Thompson v. Lumpkin

T
                  Cite as: 592 U. S. ____ (2021)             1

                      KAGAN, J., concurring

SUPREME COURT OF THE UNITED STATES
 CHARLES VICTOR THOMPSON v. BOBBY LUMPKIN,
  DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
     JUSTICE, CORRECTIONAL INSTITUTIONS
                  DIVISION
   ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
    STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
              No. 20–5941. Decided March 22, 2021

   The petition for a writ of certiorari is denied.
   JUSTICE KAGAN, with whom JUSTICE BREYER and
JUSTICE SOTOMAYOR join, concurring in the denial of certi-
orari.
   A provision of the Antiterrorism and Effective Death Pen-
alty Act of 1996, now codified at 

28 U.S. C

. §2254(e)(2), lim-
its the availability of evidentiary hearings in federal habeas
proceedings. “If the applicant has failed to develop the fac-
tual basis of a claim in State court proceedings,” §2254(e)(2)
states, then the habeas court “shall not hold an evidentiary
hearing on the claim” unless it finds two conditions met.


Ibid. First, the claim

must rely on either “a new rule of
constitutional law” or “a factual predicate that could not
have previously been discovered through the exercise of due
diligence.”

Ibid. Second, the facts

underlying the claim
must be “sufficient to establish by clear and convincing ev-
idence that but for constitutional error, no reasonable fact-
finder would have found the applicant guilty of the under-
lying offense.”

Ibid.
Notice how much

rides on that provision’s opening clause.
The restriction of evidentiary hearings never kicks in, the
clause says, unless “the applicant has failed to develop the
factual basis of [his] claim in State court proceedings.”
Ibid.; see Williams v. Taylor, 

529 U.S. 420

, 430 (2000) (“By
the terms of its opening clause the statute applies” only
when “the prisoner has failed to develop the facts”). And
this Court has held in no uncertain terms that the phrase
2                      THOMPSON v. LUMPKIN

                         KAGAN, J., concurring

“failed to develop” implies a “lack of diligence”—or other-
wise said, “some omission, fault, or negligence” attributable
to the habeas applicant.

Id., at 430–431.

So if an appli-
cant’s claim went “undeveloped in state court” because of
something other than his own neglect—most typically, be-
cause of “the prosecution[’s] conceal[ment of] the facts”—
then §2254(e)(2)’s restriction of evidentiary hearings would
not apply.

Id., at 434.

In that case, the habeas petitioner
does not have to meet the section’s stringent demands. See


id., at 435

(“[O]nly a prisoner who has neglected his rights
in state court need satisfy [§2254(e)(2)’s two] conditions”).
Even if he cannot do so, he can obtain an evidentiary hear-
ing.
  In this case, the Court of Appeals for the Fifth Circuit re-
jected petitioner Charles Thompson’s request for an eviden-
tiary hearing on two claims relating to his capital sentence.
See Thompson v. Davis, 

916 F.3d 444

, 458 (2019). Thomp-
son could not get a hearing, the court held, because he al-
leged errors only in his punishment proceeding. “Even if
Thompson were to prevail on th[ose] claim[s],” the court ex-
plained, “his guilty verdict would remain untouched.”

Ibid.
According to the

Fifth Circuit, that meant Thompson could
not satisfy §2254(e)(2) because its second condition de-
mands that the applicant’s claims refute his guilt.* And so,
the court concluded, “the district court did not have discre-
tion to grant [Thompson] a hearing.”

Ibid.
But that analysis

skips a critical step. As just explained,
§2254(e)(2)’s conditions never come into play if a habeas pe-
titioner has pursued his claim with diligence in state court.
And they therefore would not prevent an evidentiary hear-
ing. Yet the Fifth Circuit decision says not a word about
the question of diligence. The court did not discuss whether

——————
  * That issue is itself the subject of a Circuit split. Compare 

Thompson,
916 F.3d, at 458

, with Thompson v. Calderon, 

151 F.3d 918

, 924 (CA9
1998) (en banc).
                  Cite as: 592 U. S. ____ (2021)            3

                      KAGAN, J., concurring

Thompson “made a reasonable attempt, in light of the in-
formation available at the time, to investigate and pursue
[his] claims in state court.” 

Williams, 529 U.S., at 435

. Nor
could the court have thought his lack of diligence so clear
as to somehow go without saying. Consider that the court,
just a few paragraphs earlier, granted a certificate of ap-
pealability (COA) on Thompson’s two claims even though
they were procedurally defaulted. It did so because “jurists
of reason could debate” (as the COA standard requires)
whether the default resulted not from Thompson’s neglect
but from the State’s concealment of 

evidence. 916 F.3d, at
457

. That “debatable” question is the same one Thompson’s
request for a hearing raises. If Thompson’s claims went un-
developed in state court not through his own fault, but be-
cause “the prosecution concealed the facts,” then
§2254(e)(2) would drop out of the picture. 

Williams, 529
U.S., at 434

. So in failing to address the (concededly de-
batable) diligence issue, the Fifth Circuit may have wrongly
deprived Thompson of an evidentiary hearing.
  Still, I do not think this Court’s intervention warranted.
I doubt that the Fifth Circuit meant to adopt a novel view
of §2254(e)(2), in conflict with how this Court has construed
the provision and how every other Court of Appeals applies
it. See, e.g., Williams v. Jackson, 

964 F.3d 621

, 630–631
(CA7 2020) (“[F]ocusing on the innocence requirement
skims over” another issue—that §2254(e)(2) “does not pro-
hibit a hearing where the petitioner’s failure to develop the
factual basis for his claim was beyond his control”). Indeed,
several prior Fifth Circuit decisions have gotten the law
right. See, e.g., Harrison v. Quarterman, 

496 F.3d 419

, 428
(2007) (recognizing that §2254(e)(2) “is not operative” if the
petitioner was diligent). And assuming the decision below
is a one-off misapplication of law, our rules counsel against
granting review. See Supreme Court Rule 10 (stating cri-
teria for a writ of certiorari). That course is all the more
appropriate here because a later decision in Thompson’s
4                 THOMPSON v. LUMPKIN

                    KAGAN, J., concurring

case raises serious questions about whether an evidentiary
hearing would have led to granting him relief on the merits.
See Thompson v. Davis, 

941 F.3d 813

, 816 (CA5 2019). So,
because I doubt the Fifth Circuit will repeat its error, and
because that error probably made no difference, I concur in
the denial of certiorari.

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