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Justices Sonia Sotomayor and Ketanji Brown Jackson said Monday the U.S. Supreme Court should resolve a circuit split regarding how many circuit judges' votes are needed to allow a habeas appeal, critiquing the denial of cert to a death row prisoner.

Justice Sotomayor from the denial of certiorari, joined by Justice Jackson, and said the case of Lance Shockley was a chance to resolve an "entrenched circuit split" over what's needed for a prisoner to begin a habeas corpus appeal. In habeas cases, the right of appeal is not automatic and counsel is not appointed.

When Shockley asked the Eighth Circuit to let him appeal his Eastern District of Missouri habeas denial, one of the three circuit judges on his panel voted to grant a certificate of appealability, while two did not. Shockley then argued to the Supreme Court that only one judge's vote is needed.

Although the Supreme Court on Monday denied the petition, Justices Sotomayor and Jackson said the case deserved to be heard.

"Congress specified that 'a circuit justice or judge' can grant permission to appeal," Justice Sotomayor wrote. "There are good reasons to think that Congress conditioned the right to an appeal on a single judge's vote."

The justice added, "Proceeding to the merits with a full panel after a judge votes to grant a certificate also promotes efficiency. Because appeals should proceed so long as they present a debatable issue, the question whether to grant a certificate should not be a contentious one."

The Third, Fourth, Seventh and Ninth circuits allow habeas appeals to proceed on just one judge's vote. Five other circuits take an opposing view, Shockley's counsel said in his November cert petition.

Justice Sotomayor also noted that the word limit for an appealability request is strict — 5,200 instead of the usual 13,000.

"In that limited space, applicants must focus on establishing that their claim meets the plausibility standard for granting a certificate, rather than showing the claim is ultimately meritorious," she wrote.

After U.S. Circuit Judge Jane Kelly voted to grant Shockley a certificate, Shockley moved for the full Eighth Circuit to rehear the case en banc. Judge Kelly was joined by U.S. Circuit Judge Ralph Erickson in saying that en banc review should be granted, but the two were overruled.

Shockley's counsel told the high court in November, "Petitioner should not be put to death without the opportunity to appeal Sixth Amendment claims that multiple judges believe merit further review, merely because he is imprisoned in Missouri rather than neighboring state Illinois. When a person's life hangs in the balance, justice requires more than a lottery between circuits."

According to Shockley's November petition, in November 2004, he was in a car crash and his passenger died. In March 2005, the Missouri Highway Patrol officer investigating the crash was killed in his driveway. Shockley was charged days later with first-degree murder.

A death-qualified jury was picked for Shockley. The juror who later became his foreperson told the judge on a break during voir dire that he had self-published a book, but Shockley's trial counsel did not ask more questions about it, and he was found guilty after the five-day guilt phase.

The next day, his trial counsel got a copy of the juror's book, called "Indian Giver," according to Shockley's petition.

"The self-described 'fictionalized autobiography' contained violent themes of vigilante justice, including one particularly gratuitous section 'chronicling the protagonist's brutal and graphic revenge murder of a defendant who killed the protagonist's wife in a drunken-driving accident,'" his petition said.

Shockley's trial counsel then asked the judge to question the juror on the record. The judge declined, and counsel asked for a mistrial, which the judge denied. However, the juror was removed from the jury for the death-penalty phase.

"Still, the jurors with whom [the foreperson] admitted to sharing copies of and speaking about his book continued to serve during the penalty phase," Shockley's petition said.

Before the judge imposed a sentence, they invited Shockley's trial counsel to put more information on the record regarding the juror, and the lawyer declined to do so. Shockley's counsel said this left him without a record to support his ultimately unsuccessful mistrial and new-trial motions to the Supreme Court of Missouri.

"The court acknowledged that before sentencing, the judge sent counsel a letter offering the opportunity to subpoena and question jurors about [the foreperson's] potential prejudices and conduct. Defense counsel not only declined this opportunity but 'specifically waived any right to such a hearing,'" the cert petition said.

The Supreme Court of Missouri refused to find ineffective assistance of counsel.

Justice Sotomayor wrote Monday, "It is difficult to see how an attorney's decision not to call witnesses in support of a credible mistrial motion, when invited to do so by the presiding judge in a capital murder trial, could fail to constitute ineffective assistance of counsel" under 1984's .

The Missouri Attorney General's Office said in its December Supreme Court brief that Shockley was "merely attempting to manufacture a circuit split where none exists. This court and Congress have left it to the circuit courts of appeal to decide how they handle applications for certificates of appealability."

It further said that during the federal district court habeas phase in 2023, Shockley's habeas counsel — different from counsel who filed his Supreme Court petition — was ordered to show cause why they should not be sanctioned for "muddling briefing with frivolous arguments and fallacious assertions" and showing a "lack of candor," in the attorney general's office's words.

Shockley is represented by Daniel Woofter of Russell & Woofter LLC.

David Vandergriff is represented by Michael Spillane of the Missouri Attorney General's Office.

The case is Lance Shockley v. David Vandergriff, case number 24-517, in the Supreme Court of the United States.

--Editing by Dave Trumbore.