Under the federal law governing efforts by state prisoners to seek post-conviction relief in federal courts, prisoners who lose at the trial level can only appeal that decision if they can show that reasonable judges could disagree with the ruling or that the case should be allowed to move forward. The Supreme Court declined on Monday to decide whether prisoners can make that showing as long as at least one appeals court judge votes to grant them permission to appeal.

Justice Sonia Sotomayor dissented from the denial of review in the case of Lance Shockley, who was convicted and sentenced to death for the 2005 murder of a Missouri highway patrol officer who had been investigating a fatal car accident in which Shockley had been the driver. Justice Ketanji Brown Jackson joined Sotomayor’s six-page dissent.

The brief unsigned order denying review was part of a list of orders from the justices’ private conference on Friday, March 28.

Shockley contended that his trial counsel violated his Sixth Amendment right to have effective representation by an attorney. Although the foreman at Shockley’s trial had self-published a “fictionalized autobiography” depicting the protagonist’s attempt to seek “vengeance” after his wife was killed by a drunk driver but was only sentenced to probation, Shockley’s lawyers did not learn of the book until after Shockley had already been convicted. When they eventually became aware of it, before Shockley’s sentencing, they failed to take advantage of the judge’s suggestion that they develop the facts to support their motion for a new trial – for example, by questioning the foreman about whether he had discussed the novel with other members of the jury, which he had.

After his efforts to obtain relief in the state courts were unsuccessful, Shockley went to federal court. The district court denied his petition for post-conviction relief, as well as permission to appeal.

Shockley then went to the U.S. Court of Appeals for the 8th Circuit, which – by a vote of 2-1 – also turned down his request for permission to appeal. The full court of appeals then denied his request to reconsider that decision, with a second judge joining the dissenting judge in voting for rehearing.

Shockley came to the Supreme Court in November, asking the justices to weigh in. He argued that the disagreement among judges about whether to hear his appeal indicated that, as federal law requires, reasonable judges could disagree on how his claim should be resolved. Moreover, he stressed, four other courts of appeals would have granted his request to appeal in light of that disagreement.

Missouri urged the justices to stay out of the dispute. It argued that both the Supreme Court and Congress had “left it to the circuit courts of appeal to decide how they handle applications for certificates of appealability.” Any inconsistencies on how the courts of appeals treat such applications are, therefore, it emphasized, “merely differences of administration on a procedural matter” and not deserving of the justices’ attention.

After considering Shockley’s petition for review at five conferences, the justices denied review.

Sotomayor would have granted review and, she suggested, allowed Shockley’s appeal to go forward. In her dissent, Sotomayor contended that there “are good reasons to think that Congress conditioned the right to an appeal on a single judge’s vote.” She observed that, under federal law, most cases “must be resolved by ‘a majority of the number of judges authorized to constitute a court or panel thereof’ or by the appropriate ‘court of appeals.’” Congress could have done the same for post-conviction cases, she noted, but instead indicated only that “’a circuit justice or judge’ can grant permission to appeal.”

Allowing an appeal to move forward as long as at least one judge votes to grant permission to appeal “also promotes efficiency,” Sotomayor contended. “Because appeals should proceed so long as they present a debatable issue,” she wrote, “the question whether to grant” permission “should not be a contentious one.”

Addressing the substance of Shockley’s appeal, Sotomayor concluded that it “is difficult to see how an attorney’s decision not to call witnesses in support of a credible mistrial motion, when invited to so by the presiding judge in a capital murder trial, could fail to constitute ineffective assistance of counsel.” The court of appeals, she wrote, was “plainly” wrong when it ruled that the district court’s contrary decision was “not even debatable.”

The court once again did not act on several high-profile petitions for review that have been pending for several weeks, including challenges to Rhode Island’s ban on large-capacity magazines and Maryland’s ban on military-style assault rifles, as well as a challenge to the transfer of federal land in Arizona that the San Carlos Apache Tribe regards as a sacred site to a mining company.

The justices will meet again for a private conference on Friday, April 4. Orders from that conference are expected at 9:30 a.m. on Monday, April 7.

This post is also published on SCOTUSblog.