigated Thompson’s mental health and

that he received expert assistance to attempt to

establish valid mitigating factors. The record

shows that trial counsel were aware from the

outset of Thompson’s prior head injuries and in-

appropriate behavior, and that they investigated

possible mental illness or defect. They requested

a competency evaluation. Thompson was evalu-

ated for thirty days by a team of experts. The

MTMHI team found no mental illness, mental

defect, or insanity. Counsel also had [Dr. George]

Copple, a clinical psychologist and former profes-

sor of psychology at Vanderbilt, evaluate Thomp-

son. Copple found no evidence of mental illness.

* * 7.

[N]ot one of Thompson’s post-trial experts have

opined that Thompson suffered from organicity

or mental illness at the time of the crime or trial.

[Dr. Gillian] Blair, Thompson's state post-

conviction expert, also a clinical psychologist

with ties to Vanderbilt, declined to give an opin-

ion, stating simply that more information was

needed. Significantly, she did not fault the test-

ing procedures used by MTMHI or Copple, but

merely stated that they were not extensive

enough. Indeed, she performed many of the same

tests. Similarly, neither Crown nor Sultan

[Thompson’s federal habeas experts] ever ex-

pressed an opinion that Thompson was mentally

ill at the time of the crime.

As the Tennessee Court of Criminal Appeals

held, there is no prejudice because, “(the peti-

tioner has failed to establish that the head inju-

ries had any effect upon [Thompson’s] mental

stability at the time of the murder. Further, he

has failed to establish that any type of psycho-

logical impairment in general may have existed

which would have been mitigating evidence.”

Thompson, 958 S.W.2d at 165.

Indeed, although the state court ruled on the

prejudice prong of Strickland, its ruling is

equally sustainable under the cause prong of

Strickland because trial counsel’s decision to em-

ploy a clinical psychologist at trial was not objec-

tively unreasonable. Further, as the Tennessee

Court of Criminal Appeals concluded, “counsel

cannot be faulted for discarding a strategy that

could not be supported by a medical opinion.” Jd.

Nor can there be prejudice because the jury was

not deprived of any actual evidence of organicity

or mental disease or defect at the time of the

crime. Thus, the state court’s decision holding

that counsel were not ineffective under the Sixth

Amendment is not an unreasonable application

of Strickland.

(Pet. App. 158-59, 163-64)

Thompson filed a timely Petition for Rehearing and

Suggestion for Rehearing En Banc in the Sixth Circuit.

The panel reviewed the petition and, after finding that the

issues raised were fully considered upon the original

submission and decision of the case, denied rehearing on

March 10, 2003. (Pet. App. 346) On March 24, 2003, the

court of appeals stayed the issuance of its mandate pend-

ing the filing and disposition of a petition for writ of

certiorari. (Pet. App. 347)

On August 6, 2003, Thompson filed a petition for writ

of certiorari in this Court. The Court denied Thompson’s

petition on December 1, 2003. Thompson v. Bell, 540 U.S.

1051 (2003). (J.A. 91) The following day, December 2, 2003,

Thompson filed a motion in the court of appeals to extend

the stay of the mandate pending a petition for rehearing in

this Court from the denial of his certiorari petition. (J.A. 8)

This Court’s order denying certiorari was filed with the

clerk of the court of appeals on December 8, 2003. (J.A. 8)

The Sixth Circuit granted Thompson’s motion to extend

the stay of the mandate on December 12, 2003, pending

the filing of a petition for rehearing and “thereafter until

the Supreme Court disposes of the case.” (Pet. App. 348)

Thompson filed a petition for rehearing in this Court on

December 22, 2003. On January 20, 2004, the Court

denied Thompson’s petition for rehearing. Thompson v.

Bell, 540 U.S. 1158 (2004). (J.A. 92) A copy of the Court’s

order denying rehearing was filed with the clerk of the

court of appeals on January 23, 2004. (J.A. 8)

D. Events Subsequent to Initial Habeas Dis-

position

On February 25, 2004, the Tennessee Supreme Court

ordered that Thompson’s death sentence be carried out on

August 19, 2004. In addition, finding that Thompson had

sufficiently raised the issue of his present competency to

be executed through his Notice of Incompetency to be

Executed and supporting exhibits, the court remanded the

case to the trial court where Thompson was originally

convicted and sentenced for an “expeditious determina-

tion” of Thompson’s competence for execution under the

procedures established in Van Tran v. State, 6 S.W.3d 257

(Tenn. 1999).* (App. 349-51)

On March 1, 2004, Thompson filed a “Petition Provid-

ing Notice of Incompetency to Be Executed, Requesting a

Hearing on Competency to Be Executed, and Requesting

an Order Finding Gregory Thompson Incompetent to Be

Executed and Issuance of a Reprieve” in the state trial

court. Accompanying his petition were, inter alia, three

mental health experts’ reports, all dated after this Court’s

denial of certiorari, opining as to Thompson’s present

competence. On March 8, 2004, the trial court denied

Thompson’s competency petition without a hearing, and,

following expedited review, the Tennessee Supreme Court

affirmed the judgment of the trial court in an opinion filed

on May 12, 2004. Thompson v. State, 134 S.W.3d 168

(Tenn. 2004). (Pet. App. 352)

* In Van Tran, the Tennessee Supreme Court adopted the standard

of competency for execution in Tennessee and established state-court

procedures to enable state prisoners to assert last-minute claims of

incompetence under Ford uv. Wainwright, 477 U.S. 399 (1986).

On June 14, 2004, Thompson filed a petition for writ

of habeas corpus in the United States District Court for

the Eastern District of Tennessee, asserting a claim of

incompetency for execution under Ford v. Wainwright, 477

U.S. 399 (1986). On June 21, 2004, the district court

granted a “brief stay” of Thompson’s execution, with the

stay to expire automatically upon issuance of an order of

the court denying habeas relief but to remain in place

upon issuance of an order granting the writ. The district

court further ordered that the Warden file a response to

Thompson’s Ford petition within ten days of the date of

the order.

On June 23, 2004, nearly seven months after this

Court denied certiorari from the Sixth Circuit’s January

2003 decision, that court issued an opinion vacating the

district court’s February 2000 order dismissing Thomp-

son’s initial habeas petition, supplementing the record on

appeal with a deposition that had been attached to

Thompson’s March 2001 motion to hold his appeal in

abeyance but never presented in the habeas proceedings in

the district court, and remanding the case to the district

court for a “full evidentiary hearing” on Thompson's initial

habeas petition. (Pet. App. 5-6) The court reasoned that a

discovery deposition of a mental health expert, taken by

counsel during the federal habeas proceedings but never

submitted to the district court for consideration in connec-

tion with the warden’s motion for summary judgment, was

“extremely probative” in assessing Thompson's mental

state at the time of the crime and, thus, relevant to his

claim of ineffective assistance of counsel at sentencing.

(Pet. App. 2) While acknowledging that the deposition was

outside the record of the district court, the court of appeals

nevertheless considered it in rendering its opinion pursuant

to the court's “equitable power to supplement the record on

appeal,” finding that the deposition was “apparently

negligently omitted” by Thompson's habeas counsel.’

