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Seems Like Old Times for the Sixth Circuit at SCOTUS

This morning's summary reversal of a habeas petition grant in Mays v. Hines.


There was a time not so long ago when the Supreme Court would routinely reverse the U.S. Court of Appeals for the Sixth Circuit, most frequently in habeas cases in which the Sixth Circuit had granted the petition. These decisions were usually unanimous, and often made without oral argument. It happened often enough that court-watchers speculated whether the Sixth Circuit was becoming the "new Ninth" because of the inability or unwillingness of some Sixth Circuit judges to follow the Supreme Court's instruction.

Thus it seemed like old times this morning when the Supreme Court summarily reversed the Sixth Circuit's grant of a habeas petition in Mays v. Hines. The Court issued a brief per curiam opinion over a single noted dissent.

In the opinion below (which was curiously unpublished), a divided panel of the Sixth Circuit granted Tennessee death-row inmate Anthony Darrell Dugard Hines' habeas petition on the grounds that the state court had unreasonably rejected Hines' ineffective assistance of counsel claim. The panel's majority of Judge's Cole and White issued a lengthy per curiam opinion. Judge Kethledge dissented.

This morning's opinion in Mays concludes it was the Sixth Circuit, not the Tennessee state courts, that were unreasonable. Here is how the Court's per curiam opinion begins:

A Tennessee jury found Anthony Hines guilty of murdering Katherine Jenkins at a motel. Witnesses saw Hines fleeing in the victim's car and wearing a bloody shirt, and his family members heard him admit to stabbing someone at the motel. But almost 35 years later, the Sixth Circuit held that Hines was entitled to a new trial and sentence because his attorney should have tried harder to blame another man. In reaching its conclusion, the Sixth Circuit disregarded the overwhelming evidence of guilt that supported the contrary conclusion of a Tennessee court. This approach plainly violated Congress' prohibition on disturbing state-court judgments on federal habeas review absent an error that lies "'beyond any possibility for fairminded disagreement.'" Shinn v. Kayer, 592 U. S. ___, ___ (2020) (per curiam) (slip op., at 1); 28 U. S. C. §2254(d). We now reverse.

The opinion makes clear that the panel opinion simply failed to engage in the proper legal analysis. Describing the lower court's arguments as "unreasonable," "untenable," and of "little merit," the per curiam scarcely disguises the Court's impatience with the Sixth Circuit panel's approach. (Recall that most of the justices have seen this sort of thing from the Sixth Circuit before.)

More from the opinion:

Had the Sixth Circuit properly considered the entire record, it would have had little trouble deferring to the Tennessee court's conclusion that Hines suffered no prejudice regarding his conviction or sentence. Again, the critical question was not whether the Sixth Circuit itself could see a "'substantial' . . . likelihood of a different result" had Hines' attorney taken a different approach. Cullen, 563 U. S., at 189. All that mattered was whether the Tennessee court, notwithstanding its substantial "latitude to reasonably determine that a defendant has not [shown prejudice]," still managed to blunder so badly that every fairminded jurist would disagree. Knowles v. Mirzayance, 556 U. S. 111, 123 (2009).

It did not. The Tennessee court reasonably looked to the substantial evidence of Hines' guilt. Hines, 2004 WL 1567120, *27–*28. And it reasonably rejected the "'farfetched'" possibility that Jones committed and self-reported a gruesome murder, in the presence of a witness, at a place where he was well known to the staff. Ibid. In light of this straightforward, commonsense analysis, the Sixth Circuit had no license to hypothesize an alternative theory of the crime in which Jones became a suspect 35 years after the fact—much less rely on that fanciful theory to grant relief . . .

The Sixth Circuit had no reason to revisit the decision of the Tennessee court, much less ignore the ample evidence supporting that court's conclusion.

Justice Sotomayor noted her dissent from today's decision, but did not author a dissenting opinion.

NEXT: In Defense of CUNY Law Dean Mary Lu Bilek

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  1. The anti-death penalty lobby has basically adopted the anti-abortion lobby's playbook: Since they can't get SCOTUS to give them what they want, which is a complete ban on the death penalty/abortion, their back up position is to make the death penalty/abortion impossible by imposing one legal hurdle after another, even to the point of being completely ridiculous.

    And we're about to see the same thing happen with guns. So long as it isn't a Chicago-style complete ban on gun ownership, states will otherwise be permitted to nibble away at it.

    1. Then after raising the cost of the death penalty with largely frivolous appeals primarily to delay executions they then complain that it takes too long and costs to much to execute someone.

      1. I suppose the question is this: If you believe the state is following a thoroughly misguided policy, whether with respect to the death penalty, abortion, or guns, what is the extent to which you should simply toss as many monkey wrenches into the machinery as possible, and make it as hard as possible for the state to do what you consider the wrong thing.

        On the one hand, at some point, policy makers have the right and the duty to make policy, whether I happen to agree with it or not, and whomever loses is going to believe the state is following a misguided, perhaps even evil, policy. And if the legal arguments are frivolous, they should be sanctioned as frivolous.

        On the other hand, some of our most important historical moments -- such as the abolition of Jim Crow -- came only because some people stubbornly refused to give up.

