Argument analysis: Sometimes oral argument does not produce clarity
on Oct 17, 2014 at 10:47 am
About two-thirds into the opening argument in Jennings v. Stephens on Wednesday, Justice Ruth Bader Ginsburg asked Randolph Schaffer (arguing for Jennings), “May I just clarify it?” referring to his argument. Unfortunately, clarity was not forthcoming, from either arguing party — likely because difficult complexities actually lurk beneath the simple question of when a party must file a notice of appeal. However the Court decides this case, its decision will likely produce useful answers for a broad swath of federal civil cases.
Must a winning capital habeas defendant file a notice of appeal to present arguments that he lost on?
You may recall that Jennings won a new capital sentencing proceeding from a federal district court on habeas (a civil cause of action), having argued that he received ineffective assistance of counsel (IAC) at his capital sentencing in Texas. The district court accepted two of Jennings’s arguments about his lawyer’s ineffectiveness, but rejected a third IAC argument. The state appealed and argued that the district court was wrong in crediting the two IAC arguments.
In response in the Fifth Circuit, Jennings argued not only that the district court had been correct, but that the judgment giving him a new sentencing hearing should also be affirmed on the basis of the third argument as well – the one the district court had rejected. But the Fifth Circuit reversed the grant of relief on the first two grounds, and then ruled that it had no jurisdiction to consider the third argument, because Jennings had not filed his own notice of appeal (and also had not sought a Certificate of Appealability (COA) from the district court, a special prerequisite for federal habeas appeals requiring that “specific issues” be listed).
On certiorari, Jennings argues that the winning party does not usually have to file a notice of appeal to defend his win; rather, a winning party is usually permitted to advance any argument on appeal to defend the judgment he won, so long as he does not seek to expand it. In this case, the judgment in Jennings’s favor granted him “a new sentencing hearing” (or release); Jennings seeks to defend that judgment by arguing that all three grounds of ineffective assistance – not just the two he won on – support it. Texas argues, however, that a party seeking to argue a “claim” on appeal that he lost below must file a separate notice of appeal. Texas also argues that the special issue-specification policies underlying the federal habeas COA requirement should apply to winning defendants as well as losing ones.
The complexities of appeal, particularly on habeas
Federal Rules of Appellate Procedure 3 and 4 impose general requirements that a timely notice of appeal must be filed before the appellate court takes jurisdiction. Rule 3(c)(1)(B) – the intricacy of subsections perhaps suggests that potential complexities exist – requires the appealing party only to “designate the judgment … or part thereof being appealed,” not to list the arguments it will advance. Thus the state’s notice of appeal in this case was pretty standard, stating only that the respondent “hereby appeals … from th[e] … final judgment … conditionally granting habeas relief to” Jennings. The state’s notice didn’t specify any particular issues, claims, or arguments, nor is there any general requirement that it do so. (As for the statutory COA requirement of specifying issues, it has been routinely read not to apply to state appeals at all, although the statute does not say that expressly.) Meanwhile, Rule 4(a) permits but does not require parties to file cross-appeals, and otherwise addresses only timing.
But while simple in concept, it turns out that the general requirements of Rules 3 and 4 can generate some pretty complicated hypotheticals. Unsurprisingly, the Justices asked some, of both sides. When Jennings began by arguing that ineffective assistance of counsel is a “single claim,” Justice Antonin Scalia immediately stopped him: “[W]ait a minute, … when we find ineffective assistance of counsel,” we generally find a “particular … mistake.” But Scalia later suggested to Andrew Oldham, arguing for Texas, that “additional reasons” are “superfluous.” “He got the judgment, he won it,” so it would be “absurd” to require a separate notice of appeal for “additional reasons why I should have gotten a new trial.” (This was the one point at which the transcript indicates “laughter”; I think you had to be there.) As Justice Stephen Breyer also said to Oldham, “I’ve never heard of that … Have you found … one case” in which a winning federal habeas defendant filed a notice of appeal? Oldham’s response was no. (In fact, Shaffer emphasized that there were only eighteen cases in 2013 in which a federal habeas defendant won and the state appealed – “a speck of sand on the beach of cases” no matter how the Court rules.)