Because the evidence here was apparently negli-

gently omitted, because the evidence is so proba-

tive of Thompson’s mental state at the time of

the crime, because there is no surprise to [the

Warden] as it was his counsel who took the depo-

sition, and because this is a capital case, we be-

lieve that the circumstances of this case merit

consideration of the Sultan deposition pursuant

to our equitable power to supplement the record

on appeal, despite the omission of the deposition

from the District Court record. We therefore va-

cate the grant of summary judgment, and re-

mand the case to the District Court for a full

evidentiary hearing.

(Pet. App. 5-6) The court made no finding that Thompson

was not at fault in failing to develop mental health evi-

dence in state court or that the limitations set forth in 28

U.S.C. § 2254(e2) were satisfied in order to justify its

directive for a “full evidentiary hearing.” Indeed, the

court’s previous opinion indicated to the contrary. (App.

169-70) In justifying its action, the court invoked its

“inherent power to reconsider [its] opinion prior to the

issuance of the mandate.” (App. 6)

* In his concurring/dissenting opinion, Judge Suhrheinrich found

habeas counsel's explanation for the omission of the deposition to be

“implausible, if not intentionally false,” and thus justified the court's

late intervention on grounds of a fraud upon the district court. (App. 82,

89-107) The panel majority, however, declined to join in that conclusion.

(App. 2)

SUMMARY OF THE ARGUMENT

The Sixth Cireuit’s decision withdrawing its final

judgment affirming dismissal of Thompson’s habeas

corpus petition and permitting him to relitigate the merits

of his case is an extraordinary act equivalent to a recall of

the mandate. In Calderon v. Thompson, 523 U.S. 538

-(1998), this Court held that, given a State’s strong interest

in the finality ofits criminal convictions, a federal court of

appeals abuses its discretion when it recalls its mandate

to revisit the merits of an earlier decision denying habeas

relief to a state prisoner unless it acts to avoid a miscar-

riage of justice. Calderon, 523 U.S. at 557-58. Although

acknowledging Calderon’s restrictions on a court of ap-

peals’ ability to recall an already issued mandate, the

Sixth Circuit in this case saw no such restriction of its

ability to reconsider the merits of Thompson’s appeal, even

after this Court had denied certiorari review, because of its

“power over a case” until issuance of the appellate man-

date. (Pet. App. 6)

But the Sixth Circuit’s rationale fails for two reasons.

First, the court’s actions violate the plain language of Fed.

R. App. P. 41(dX2D), which requires that the mandate

issue “immediately” upon the filing of the order of this

Court denying certiorari. Because the Sixth Circuit had no

discretion to withhold issuance of the mandate beyond the

filing of this Court’s order denying certiorari, the court’s

subsequent withdrawal of its judgment denying federal

habeas relief — in reliance upon its improperly withheld

mandate — was an extraordinary act equivalent to a recall

of the mandate. And in the federal habeas context, where a

prisoner seeks relief from a criminal judgment entered by

a state court, this Court has made clear that a decision to

recall a mandate must be measured against the statutory

and jurisprudential limits applicable in habeas cases.

Aside from its clear violation of Rule 41(d)(2)(D), the

Sixth Circuit’s withdrawal of its judgment after finality

had attached — premised upon the notion that it retained

unfettered discretion to reconsider its decision before

issuance of the mandate - is inconsistent with the princi-

ples of finality and comity underlying Calderon. Indeed,

applying those principles, this Court’s denial of certiorari —

the point at which “finality” attached to the Sixth Circuit’s

judgment —- triggered Calderon’s miscarriage of justice

standard as a prerequisite to any reconsideration by the

Sixth Circuit of the merits of the petition, irrespective of

whether the appellate court mandate had in fact issued.

Issuance of the mandate is a purely ministerial function

unrelated to the adjudication of an appeal. And where, as

in this case, the court of appeals’ judgment of affirmance

required no further action in the district court save filing

of the judgment in the court below, the finality of federal

habeas corpus proceedings is not contingent upon the

performance of that residual ministerial function. Indeed,

the State’s strong interest in the “assurance of finality”

beyond that point is indistinguishable from that which

Calderon sought to protect. Calderon, 523 U.S. at 558.

When viewed under the appropriate standard, the

Sixth Circuit’s decision to withdraw its prior final judg-

ment constitutes a grave abuse of discretion. In Calderon,

this Court held that a court of appeals abuses its discre-

tion when it recalls its mandate to revisit the merits of an

earlier decision denying habeas corpus relief “unless it

acts to avoid a miscarriage of justice as defined by [this

Court’s] habeas corpus jurisprudence.” Calderon, 523 U.S.

at 549-50. If the petitioner asserts his actual innocence of

the underlying crime, he must show that “it is more likely

than not that no reasonable juror would have convicted

him in light of the new evidence.” Jd. at 559 (quoting

Schlup v. Delo, 513 U.S. 298, 327 (1995)). If the petitioner

challenges his death sentence, he must show by clear and

convincing evidence that “no reasonable juror would have

found him eligible for the death penalty in light of the new

evidence.” Id. at 559-60 (quoting Sawyer v. Whitley, 505

U.S. 333, 348 (1992)). Neither standard is satisfied under

the facts of this case.

First, the evidence upon which the Sixth Circuit based

its decision — additional mitigation evidence relevant to

the jury’s decision to impose a death sentence — can never

meet Sawyer’s “innocence of the death penalty” standard.

While such evidence may be potentially relevant to the

jury’s selection of the appropriate penalty, it in no way

undercuts the defendant’s eligibility for the death penalty,

which was conclusively determined at the point of Thomp-

son’s conviction for a death-eligible offense, i.e., first-

degree murder, and by the existence of at least one statu-

tory aggravating circumstance. In this case, there were

three.

Nor can Thompson meet Schlup’s “actual innocence”

standard. Neither the initial nor subsequent opinion of the

Sixth Circuit contains any suggestion that Thompson is

“innocent” of first-degree murder, a result that is hardly

surprising, since Thompson himself confessed to the crime

and made no appreciable effort to contest his guilt at trial.

Aside from the overwhelming evidence of guilt, the evi-

dence on which the Sixth Circuit actually based its deci-

sion itself contains a concession of guilt by Thompson

and thus, on its face, defeats any claim of “actual inno-

cence.” In sum, the evidence in this case falls far short of

the showing necessary to disturb the State of Tennessee’s

“all but paramount” interest in finality. Because Thomp-

son has already had extensive review of his claims in both

state and federal courts, “the State’s interests in finality

outweigh [his] interest in obtaining yet another opportu-

nity for [federal habeas] review,” Calderon, 523 U.S. at

557, and the Sixth Circuit’s surprise reconsideration of its

earlier decision — disturbing that finality interest in the

absence of a threatened miscarriage of justice — constitutes

a grave abuse of discretion.

ARGUMENT

I. THE SIXTH CIRCUIT'S DECISION TO WITH-

DRAW ITS FINAL JUDGMENT AFFIRMING

THE DISMISSAL OF THOMPSON’S FEDERAL

HABEAS PETITION IS AN EXTRAORDINARY

ACT EQUIVALENT TO A RECALL OF THE

MANDATE UNDER CALDERON V. THOMPSON.