        1. With policy, as with most things, less is truly more. There is no 'duty to make policy' - the first job of policy makers is to respect and defend the constitution (federal or state, as appropriate). The second job is to decide when policy is both necessary and permitted. The third job is to evaluate what constitutional policies would actually solve the problem that makes policy necessary. Actually making policy should be a distant fourth priority, after the first three have been satisfied.

          Your approach leads to terrible 'do something' policy-making which imposes substantial costs but no benefits.

          1. By "not making policy" about abortion, it's legal, which is fine if you support abortion rights but not so much if you think it's mass murder. And, we're either going to have the death penalty or not have the death penalty; there's no real way the state can simply not take a position. Ditto guns; you like "no policy" if you're a Second Amendment absolutist; not so much if you're trying to do something about the violence.

            Not to decide is to decide.

            1. The death penalty being on the books is, of course, policy in the first place. The default position would be no death penalty. But even starting from where we are today, clearly no death penalty is constitutional, while we have abundant SCOTUS precedent that having the death penalty is also constitutional. So you're fine either way there. But this isn't a case where we have no policy, its a case where we have a policy, and the demand is to rescind that - that's fine. (It also is possible to both have and not have the death penalty - because federalism. State death penalty with no federal death penalty is a valid arrangement). Nothing here involves a 'duty to make policy' though.

              But gun rights are a clear example of the problems with a 'duty to make policy'. The second amendment is pretty clear - "shall not be infringed". But it gets even worse once you get to the specific proposals. Not one of them would have a noticeable impact on gun crime. 'Duty to make policy' just translates into bad policy that imposes costs without solving anything in this case. And that ultimately leads to the need to 'do something' again and again, which further infringes the rights of the people with no practical gains. Less is definitely more when it comes to gun legislation.

              (Britain is meanwhile talking about licensing kitchen knives. The argument ad absurdum is playing out across the pond right now!)

              1. OK, back up a minute.

                My original point was not to resolve whether the DP, abortion, or gun control are good policy. My point is that whoever ends up being on the losing side of whatever policies we end up with then proceeds to toss as many monkey wrenches into the system to be as disruptive as possible.

        2. In the pro-life case, "the State" isn't making a bad decision, 5 black robed thugs are forcing their personal beliefs on the rest of us.

          That is not entitled to any deference.

          In the death penalty case, people with no respect for the US Constitution, the rule of law, or democracy are trying to get more black robed thugs to force their personal political beliefs on the rest of us, rather than attempting to make the case to voters and getting the law changed.

          That is not entitled to any respect.

          1. In the pro-life case, how is that different from legislative thugs forcing their personal beliefs on women who want abortions?

            The court is merely telling the legislative bullies to leave women alone. It's not forcing their personal beliefs; it's telling the legislature not to force its personal beliefs. Let the decision be made by the women.

    2. ineffective defense -
      Sometimes the evidence is so overwhelming that the defense will look like idiots trying to defend his/her innocence. Then during penalty phase , the defense has lost all credibility, resulting in a harsher sentence. This will often create a catch 22 for the defense, which leads to the inevitable - every guilty case becomes "ineffective counsel"

  2. I have come to oppose the death penalty.

    1) It is a rent seeking seeking scheme for the $billion appellate business, providing lawyer employment of no value;

    2) the dose is too low to have any effect;

    3) the opiate overdose crisis of 83000 deaths in 2020 has gone beyond the wildest dreams of the most extreme death penalty advocate;

    4) the Italian death penalty is more effective, cheaper, and more reliable. A guard waves a carton of cigarettes. A troublesome inmate is stabbed 50 times. The investigation concludes he committed suicide. The US has a tiny suicide rate in prison. Countries without the death penalty have a high rate of suicide.

    1. You come across like you get your news from The Onion. Which is satire. Seriously, there is an Onion video espousing your death penalty jurisprudence.

  3. So. . . .OK, what's going on at the 6th Circuit then?

    Why did they make such an egregious decision?

    1. Judicial advocacy. Maybe they hope that the Supreme Court might miss one or two of their opinions.
      This is a habeas case. You can't argue innocence in a habeas case except in very rare, unusual circumstances which were not present here. I won't be surprised to see anti-capital punishment advocates claiming that Hines is another "innocent" man who is getting executed.

      1. Or, maybe they just believe that there was a provable case of ineffective counsel. Ironic that "Beyond any possibility of fair-minded disagreement" is the standard, but you are not willing to recognize that there might be two panel judges who have a fair-minded disagreement with you.

        1. Even you don't believe that they have a fair-minded disagreement, because if you did you'd try to offer the evidence and arguments that supported that disagreement.

          Did you even bother to read the case? Any of the opinions? Or would the facts just get in the way of your predetermined outcome?

          There is no "fair-minded" way you can say it's impossible for the jury to have reasonably convicted him.

          There's not "fair-minded" way you can say that the jury obviously would have thought Jones a likely murder suspect.

          The 6th doesn't get to judge the "ineffective counsel" claim, that was left for the State court.

          All the 6th gets to do is to decide if there's no possible way the State court made the right choice.

          And no reasonable person can make that argument. Which is why the two "judges" from the 6th didn't even try.

          Read the opinion

  4. Does the Sixth Circuit have an abnormal number of capital cases? Not much capital punishment where I live, but in both federal cases I can think of the First Circuit vacated the death sentence. Defendants are Gary Lee Sampson and Dzhokhar Tsarnaev; the latter's case is headed to the Supreme Court.

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