Director, Center for Supreme Court AdvocacyNational Association of Attorneys General
This Report summarizes opinions issued on June 21, 2022 (Part I); and cases granted review on that date (Part II).
Opinion: Shoop v. Twyford, 21-511
Shoop v. Twyford, 21-511. In a 5-4 decision, the Court held that a transportation order under the All Writs Act allowing a state prisoner to search for new evidence is not “necessary or appropriate in aid of” a federal habeas corpus action when the prisoner has not shown that the habeas court may consider the desired evidence. Raymond Twyford was convicted of murder and sentenced to death. Ohio courts rejected Twyford’s postconviction claim that his trial counsel was ineffective for failing to present evidence of a head injury he sustained as a teenager, which allegedly left him unable to make rational and voluntary choices. In later federal habeas proceedings, Twyford moved to compel the state to transport him to The Ohio State University Medical Center for a brain scan that could not be performed at the prison. Twyford argued it was “plausible” that the testing was “likely to reveal evidence in support of” his claims and “could plausibly lead to the development of evidence and materials” to counter arguments about procedural default or exhaustion. The district court granted the motion under the All Writs Act, which authorizes federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. §1651(a). The court did not address whether it could consider the evidence Twyford hoped to develop. The Sixth Circuit affirmed, holding that transportation orders to gather evidence are “agreeable to the usages and principles of law,” and determining that transportation to gather evidence was “plausibly related” to Twyford’s claims for relief. The Sixth Circuit found it did not need to consider the admissibility of any resulting evidence. In an opinion by Chief Justice Roberts, the Court reversed.
As a preliminary matter, the Court agreed with the Sixth Circuit that it had jurisdiction to hear the state’s interlocutory appeal because transportation orders like this (1) conclusively require transportation, (2) resolve an important question of state sovereignty distinct from the merits of the prisoner’s claims, and (3) are unreviewable by the time the case has gone to final judgment. Such an order requires a state to take a convicted felon outside the prison’s walls, which creates a risk to public safety and places a burden on the state that cannot be remedied. The Court disagreed that such an order is akin to a “mere discovery order.”
Turning to the merits, the Court agreed with the state that the transportation order was not “necessary or appropriate” for purposes of the All Writs Act because Twyford failed to show the desired evidence would be admissible in the habeas case. (The Court did not reach the state’s argument that the All Writs Act does not authorize this type of order at all.) AEDPA restricts the ability of federal habeas courts to develop and consider new evidence. If a prisoner failed to develop the factual basis of a claim in state court proceedings, a federal court may admit new evidence only if the prisoner’s claim relies on a new rule of constitutional law or a factual predicate that could not have been previously discovered through due diligence. Even if one of these exceptions applies, the prisoner must also show that the desired evidence would demonstrate that no reasonable factfinder would have convicted him of the charged crime. Thus, “a court must, before facilitating the development of new evidence, determine that it could be legally considered in the prisoner’s case.” Otherwise, expanding the record would “prolong federal habeas proceedings with no purpose” and disturb the state’s significant interest in repose. “A court therefore must, consistent with AEDPA, determine at the outset whether the new evidence sought could be lawfully considered.” The Court ruled that the All Writs Act cannot be used to circumvent these requirements; a writ is not “necessary or appropriate” if it “enables a prisoner to fish for unusable evidence.” Because Twyford’s motion shed no light on how the desired evidence would be admissible in the habeas proceeding―either on the merits or to excuse a procedural default―the district court erred by ordering the state to transport him to gather new evidence.
Justice Breyer dissented, joined by Justices Sotomayor and Kagan. Justice Breyer argued that the Sixth Circuit lacked jurisdiction to hear the state’s interlocutory appeal. Courts of appeals generally have jurisdiction to review final decisions, and Congress has authorized the Supreme Court to promulgate rules defining when an order is final for purposes of appeal, but the state asked the Court to create such a rule outside of the rulemaking process. The Court has occasionally allowed appeals from non-final decisions under the “collateral order doctrine,” but that doctrine’s scope is limited. Justice Breyer agreed with the Court that transportation orders conclusively require transportation and are largely unreviewable after a final judgment, but he disagreed that such orders resolve an important question of state sovereignty distinct from the merits of the prisoner’s claim. First, such orders are not “especially important,” since they are analogous to discovery orders that are not immediately reviewable. If a transportation order implicates “unusually important interests,” a state may seek a discretionary interlocutory appeal or a writ of mandamus, or it may “defy the order and incur a court-imposed sanction, which may then itself be appealed.” Second, said the dissent, the Court overstates the impact of such orders on state sovereignty because the transportation of a prisoner to the official prison hospital does not impose a special risk. Finally, asserted the dissent, the question here is not conceptually distinct from the merits of Twyford’s habeas claims because at this early stage the district court’s assessment of the desired evidence is only preliminary, and the court will need to make a later determination whether the evidence is in fact admissible. Justice Gorsuch separately dissented, stating that he would have dismissed the case as improvidently granted “when the jurisdictional complication became apparent.”