In Calderon v. Thompson, 523 U.S. 538 (1998), this

Court held that, given a State’s strong interest in the

finality of its criminal convictions, a federal court of

appeals abuses its discretion when it recalls its mandate

to revisit the merits of an earlier decision denying habeas

relief to a state prisoner, unless it acts to avoid a miscar-

riage of justice. Calderon, 523 U.S. at 557-58. Finality, the

Court reasoned, is not only “essential” to both the retribu-

tive and deterrent functions of criminal law but serves to

“preserve the federal balance.” Jd. at 555. In the context of

federal habeas review of state convictions, finality gains

added significance because the proceeding, by its very

nature, “frustrates” the State’s independent authority to

execute its moral judgment.‘ Jd. at 555-56. For this reason,

Calderon restricted the ability of a court of appeals to

recall a mandate denying federal habeas relief — a power

that had historically been viewed as “inherent” — in order

to ensure that the “merits of concluded criminal proceed-

ings” not be revisited in the absence of a strong showing of

actual innocence. Jd. at 558.

In this case, however, the Sixth Circuit attempted to

distinguish Calderon on the ground that the court had not

yet issued its mandate when it withdrew its initial judg-

ment 18 months after entry in order to allow Thompson to

relitigate the merits of his petition in the federal district

court. (Pet. App. 6) The Sixth Circuit’s effort to defeat the

finality of its judgment by withholding its mandate fails

for two reasons. First, its action violates the plain lan-

guage of Fed. R. App. P. 41(d)\(2)(D), which requires,

without exception, that the mandate issue “immediately”

upon the filing of the order of this Court denying certio-

rari. Because the rule allows no discretion to withhold the

mandate beyond that point, the Sixth Circuit’s action was

extraordinary and tantamount to a recall of the mandate.

Second, the Sixth Circuit’s withdrawal of its judgment —

* Recognizing that federal challenges to state convictions “entail

greater finality problems and special comity concerns,” Engle v. Isaac,

456 U.S. 107, 134 (1986) (Burger, C.J., concurring), the decisions of this

Court in the federal habeas context impose significant limits on the

discretion of federal courts to grant relief. Calderon v. Thompson, 523

U.S. at 554-55 (citations omitted). Those jurisprudential limitations

reflect the Court’s “enduring respect for ‘the State’s interest in the

finality of convictions that have survived direct review within the state

court system.’” Jd. at 555. Likewise, the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA) is grounded in “respect for the

finality of state criminal judgments.” Jd. at 558.

an action indicative of a narrow, mandate-based view of

finality - is inconsistent with an unbroken line of this

Court's decisions holding that finality attaches at the point

of “final adjudication” and is not contingent upon the

performance of residual ministerial functions.

Where, as here, nothing remained to be done in the

district court save filing of the Sixth Circuit’s judgment

affirming its decision, issuance of the mandate did not

have the significance imputed to it by the Sixth Circuit; it

was a purely ministerial function unrelated to the adjudi-

cation of the merits of the appeal. Instead, as Calderon

makes clear, the central concern of AEDPA and this

Court’s habeas precedents is a State’s assurance of “real

finality” of its criminal convictions. Jd. at 556-58. The

Sixth Circuit’s decision cannot be reconciled with these

principles and should be reversed.

A. Because the Sixth Circuit had no discre-

tion to withhold issuance of the mandate

beyond the filing of this Court’s order de-

nying certiorari, the court’s subsequent

withdrawal of its judgment denying fed-

eral habeas relief was an extraordinary

act equivalent to a recall of the mandate.

Following its initial disposition of Thompson’s habeas

appeal in January 2003, the Sixth Circuit denied rehear-

ing and a suggestion for rehearing en banc on March 10,

2003, but stayed the issuance of the mandate pending a

petition for writ of certiorari. (Pet. App. 346-47) The Court

denied Thompson’s certiorari petition on December 1,

2003, Thompson v. Bell, 540 U.S. 1051 (2003) (No. 03-

5759) (J.A. 91); a copy of this Court’s order denying certio-

rari was filed with the Clerk of the Sixth Circuit on

December 8, 2003. (J.A. 8) Instead of issuing the mandate

“immediately,” as required by Fed. R. App. P. 41(d)(2)(D),

the Sixth Circuit entered an order on December 12, 2003,

“extending the stay” to allow Thompson to file a petition

for rehearing from the denial of the writ of certiorari and

“thereafter until the Supreme Court disposes of the case.”

(Pet. App. 348; J.A. 8) On January 20, 2004, this Court

denied Thompson’s petition for rehearing. (J.A. 92) A copy

of this Court’s order denying rehearing was filed with the

Clerk of the Sixth Circuit on January 23, 2004. (J.A. 8)

Rule 41, Federal Rules of Appellate Procedure, gov-

erns the procedures relating to the issuance and stay of a

court of appeals’ mandate.’ Sub-section (b) of the rule

provides that the mandate “must issue” seven calendar

days after expiration of the time for filing a petition for

rehearing, unless a petition is filed or a different time is

set by order.® Once a petition for rehearing is filed, Rule

* The mandate of an appellate court establishes the law binding

further action in the litigation by another body subject to its authority.

Finberg v. Sullivan, 658 F.2d 93, 97 n.5 (3d Cir. 1981). Functionally, the

mandate is the formal vehicle for conveying the terms of an appellate

court's disposition to the lower court. Clarke v. United States, 915 F.2d

699, 716 (D.C. Cir. 1990); Ostrer v. United States, 584 F.2d 594, 598 (2d

Cir. 1978) (“The effect of the mandate is to bring the proceedings on

appeal in our Court to a close and to remove it from the jurisdiction of

this Court, returning it to the forum whence it came”).

* Rule 41(b) allows the time for issuance to be shortened or

enlarged by court order. See, e.g., Wolfel v. Bates, 749 F.2d 7, 8 (6th Cir.

1984) (under Rule 41(b), court may “delay the date of the issuance of

the mandate until the court determines whether to grant, deny, o:

remand to the district court the movant’s request for attorney’s fees”,,

Perales v. INS, 575 F.2d 1293, 1295 (9th Cir. 1978) (court orderea

mandate affirming denial of reopening by Board of Immigration

Appeals issued forthwith in case involving eight years of effort to avoid

deportation).

41(b) automatically extends the time for issuing the

mandate to seven days after entry of the order denying

rehearing, unless otherwise ordered by the court.

Although Rule 41 permits the court of appeals to stay

issuance of the mandate pending the filing of a petition for

writ of certiorari, the unequivocal language of Rule

41(d)(2)(D) makes issuance mandatory upon the denial of

certiorari: “The court of appeals must issue the mandate

immediately when a copy of a Supreme Court order deny-

ing the petition for writ of certiorari is filed.” (emphasis

added) By its terms, the rule leaves no room for the

exercise of discretion by the court. In addition, unlike sub-

section (b), there is no provision under sub-section

(d\(2)\(D) authorizing a delay in the issuance of the man-

date following the denial of certiorari. Indeed, even the

Sixth Circuit’s own rules expressly forbid it.’ Rather, the

issuance of the mandate upon receipt of an order of this

Court denying certiorari is a ministerial act leaving no

discretion or power to adopt some other course of action. In

this case, that act should have been performed immedi-

ately upon the filing of this Court’s order with the clerk of

the court of appeals on December 8, 2003. Any further stay

” Rule 41(c), Rules of the United States Court of Appeals for the

Sixth Circuit, provides: “A stay of the mandate pending application to

the Supreme Court for a writ of certiorari shall not be effective later

than the date on which the movant’s application for a writ of certiorari

must be filed pursuant to 28 U.S.C. § 2102 or Rule 13 of the Supreme

Court Rules, as applicable. If during the period of the stay there is filed

with the clerk a notice from the clerk of the Supreme Court that the

party who has obtained the stay has filed a petition for the writ in that

Court, the stay shall continue until final disposition by the Supreme

Court. Upon the filing of a copy of an order of the Supreme Court

denying the petition for writ of certiorari, the mandate shall issue

immediately.” (emphasis added)

of the mandate would have been justified only under the

same exceptional circumstances permitting recall of the

mandate. The Sixth Circuit, however, extended the stay of

the mandate, in violation of Rule 41(d)(2\(D) and its own

rules, pending the filing of a petition in this Court for

rehearing of the denial of certiorari. Even assuming the

court of appeals was authorized to enter such an order, the

extended stay expired by its own terms when this Court

_— of respondent’s petition for rehearing. (Pet. App.

