On Point: c. Default/waiver

Pitchford v. Cain, USSC No. 24-7351, 5/28/2026, reversing 126 F. 4th 422 (5th Cir. 2025); Scotusblog page (with links to briefs and commentary)

Batson v. Kentucky held that the Equal Protection Clause prohibits prosecutors from exercising peremptory challenges based on race.  A three-step process is used to implement Batson.  First, the defendant must make a prima facie case that a peremptory strike was based on race.  If the defendant meets this burden, the state must provide a race-neutral reason for the challenged strike.  The defendant may then rebut the prosecutor’s race-neutral reason by showing it was pretextual.

SCOTUS held, in a 5-4 decision, that the Mississippi Supreme Court unreasonably applied Batson when it affirmed the defendant’s conviction for murder after the trial court did not address whether the prosecutor’s proffered race-neutral bases for striking four of five potential black jurors were pretextual.  The Court also found the Mississippi Supreme Court unreasonably determined the facts because it concluded the defendant waived his Batson challenge even though he was not provided an opportunity to rebut the state’s proffered race-neutral explanations and was later assured by the trial court that his Batson objection was preserved for the record.

Rodney Lass v. Jason Wells, 7th Circuit Court of Appeals No. 23-2880, 6/26/24

Lass was charged with multiple felony counts after his first trial on misdemeanor domestic abuse charges ended in a mistrial. During state postconviction and appeal proceedings, he raised claims of vindictive prosecution, ineffective assistance, and violation of his 6th amendment rights. The 7th Circuit denied relief as to Lass’s IAC and 6th amendment claims as procedurally defaulted, and rejects the vindictive prosecution claim because the Wisconsin courts already considered and reasonably rejected Lass’s same “fact-based arguments.”

Graham L. Stowe v. Gregory Van Rybroek, 18-CV-400-wmc (W.D. Wis. 11/6/23).

Having recently prevailed on a judicial bias claim in state court, Stowe makes a return appearance to the blog on his 2018 federal habeas petition. Unfortunately, the Western District of Wisconsin denied the petition, which had been pending for close 5 years. The petition sought relief from the Wisconsin courts’ denial of his 2016  petition for conditional release under Wis. Stat. § 971.17(4)(d). In a novel reading of a nearly three-decades old Wisconsin Supreme Court decision, State v. Randall, 192 Wis. 2d 800, 532 N.W.2d 94 (1995) (“Randall I”), the federal court concludes that “one can reasonably read Randall I to require a showing of both mental illness and dangerousness.”

Erick Daniel Davila v. Lorie Davis, USSC No. 16-6219, 2017 WL 2722418 (June 26, 2017), affirming Davila v. Davis, No. 15-70013 (5th Cir., May 31, 2016) (unpublished); Scotusblog page (including links to briefs and commentary)

In a 5-to-4 decision, the Supreme Court holds that ineffective assistance of counsel in state postconviction proceedings does not provide cause to excuse, in a subsequent federal habeas proceeding, a procedurally defaulted claim of ineffective assistance of appellate counsel.

Charlotte Jenkins v. Percy Hutton, USSC No. 16-1116, 2017 WL 2621321 (June 19, 2017) (per curiam), reversing Hutton v. Mitchell, 839 F.3d 486 (2016)( 6th Cir. 2016); Scotusblog page (including links to briefs and commentary)

Hutton filed a federal habeas petition challenging his death sentence on the grounds that the jury at the penalty phase of his trial hadn’t been sufficiently instructed to consider only the aggravating factors that had been proven during the guilt phase. But he didn’t object to the instructions at trial and didn’t raise instructional error on direct appeal, so his claim was procedurally defaulted. (Slip op. at 1-3). The Sixth Circuit reached the merits of his claim anyway, excusing the default because the jury hadn’t found the existence of aggravating factors and under Sawyer v. Whitley, 505 U.S. 333 (1992). The Sixth Circuit was wrong to do so, says the Supreme Court.

Buck v. Davis, USSC No. 15-8049, 2017 WL 685534 (February 22, 2017), reversing and remanding Buck v. Stephens, 623 Fed. Appx. 668 (5th Cir. 2015) (unpublished); Scotusblog page (including links to briefs and commentary)

Buck was found guilty of capital murder. Under state law, the jury could impose a death sentence only if it found Buck was likely to commit acts of violence in the future. At sentencing Buck’s attorney called Walter Quijano, a psychologist, to give an opinion on that issue. Though the psychologist testified Buck probably would not engage in violent conduct, he also said that race is one factor in assessing a person’s propensity for violence and that Buck was statistically more likely to act violently because he is black. The jury sentenced Buck to death. The Supreme Court, by a 7-to-2 vote, holds Buck’s attorney was ineffective.

Question presented:

Whether the rule established in Martinez v. Ryan, 132 S. Ct. 1309 (2012), and Trevino v. Thaler, 133 S. Ct. 1911 (2013), that ineffective state habeas counsel can be seen as cause to overcome the procedural default of a substantial ineffective assistance of trial counsel claim, also applies to procedurally defaulted, but substantial, ineffective assistance of appellate counsel claims.

Walker Whatley v. Dushan Zatecky, 7th Circuit Court of Appeals No. 14-2534, 2016 WL 4269805, 8/15/16

The maximum penalty for Whatley’s drug possession conviction was dramatically increased—from 2-to-8 years to 20-to-50 years—under a now-repealed Indiana penalty enhancer for drug offenses committed within 1,000 feet of a “youth program center,” defined as a “building or structure that on a regular basis provides recreational, vocational, academic, social, or other programs” for youth. (Sound familiar? Sure it does: see §§ 961.01(22) and 961.49(1m)(b)5.) On habeas review, the Seventh Circuit holds that the statute’s failure to provide an objective standard for determining what “regular” means makes the statute unconstitutionally vague, so Whatley is entitled to resentencing under the non-enhanced penalty scheme.

Kenneth Morris v. Bryan Bartow, 7th Circuit Court of Appeals No. 14-3482, 2016 WL 4207960, 8/10/16

Morris claims his guilty plea to first degree reckless homicide was involuntary, and that his appellate attorney was ineffective for failing to raise the issue of involuntariness in his no-merit appeal. The Seventh Circuit rejects his claims.

Question presented:

Duane Buck’s death penalty case raises a pressing issue of national importance: whether and to what extent the criminal justice system tolerates racial bias and discrimination. Specifically, did the United States Court of Appeals for the Fifth Circuit impose an improper and unduly burdensome Certificate of Appealability (COA) standard that contravenes this Court’s precedent and deepens two circuit splits when it denied Mr. Buck a COA on his motion to reopen the judgment and obtain merits review of his claim that his trial counsel was constitutionally ineffective for knowingly presenting an “expert” who testified that Mr. Buck was more likely to be dangerous in the future because he is Black, where future dangerousness was both a prerequisite for a death sentence and the central issue at sentencing?