[Posted January 14, 2015] Leave it to the Big Supremes to upstage my tenth anniversary with a significant decision on an appellate-procedure topic. Today, the US Supreme Court hands down Jennings v. Stephens, which addresses the obligation of an appellee to appeal issues that he loses below.


This is a habeas proceeding in a death-sentence case. Jennings asserted three separate grounds for habeas relief in US District Court after being sentenced in Texas state court. The district court refused the petition on one of the grounds, involving improper closing argument by Jennings’s own lawyer; but it granted the petition as to two other grounds, relating to the lawyer’s failure to obtain and adduce mitigating evidence. The district judge gave the state 120 days within which to give Jennings a new sentencing hearing, commute his sentence, or (gulp!) release him.


Well, don’t worry about this last part; the sovereign State of Texas is not about to let a murderer just walk. The state appealed to the Fifth Circuit. On appeal, Jennings defended the issuance of the writ on the two successful counts, but he also urged affirmance on the third ground, on which he had lost below.


Now, here’s the twist that makes this an interesting procedural case: Jennings hadn’t noted an appeal. Nor had he obtained a certificate of appealability for the one issue on which he lost.


The Fifth found this to be a fatal deficit. It reversed on the two evidentiary issues, and found that it didn’t have jurisdiction to consider the closing-argument issue. That means that Jennings is back on death row. But the Supreme Court granted certiorari to review the case.


Today, by a vote of 6-3, the Court reverses the judgment and directs the Fifth Circuit to address the closing-argument issue. The majority comprises some unusual bedfellows: Justice Scalia writes the opinion of the Court, joined by the Chief Justice and the four members of the Court’s liberal wing – Justices Ginsburg, Breyer, Sotomayor, and Kagan. (If you’ve been paying careful attention, you’ll know that Justice Scalia, one of the Court’s most prominent conservatives, has been voting in favor of criminal defendants quite a lot lately.)


Relying on a 90-year-old decision that’s still good law, the majority notes that the relief that Jennings sought in the third count is exactly the same as the relief he sought elsewhere in the petition – resentencing, commutation, or release. In such situations, an appellee may “urge in support of a decree any matter appearing before the record, although his argument may involve an attack upon the reasoning of the lower court,” even where he doesn’t press a cross-appeal.


This sounds much like the right-for-the-wrong-reason approach that’s employed by appellate courts everywhere. But Texas makes it interesting with a novel argument. The state points out that if Jennings succeeds in getting a new sentencing based on the argument issue, then the new hearing will have to take place without the contested argument. That’s relief that he wouldn’t have received based on the two evidentiary issues. The majority answers that appellate courts don’t review lower courts’ opinions; they review lower courts’ judgments. Federal courts don’t have unlimited “supervisory authority over state trial courts.”


The state’s argument fails because by adding the extra ground in his argument, Jennings wasn’t expanding on his rights; nor was he asking the court to impose any additional obligations on the state. But that leaves the issue of a certificate of appealability, which Jennings certainly didn’t get. Normally that certificate is an essential jurisdictional requirement for appealing the denial of a habeas petition. But the majority dodges this problem by noting that Jennings wasn’t appealing to the circuit court. The state was. The justices specifically hold that “the defense of an appealed judgment on alternative grounds” is not itself an appeal.


The Court sends the case back to the Fifth Circuit, to consider the merits of the closing-argument issue. Keep in mind that this may turn out to be an empty victory for Jennings; the reasonably sympathetic district court has already rejected it, and the Fifth hasn’t seemed too receptive to his position up to now. But his appeal is still alive.


For the rest of us, we get an important ruling on which issues a partially successful litigant must cross-appeal in a federal case.