For reasons never explained by the court of appeals,

however, the mandate was never issued. The Sixth Circuit

entered no order further staying issuance of the mandate,

let alone justifying a stay. The mandate simply did not

issue. Five months later, on June 23, 2004, the Sixth

Circuit suddenly withdrew its initial opinion and issued a

second opinion, this time remanding the case to the

district court for a “full evidentiary hearing” on respon-

dent’s federal habeas petition. The Sixth Circuit’s only

acknowledged source of authority for withdrawing its

earlier opinion was its “inherent power to reconsider [the]

opinion prior to issuance of the mandate.” (Pet. App. 6)

But while federal courts are undoubtedly vested with

certain inherent authority over their proceedings and

judgments, that authority may not be invoked to circum-

vent either federal statutes or federal rules. Degen v.

United States, 517 U.S. 820, 823 (1996) (inherent powers

of courts may be controlled or overridden by statute or

rule); Carlisle v. United States, 517 U.S. 416, 426 (1996)

(scope of “inherent power” does not include power to

circumvent federal rules); Bank of Nova Scotia v. United

States, 487 U.S. 250, 254 (1988) (same).

Because Rule 41(d)(2)(D) allows no discretion in the

issuance of the mandate, the filing of this Court’s order

denying certiorari with the Clerk of the Sixth Circuit on

December 8, 2004, operated, as a matter of law, to dissolve

the Sixth Circuit’s March 24, 2003, stay of the mandate. See

also 16A C. Wright, A. Miller & E. Cooper, Federal Practice

and Procedure § 3987.1, p. 744 (3d ed. 1999) (If the Supreme

Court denies certiorari, “the stay is automatically dissolved

and the rule directs that the court of appeals ‘must issue the

mandate immediately’ when a copy of a Supreme Court order

denying the petition for writ of certiorari is filed”). Therefore,

any further stay of the mandate or other action disturbing

the finality of the court’s prior decision following denial of

certiorari is an extraordinary act tantamount to a decision of

the court of appeals to recall the mandate. See, e.g., Adamson

v. Lewis, 955 F.2d 614, 620-21 (9th Cir.) (en banc), cert.

denied, 505 U.S. 1213 (1992) (continuing stay of mandate

following denial of certiorari justified only upon the same

exceptional circumstances permitting recall of the man-

date); see also Bryant v. Ford Motor Co., 886 F.2d 1526,

1529 (9th Cir. 1989), cert. denied, 493 U.S. 1076 (1990)

(Rule 41(b)’s express direction makes threshold showing of

“exceptional circumstances” necessary before mandate may

be stayed after denial of certiorari); Beardslee v. Brown, 393

F.3d 899, 901 (9th Cir. 2004), cert. denied, 125 S. Ct. 982

(2005) (same). And in the federal habeas context, where a

prisoner seeks relief from a criminal judgment entered by a

state court, this Court has made clear that a decision to re-

call a mandate must be measured against the statutory and

jurisprudential limits applicable in habeas cases. Calderon,

523 U.S. at 553. The June 2004 decision of the Sixth Circuit

to withdraw its January 2003 opinion came 198 days after

Rule 41(dX2XD) made issuance of the mandate mandatory

and 152 days after the Sixth Circuit's “extension” of the

stay expired and should, therefore, be deemed the equiva-

lent of a decision by the Sixth Circuit to recall the man-

date subject to the discretionary limitations imposed by

Calderon.

B. A federal habeas judgment becomes “final”

when the court of appeals fully resolves the

appeal and is subject to no further review

or correction by this Court, even if the

mandate of the court of appeals has not yet

Although acknowledging Calderon’s restrictions on a

court of appeals’ ability to withdraw an already issued

mandate, the Sixth Circuit asserted that it retained the

“inherent power” to reconsider its judgment because the

mandate had “not yet issued in this case.” (Pet. App. 6)

But issuance of the mandate, which ordinarily is nothing

more than “a certified copy of the judgment, a copy of the

court’s opinion, if any, and any directions about costs,”

Fed. R. App. P. 41(a), does not have such talismanic

significance. It is a purely ministerial act required by Rule

41, performed by the clerk, and it is wholly separate from

an appellate court’s adjudication of the merits of a case.’

See Finberg, 658 F.2d at 96 n.5 (“[T]he extent of.a Court’s

supervision of a case between entry of judgment and

issuance of the mandate should not be overstated”). While

issuance of the mandate may be evidence of the finality of

* The Third Circuit has expressly recognized the “minimal role” of

a court between the filing of its decision and the issuance of a mandate.

men een ot due to F.3d 112, 117 (3d Cir. 1996) (declining

vaca as moot to death of after decision

= party was filed,

an appellate court’s judgment, it is not necessary to

achieve it.

Undoubtedly, a federal court of appeals retains juris-

diction over a case and, thus, the power to alter or modify

the judgment prior to issuance of its mandate. Wilson v.

Ozmint, 357 F.3d 461, 463 (4th Cir. 2004) (court may

amend “what it previously decided” before issuance of the

mandate); First Gib. Bank v. Morales, 42 F.3d 895, 898

(5th Cir. 1995) (“[blecause the mandate is still within our

control, we have the power to alter or to modify our judg-

ment”); Finberg v. Sullivan, 658 F.2d 93, 102 (3d Cir. 1981)

(“[t]his Court unquestionably may change its judgment

before the mandate becomes effective”); Deering Milliken,

Inc. v. FTC, 647 F.2d 1124, 1128 (D.C. Cir.), cert. denied,

439 U.S. 958 (1978) (as long as appellate court retains its

mandate, it maintains its jurisdiction over the case and

the power to alter the mandate); Burget v. Robinson, 123

F. 262, 264 (1st Cir. 1903) (effect of order staying mandate

after judgment indefinitely is to retain jurisdiction of the

cause in that court and the power to grant rehearing, even

after the term). However, the mere existence of jurisdic-

tion in the court of appeals does not per se negate the

finality of its judgment. “(Flinality is not deferred by the

existence of a latent power in the rendering court to

reopen or revise its judgment.” Market St. Ry. Co. v.

Railroad Comm'n of Cal., 324 U.S. 548, 551 (1945).