Justice Alito suggested that if the rejected third argument had been different in kind – say a “coerced confession” rather than part of an IAC claim — then a habeas defendant who won on IAC grounds could not also defend by arguing the confession on appeal. Jennings said this was a “decent argument” — wisely not quite a concession — but that his three arguments in support of IAC were simply part of a single claim.
In light of the hypotheticals with which he was peppered, Jennings soon “clarified” that he should win based on a more general rule: a winning party may offer any argument to defend a judgment on appeal, so long as he does not seek to expand the relief ordered by judgment. This is the “standard rule” to which Ginsburg ultimately returned. Oldham also conceded it, but argued that “it begs the question of what the judgment is” — a rather lawyerly response.
As for the COA, Jennings noted that the plain language of the statute does not seem to require one from a winning defendant who seeks only to present defensive arguments on appeal. Jennings argued, and some Justices appeared to agree, that the COA requirement applies only to losing habeas defendants. Thus while Justice Anthony Kennedy appeared to be focused on the COA argument, Breyer noted that “we’re back to the same argument” – that is, whether a winning defendant ever needs to file a separate notice of appeal, and then seek a specific COA, to present arguments to defend his judgment.
As Texas’s argument began, Chief Justice John Roberts suggested that “it’s a fairly academic dispute,” and Scalia offered a hypothetical presenting complexities having to do with cross-appeals. Oldham conceded that maybe no cross-appeal by a defendant would be necessary to present some losing arguments to defend an IAC claim, depending on “the contours of the ineffectiveness claim.” This read like a rather damaging, albeit correct, concession.
Then in response to questions from Justices Sonia Sotomayor and Ginsburg, Oldham suggested that under Texas’s view, even a winning habeas defendant should, or even must, file an appeal. At this point the Justices appeared to perceive that Texas’s position could lead to an increased number of federal habeas appeals, a prospect that no doubt disturbs some. Thus Ginsburg urged Oldham to “get down to basics. . . . A judgment winner doesn’t have to appeal, . . . that’s the general rule, right?” “Yes, we agree,” was Oldham’s response. The Chief Justice pointed out that the judgment in this case “just says give him a new sentencing hearing…, it doesn’t” list any particular error. Breyer then referred expressly to the Criminal Justice Legal Foundation’s amicus brief, whose argument he summarized as “don’t make it too complicated.” Otherwise, “we are going to produce a . . . nightmare” of appeals and cross-appeals by winning parties. Justice Elena Kagan then produced yet another hypothetical, involving five similar but separable IAC claims; and Sotomayor asked how a victorious habeas petitioner would even request a COA. (As Ginsburg had earlier suggested, the provision governing COAs appears to apply only to appeals from a final judgment; if a habeas petitioner has won, and merely wants to defend his judgment on appeal, the statute may preclude him from seeking a COA.) This final barrage of questions seemed to quell the Court’s immediate interest in probing further.
Conclusion: Obscure yet not unimportant
In the end it is difficult to predict whether simplicity, in a relatively small category of appeals (winning federal habeas petitioners), will prevail. But the tenor of the argument suggests that that position spans a broad spectrum of the Justices. (Kennedy voiced the only specific concerns regarding habeas COAs — although other Justices likely share them — as opposed to the more general issue about when a notice of appeal is required.) The CJLF amicus brief mentioned by Breyer suggests that a ruling for Jennings on the procedural point will actually speed the implementation of state capital judgments, a concern that may be particularly relevant (if unspoken) in light of cases like Jones v. Chappell, striking down California’s state capital system due to decades-long delays.
On the grand scale of the universe, Jennings is a relatively obscure case that will likely produce no more than a footnote, albeit a useful one, in civil and appellate procedural texts. Yet, like all of the Court’s decisions, it will be of lasting importance for a number of courts and lawyers, including those that frequently confront unusual scenarios in the notice of appeal context.