This Court has long recognized the strong finality

concerns implicated when the jurisdiction of one sovereign

is invoked to upset a decision of another. Indeed, this

Court has described the requirement of finality as “an

important factor in the smooth working of our federal

system.” Radio Station WOW, Inc. v. Johnson, 326 U.S.

120, 124 (1945). Given the “realm of potential conflict

between the courts of two different governments” created

in that circumstance, the Court, since 1789,’ has been

constrained in its power to intervene in State litigation

only after “the highest court of a State in which a decision

in the suit could be had” has rendered a “final judgment or

decree.” Radio Station WOW, Inc., 326 U.S. at 124. The

current federal statute regulating the Court’s jurisdiction

to review state-court decisions, codified at 28 U.S.C.

§ 1257(a), retains that original “firm final judgment rule.”

Jefferson v. City of Tarrant, 522 U.S. 75, 81 (1997).

To be reviewable by this Court, a state-court judgment

must be final in two respects: (1) it must be subject to no

further review or correction in any other state tribunal;

and (2) it must be final as an effective determination of the

litigation and not merely interlocutory. In other words,

“[iJt must be the final word of a fin. 1 court.” Market St. Ry.

Co., 324 U.S. at 551. Finality for purposes of * 1257(a) is

not contingent upon the issuance of an appellate court

mandate. For this Court has made clear that the mere fact

that residual ministerial acts are to be performed on

remand to a lower court, such as “entering the judgment

which the appellate court had directed,” does not defeat

the finality of a state-court judgment for purposes of

certiorari review. Dep't of Banking v. Pink, 317 U.S. 264,

267 (1942); see also R. Stern, E. Gressman, S. Shapiro &

K. Geller, Supreme Court Practice, ch. 3.5, p. 144 (8th ed.

2002) (“The literal approach [to § 1257(a)] does ascribe

finality to a state court judgment that leaves only ministe-

rial acts to be performed on remand to the lower state

court”); Republic Natural Gas Co. v. Oklahoma, 334 U.S.

* Judiciary Act of 1789, § 25, 1 Stat. 85.

62, 68 (1948) (if nothing more than mere ministerial act

remains to be done, such as entry of judgment upon a

mandate, decree is regarded as conch, ‘ing the case and is

immediately reviewable); Cole v. Violette, 319 U.S. 581,

582 (1943) (order of highest state court deemed “final”

where it finally disposed of all issues in case, leaving

nothing to be done but the ministerial act of entering

judgment in the trial court); Tower v. Fletcher, 114 U.S.

127, 12. (1885) (“The litigation is ended, and the rights of

the parties on the merits have been fully determined.

Nothing remains to be done but to require the inferior

court to perform the ministerial act of entering the judg-

ments in that court which have been ordered”).

The same principles of comity and federalism driving

this Court’s definition of “finality” in the context of

§ 1257(a) also inform the definition of “finality” for pur-

poses of retroactivity analysis. Under Teague v. Lane, 489

U.S. 288 (1989), judicial decisions announcing new rules of

criminal procedure do not apply to cases in which the

conviction becomes “final” before the new rules are an-

nounced. Teague, 489 U.S. at 310. Applying that analysis,

this Court’s decisions establish that a judgment not

reviewed by this Court becomes “final” when “the time for

filing a petition for a writ of certiorari has elapsed or a

” Nor do any of the time limi’ | for seeking review by this Court

run from the issuance of the mandate. Indeed, Sup. Ct. R. 13.3 ex-

pressly provides otherwise: “|t)he time to file a petition for a writ of

certiorari runs from the date of entry of the judgment or order sought to

be reviewed, and not from the issuance date of the mandate.” See also

Sup. Ct. R. 18.1 (appeal from district court commenced by filing notice

of appeal with the clerk of the district court within the time provided by

law “after entry of the judgment sought to be reviewed”); 28 U.S.C.

§ 2101 (time for appeal runs from entry of judgment or decree).

timely filed petition has been finally denied.” Caspari v.

Bohlen, 510 U.S. 383, 390 (1994).”

Likewise, AEDPA does not impose a mandate-based

definition of finality. In fact, none of the limitations peri-

ods contained in the Act run from issuance of the mandate

of the appellate court. Rather, “finality” is determined with

reference to the exhaustion of available avenues of review.

Under 28 U.S.C. §2244(d)(1), a state prisoner must

initiate federal habeas corpus proceedings within one year

from the latest of “the date on which the judgment became

final by the conclusion of direct review or the expiration of

the time for seeking such review.” (emphasis added) Under

28 U.S.C. § 2263, which provides the statute of limitations

for habeas petitions filed by prisoners subject to capital

sentences in states that qualify for expedited collateral

review procedures, an application for habeas corpus relief

under § 2254 must be filed in the appropriate district court

within 180 days “after final State court affirmance of the

conviction and sentence on direct review or the expiration

of the time for seeking such review.” (emphasis added)

Thus, although the terms of AEDPA do not speak specifi-

cally to the question raised in this case, its provisions

“certainly inform [this Court’s] consideration” of it.

Calderon, 523 U.S. at 558 (quoting Felker v. Turpin, 518

U.S. 651, 663 (1996)).

" See also Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987) (“By

‘final,’ we mean a case in which a judgment of conviction has been

rendered, the availability of appeal exhausted, and the time for a

petition for certiorari elapsed or a petition for certiorari finally denied”);

United States v. Johnson, 457 U.S. 537, 542 n.8 (1982) (same); Linklet-

ter v. Walker, 381 U.S. 618, 622 n.5 (1965) (same).

Similarly, in Clay v. United States, 5837 U.S. 522

(2003), the Court addressed finality in the context of the

one-year limitation provision under 28 U.S.C. § 2255,

specifically rejecting the views of two federal courts of

appeals that had adopted a mandate-based definition of

finality.” The relevant provision of the statute required

the initiation of federal post-conviction proceedings within

one year of “the date on which the judgment of conviction

becomes final.” 28 U.S.C. § 2255, ¥6(1) (emphasis added).

The Court held that the judgment of conviction is “final”

when the Supreme Court “affirms a conviction on the

merits on direct review or denies a petition for a writ of

certiorari, or when the time for filing a certiorari petition

expires.” Clay, 537 U.S. at 527. The Court’s ruling in Clay

is particularly instructive here, since it involved applica-

tion of the same rules of appellate procedure at issue in

this case, including the mandate requirement of Fed. R.

“ The Court expressly overruled the decisions of the Fourth and

Seventh Circuits in United States v. Torres, 211 F.3d 836 (4th Cir. 2000),

and Gendron v. United States, 154 F.3d 672 (7th Cir. 1998), cert. denied,

526 U.S. 1113 (1999), which held that the judgment of conviction for

federal post-conviction purposes becomes final on the date the court of

appeals issues its mandate on direct review. See also Johnson v. United

States, 246 F.3d 655, 657 (6th Cir. 2001) (“finality” for purposes of

§ 2255 not delayed pending appellate resolution of post-trial motion

under Fed. R. Crim. P. 33 based on new evidence).

" Congress has dictated this same point of finality in other

contexts as well. See, e.g., 26 U.S.C. § 7481(a(2\B) (decision of the Tax

Court becomes final “[u]pon the denial of a petition for certiorari, if the

decision of the Tax Court has been affirmed or the appeal dismissed by

the United States Court of Appeals”); 38 U.S.C. § 7291(aX2) (decision of

the United States Court of Appeals for Veterans Claims “shall become

final . . . upon the denial of a petition for certiorari, if the decision of the

Court of Appeals for Veterans Claims is affirmed or the appeal is

dismissed by the United States Court of Appeals for the Federal

Circuit”).

App. P. 41." See also United States v. Craigo, 993 F.2d

1086 (4th Cir. 1993) (court’s stay of its mandate to allow

government to seek certiorari left judgment within the

court’s control subject to modification, even though the

judgment became final when the government failed to file

certiorari petition) (emphasis added).

As the discussion above illustrates, in determining the

point of finality in the context of both direct and collateral

review — state and federal — both Congress and this Court

have consistently applied the same definition of finality -

one that is practical, workable, and not dictated or con-

trolled by the particular practices of the rendering courts —

that the judgment at issue be “the final word of a final

court.” Federal habeas review “intrudes on state sover-

eignty to a degree matched by few exercises of federal

judicial authority.” O’Neal v. McAninch, 513 U.S. 432, 448

(1995). When a court of appeals enters a final judgment

denying habeas relief and then denies rehearing of that

decision, it has had its “final word,” subject only to review

“ In those limited situations in which a mandate-based definition

of finality has been employed, the rationale is not based upon any

general view that the mandate is necessary to achieve “real” finality.

For certain determinations under the Speedy Trial Act of 1974, 18

U.S.C. § 3161 et seg., and the former version of Fed. R. Crim. P. 33

(motion for new trial based on newly discovered evidence), for example,

some courts have held that finality attaches upon issuance of the

appellate court’s mandate. Clay, 537 U.S. at 537. But since both require

further action in the district court, a mandate-based definition of

finality in those contexts is entirely reasonable. Issuance of the

mandate is necessary to transfer jurisdiction back to the district court

to permit it to proceed either with a retrial of the defendant or disposi-

tion of a motion. As the Second Circuit reasoned in United States v.

Reyes, 49 F.3d 63 (2d Cir. 1995), it would be anomolous to include

within the pertinent time period an interval during which the lower

court had no jurisdiction to act. Reyes, 49 F.3d at 68.

by this Court. If, as in Teague, Clay and Caspari, denial of

certiorari is of significant enough import, in itself, to

establish finality of a judgment of conviction for purposes

of retroactivity and collateral review, then surely that

event should carry at least as much significance in the

federal habeas context, which this Court has long recog-

nized as collateral and secondary in importance to the

direct review proceedings. See Williams v. United States,

401 U.S. 667, 682-83 (1971); see also Pennsylvania v.

Finley, 481 U.S. 551, 556-57 (1987) (“Postconviction relief

is even further removed from the criminal trial than is

discretionary direct review. It is not part of the criminal

proceeding itself, and it is in fact considered to be civil in

nature”). Indeed, the Tennessee Supreme Court specifi-

cally looks to that event as the point at which a death-

sentenced prisoner has completed “the standard three-tier

appeals process” for purposes of setting an execution

date.“ Moreover, this view is entirely consistent with the

mandatory language of Rule 41(d\2XD), requiring the

clerk of the court of appeals to issue the mandate immedi-

ately upon the filing of a copy of this Court’s order denying

certiorari.

* Tenn. Sup. Ct. R. 12.4(A) provides: “After a death-row prisoner

has pursued at least one unsuccessful challenge to the prisoner's

conviction and sentence through direct appeal, state post-conviction,

and federal habeas corpus proceedings, the State Attorney General

shall file a motion requesting that this Court set an execution date. The

motion shall include a brief summary of the procedural history of the

case demonstrating that the prisoner has completed the standard three-

tier appeals process. The motion shall be considered premature if filed

prior to the expiration of the time for filing a petition for writ of

certiorari or a petition to rehear the denial of a petition for writ of

certiorari in the United States Supreme Court.”

There is no logical justification for departing from this

Court’s “long-recognized, clear meaning” of finality in the

post-conviction relief context, Clay, 537 U.S. at 527, and

imposing a mandate-based definition, especially where, as

in this case, the judgment of the court of appeals affirmed

the summary dismissal of a habeas petition, requiring no

further action in the district court save the filing of the

judgment in the court below. The decision of the court of

appeals lacked none of the attributes of an adjudication.

All that remained to be done following this Court’s denial

of certiorari —- issuance of the mandate by the clerk of

court — is properly characterized as merely “ministerial.”

Thus, the fact that the court of appeals retained some

“latent power” to modify its judgment while it controlled

the mandate did not defer or defeat the finality of its

judgment. Market St. Ry. Co., 324 U.S. at 551 (“finality is

not deferred by the existence of some latent power in the

rendering court to reopen or revise its judgment”).

Because finality of the Sixth Circuit’s judgment

attached when this Court denied respondent’s petition for

a writ of certiorari, the court’s subsequent withdrawal of

that judgment was an event of considerable significance

and demanded an extraordinary justification, particularly

given the State of Tennessee’s strong interest in the

finality of its criminal convictions. As we now show, the

Sixth Circuit’s action lacked any such justification and

should be overturned by this Court.

Il. THE SIXTH CIRCUIT’S DECISION TO WITH-

DRAW ITS FINAL JUDGMENT AND PERMIT

THOMPSON TO RELITIGATE THE MERITS

OF HIS UNDERLYING HABEAS CORPUS PE-

TITION CONSTITUTES AN ABUSE OF DIS-

CRETION.

While the courts of appeals are recognized to possess

inherent power to reconsider sua sponte the merits of an

earlier decision that has become final, the power must be

exercised only in “extraordinary circumstances.” Calderon,

523 U.S. at 549-50 (addressing sua sponte recall of the

mandate) (citing 16A C. Wright, A. Miller & E. Cooper,

Federal Practice and Procedure § 3938, p. 712 (2d ed.

1996)). In the context of federal habeas review of a state

criminal conviction, that power is even further circum-

scribed by the comity concerns underlying this Court’s

habeas precedents. Thus, in Calderon, this Court held that

a court of appeals abuses its discretion when it recalls its

mandate to revisit the merits of an earlier decision deny-

ing habeas corpus relief “unless it acts to avoid a miscar-

riage of justice as defined by [this Court’s] habeas corpus

jurisprudence.” Jd. at 558. “[T]he miscarriage of justice

exception is concerned with actual as compared to legal

innocence.” Jd. at 559 (quoting Sawyer v. Whitley, 505 U.S.

333, 339 (1992)). If the petitioner asserts his actual inno-

cence of the underlying crime, “he must show ‘it is more

likely than not that no reasonable juror would have

convicted him in light of the new evidence. ...’” Id. at 559

(quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). If the

petitioner challenges his death sentence, “he must show

‘by clear and convincing evidence’ that no reasonable juror

would have found him eligible for the death penalty in

light of the new evidence.” Id. at 559-60 (quoting Sawyer,

505 U.S. at 348).

Because the Sixth Circuit failed to perceive its action

as the equivalent of a recall of the mandate, it made no

attempt to justify its decision under either standard. It is

clear, however, that the evidence on which the court based

its remand — the discovery deposition of Faye E. Sultan,

Ph.D. — meets neither criterion. The deposition addressed

only potential mitigation evidence available to defense

counsel and in no way undermined the jury’s determina-

tion of Thompson’s guilt. The Sixth Circuit itself viewed it

as probative in analyzing Thompson’s claim of ineffective

assistance of counsel at sentencing, since it could have

demonstrated available mitigating evidence related to his

mental state at the time of the crime. Judge Suhrheinrich

characterized the Sultan deposition as “powerful mitigat-

ing evidence that should have been presented to the trier

of fact at sentencing.” (Pet. App. 86) Indeed, Dr. Sultan’s

opinion was specifically couched in the language of the

statutory mitigating circumstance under Tenn. Code Ann.

§ 39-2-203(j)(8) (“The capacity of the defendant to appreci-

ate the wrongfuless of his conduct or to conform his

conduct to the requirements of the law was substantially

impaired as a result of mental disease or defect . . . .”):

It is my opinion that ... Mr. Thompson was suf-

fering serious mental illness at the time of the

1985 offense for which he was convicted and sen-

tenced. This mental illness would have substan-

tially impaired Mr. Thompson’s ability to conform

his conduct to the requirements of the law.

Further, Mr. Thompson was the victim of severe

childhood emotional abuse and physical neglect.

The panel majority specifically approved Judge Suhrheinrich’s

summary of the probative value of the Sultan deposition. (Pet. App. 2)

His family background is best described as

highly neglectful and economically deprived. Mr.

Thompson repeatedly witnessed episodes of vio-

lence during his childhood in which one family

member assaulted or brutalized another. There

are significant aspects of Mr. Thompson’s social

history that have been recognized as mitigating in

other capital cases.

(J.A. 20) (emphasis added).

On its face, the potential relevance of this evidence

was limited to the sentencing phase of Thompson’s trial; it

suggested that there might have been additional mitigat-

ing information available to defense counsel that he did

not present. The Sixth Circuit was thus authorized to

revisit its prior decision only if that evidence established

Thompson’s “innocence of the death penalty” under Saw-

yer. Calderon, 523 U.S. at 560 (quoting Sawyer, 505 US.

at 348).” To prevail on such a claim, a petitioner must

demonstrate “by clear and convincing evidence that, but

for a constitutional error, no reasonable juror would have

found ... {him] eligible for the death penalty under the

applicable state law,” Sawyer, 505 U.S. at 336, or, in other

words, “that there was no aggravating circumstance or

that some other condition of eligibility had not been met.”

Id. at 345 (emphasis added). That showing simply cannot

be made on this record.

At the time of Thompson’s offense, first-degree murder

in Tennessee was punishable by death or imprisonment for

” Sawyer’s “actual innocence of the death penalty” exception is

limited to “the context of an alleged error at the sentencing phase of a

capital trial.” Sawyer, 505 U.S. at 340 (quoting Smith v. Murray, 477

U.S. 527, 537 (1986)).

life. Tenn. Code Ann. § 39-2-202(b) (1982). Once convicted

of the crime, a defendant is eligible for imposition of the

death penalty if the jury finds “at least one statutory

aggravating circumstance” beyond a reasonable doubt.

Tenn. Code Ann. § 39-2-203(g) (1982). The jury in this case

found three such aggravators: (1) that the murder was

especially heinous, atrocious or cruel in that it involved

torture or depravity of mind; (2) that the defendant com-

mitted the murder for the purpose of avoiding or prevent-

ing his lawful arrest and prosecution; and (3) that the

murder was committed while the defendant was engaged

in committing robbery or kidnapping. Tenn. Code Ann.

§ 39-2-203(iX5), (6), (7) (1982) (repealed). The Sultan

deposition does not undercut the applicability of any of

these factors to Thompson’s crime.

The “heinous, atrocious or cruel” aggravator in effect

at the time of Thompson’s trial was established by the

circumstances of the murder itself. The proof at trial (as

affirmed in the opinion of the Tennessee Supreme Court

on direct appeal) demonstrated “a particularly senseless

killing indicative of depravity of mind.” Thompson, 768

S.W.2d at 252. Brenda Lane was abducted at knifepoint

from the parking lot of a Wal-Mart store and driven some

distance into rural Tennessee, where she was stabbed

multiple times a> left alive, conscious and alone to die on

a winter night. Jd. As noted in the opinion of the Tennes-

see Supreme Court, it is highly probable that Lane knew

her fate in advance; there is evidence that she was crying

as she rode with Thompson and his juvenile accomplice to

her death. Jd. Moreover, the fact that the murder was

committed while Thompson was engaged in committing

kidnapping and robbery - supporting application of the

“felony murder” aggravator —- has never been disputed.

Thompson's own statement to police established that he

abducted Lane at knifepoint and took her vehicle after

murdering her.” Finally, the Tennessee Supreme Court

concluded that there was ample evidence to support the

jury’s deterinination that the murder was committed to

prevent the lawful aporehension of Thompson and his

juvenile accomplice. They were both on the run from

authorities, and Lane undoubtedly “could have identified

the twosome and raised an alarm after the theft of her

car.” Id. Because these factors remain unaffected by the

evidence on which the Sixth Circuit relied to withdraw its

opinion — or any other record evidence in this case -

Thompson cannot satisfy Sawyer’s miscarriage of justice

exception because he cannot demonstrate that he is

ineligible for the death penalty.

Instead, as even the concurring opinion demonstrates,

the Sultan deposition would be relevant only to the jury's

selection of the appropriate penalty. Even in view of

multiple aggravating circumstances, whether a defendant

in fact receives a capital sentence depends upon the

weighing of individual mitigation evidence against the

statutory aggravator or aggravators found, i.e., the selec-

tion stage. See, e.g., Buchanan v. Angelone, 522 U.S. 269,

275 (1998) (distinguishing between eligibility and selection

phases of capital sentencing process), Tuilaepa v. California,

“ Under Tennessee law at the time of Thompson's offense, “kid-

napping” was committed when a person “forcibly or unlawfully confines,

inveigles, or entices away another, with the intent to cause him to be

secretly confined, or imprisoned against his will.” Tenn. Code Ann. § 39-

2-302 (1982). “Robbery” was defined as the “felonious and forcible

taking from the person of another, goods or money of any value, by

violence or putting the person in fear.” Tenn. Code Ann. § 39-2-501

(1982).

512 U.S. 967, 972-73 (1994) (same). Thus, by its very

nature, the new evidence upon which the Sixth Circuit

based its decision — additional mitigation evidence — can

never meet Sawyer’s miscarriage of justice standard. See

Sawyer, 505 U.S. at 345 (rejecting argument that “inno-

cence of the death penalty” should be extended beyond

elements of the capital sentence to include additional

mitigation evidence). :

Thompson’s ability to meet the less stringent Schlup

standard fares no better. While Schlup’s miscarriage of

justice exception is met by the lower “more likely than not”

standard, this Court has explicitly tied the exception to a

petitioner’s “actual innocence” of the crime. Thus, a

petitioner “must show that it is more likely than not that

no reasonable juror would have convicted him” in light of

newly discovered evidence. Schlup, 513 U.S. at 332

(O'Connor, J., concurring). The evidence in support of an

assertion of actual innocence should be reliable, concrete

and verifiable. Schlup, 513 U.S. at 234. In addition, this

Court has made clear that the miscarriage of justice

exception under Schlup does not extend to “prisoners

whose guilt is conceded or is plain.” Schlup, 513 U.S. at

a Kuhlmann v. Wilson, 477 U.S. 436, 452

Neither the initial nor subsequent opinion of the Sixth

Circuit contains any suggestion that Thompson did not kill

Brenda Lane or that he is otherwise “innocent” of her

murder, a result that is hardly surprising, since Thompson

himself confessed to the crime and made no appreciable

effort to contest his guilt at trial.” Thompson, 768 S.W.2d

at 243. It was Thompson’s own statement that led authori-

ties to Lane’s body, id., and as recently as January 19,

2004, Thompson accepted full responsibility for her mur-

der, as noted in the Tennessee Supreme Court’s May 2004

opinion. Thompson, 134 S.W.3d at 181. Indeed, according

to Thompson’s own mental health expert in state compe-

tency proceedings, Thompson “readily admitted that he

‘killed Brenda Lane.’” (Pet. App. 373)

Aside from the overwhelming evidence of guilt at trial,

the Sultan deposition itself supports Thompson’s guilt, as

demonstrated by the following exchange:

Q. What did Mr. Thompson tell you about the

offense, as best you can recall?

A. As best I recall, Mr. Thompson talked about

his relationship with the young girl that he was

with for the days and weeks prior to this.

Q. Joanne McNamara?

A. Yes. ... What he told me was that they were

thrown out of the place that they had been staying

”(R. 5, Add. 1H, Vol. 16, pp. 85-86, 92)

when it was discovered that they were not in fact

married. I don’t know who it was who portrayed

them as a married couple to the people that they

were staying with, but that the truth of it was

discovered, that someone contacted Joanne

McNamara’s mother - or parents, I don’t know

which; I think mother — to let her know that this

child was in her home, the person they were

staying with, that Mr. Thompson forced the vic-

tim in this case into her car at knifepoint... .

[HJe knew that he had in fact killed her.

(J.A. 41-42) (emphasis added).

Nor can it be argued that Thompson’s new evidence

meets the Schlup standard on the theory that it might

have supported an insanity defense. First, this Court has

made clear that, for purposes of the miscarriage of justice

analysis under Schlup, “actual innocence” is different from

“legal innocence.” Calderon, 523 U.S. at 558; see also__

Bousley v. United States, 523 U.S. 614, 615 (1998) (“Actual

innocence means factual innocence”). The clear example of

actual innocence is “the case where the State has con-

victed the wrong person of the crime.” Sawyer, 505 U.S. at

339-40. An insanity defense cannot satisfy the concept of

“actual innocence,” because it concedes the act, but in-

vokes a bar to legal responsibility for it. See, e.g., Foucha v.

Louisiana, 504 U.S. 71, 76 (1992) (An insanity verdict

“establishes two facts: (i) the defendant committed an act

that constitutes a criminal offense; and (ii) he committed

the act because of mental illness”). This prerequisite of

guilt is incompatible with the requirement of actual

innocence necessary to establish a miscarriage of justice.

Second, even if potential evidence of insanity is an

appropriate consideration for determining whether there

has been a miscarriage of justice, the Sultan deposition

fails to meet even that threshold for consideration because

Dr. Sultan’s testimony fails to establish the defense under

Tennessee law. Consistent with the language of the statu-

tory mitigating circumstance, Dr. Sultan specifically

opined that Thompson’s ability to conform his conduct to

the requirements of the law was “substantially impaired”

as a result of mental illness. (J.A. 20) But that mitigator,

by definition, does not amount to legal insanity, since it

specifically provides that the mental impairment of which

it speaks is “insufficient to establish a defense to the

crime.” Tenn. Code Ann. § 39-2-203(j8) (1982). By con-

trast, an insanity defense under Tennessee law at the time

of Thompson’s crime required more than a showing of

mere impairment; a defendant was required to demon-

strate that he lacked the substantial capacity to conform

his conduct to the requirements of the law. Graham v.

State, 547 S.W.2d 531, 543 (Tenn. 1977). Finally, the

testimony at Thompson's trial of both the defense and

State mental health expert witnesses clearly established

Thompson’s sanity at the time of the offense. (J.A. 264-66)

Dr. Sultan’s testimony would thus provide nothing more

than impeachment evidence in the form of an alternative

opinion on the subject of Thompson’s sanity. And this

Court has made clear that impeachment evidence provides

” As this Court has stated, “the quintessential miscarriage of

justice is the execution of a person who is entirely innocent.” Schlup,

513 U.S. 324-25 (emphasis added).

no basis for finding a miscarriage of justice. Calderon, 523

U.S. at 563 (citing Sawyer, 505 U.S. at 348). In sum, the

evidence on which the Sixth Circuit based its decision falls

far short of the showing necessary to justify the extraordi-

nary act of withdrawing an already final decision.

After the courts of the State of Tennessee affirmed

Thompson’s conviction and sentence on direct appeal and

then refused to disturb it on state collateral review, the

State waited five and one-half years for federal habeas

proceedings to run their course. When the district court

denied Thompson’s federal habeas petition, the Sixth

Circuit affirmed that decision and this Court denied both

certiorari and rehearing. The courts of Tennessee then

took the steps necessary to enforce Thompson’s death

sentence. In the period between this Court’s final disposi-

tion of Thompson’s request for certiorari in January 2004

and the Sixth Circuit’s second decision in June 2004, the

Tennessee Supreme Court set a new execution date,

ordered expedited competency proceedings in the trial

court, disposed of numerous procedural motions seeking to

delay execution of the judgment, and issued a detailed

opinion following expedited appeal proceedings affirming

the trial court’s denial of Thompson’s claim of incompe-

tence for execution. In short, the State marshaled the full

force of its judicial machinery in what should have been

the final step toward execution of its judgment. This case,

like Calderon, illustrates the extraordinary costs associ-

ated with a federal court of appeals’ reconsideration of its

judgment in a habeas case after finality has attached.

The State’s finality interests in this case are no

different from those that Calderon sought to protect.

Those interests are “all but paramount, without regard to

whether the court of appeals predicates the recall on a

procedural misunderstanding or some other irregularity

occurring prior to its decision.” Calderon, 523 U.S. at 557.

Because Thompson has already had extensive review of

his claims in both state and federal courts, absent a strong

showing of actual innocence, “the State’s interests in

finality outweigh the prisoner’s interest in obtaining yet

another opportunity for review.” Id. The Sixth Circuit's

surprise reconsideration of its January 2003 decision

frustrates the State’s “all but paramount” interest in

finality and constitutes a grave abuse of discretion.

CONCLUSION

The judgment of the court of appeals should be re-

versed and the case should be remanded to the court of

appeals with instructions to reinstate its January 9, 2003,

judgment affirming the district court’s denial of habeas

corpus relief.

Respectfully submitted,

PAUL G. SUMMERS

Attorney General

State of Tennessee

MICHAEL E. MOORE

Solicitor General

GORDON W. SMITH

Associate Solicitor General

JENNIFER L. SMITH

Associate Deputy Attorney General

Counsel of Record

ANGELE M. GREGORY

Assistant Attorney General

P.O. Box 20207

Nashville, Tennessee 37202

(615) 741-3487

Attorneys for Petitioner

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