This Supreme Court term has been quite notable for its GVR's.* There has been a bunch of them in habeas cases. This has resulted in some highly critical (and, I admit, clever) dissents from Scalia.
*GVR= grant, vacate, remand
The latest edition to this continuing drama happened last week in Wellons v. Hall (opinion here). The GVR was granted on the basis of Cone v. Bell, a case from last term in which the Court concluded that a state court decision that rejected a claim because it had been previously decided did not represent an independent and adequate state law ground to bar habeas review.
But it wasn't a pure GVR on that ground. The Circuit Court did not just reject the claim based on the procedural bar. The court went on to address the merits of the claim in the alternative.
That was not good enough for the Supreme Court. "The disturbing facts of this case raise serious questions concerning the conduct of the trial, and this petition raises a serious question about whether the Court of Appeals carefully reviewed those facts before addressing petitioner’s constitutional claims."
What were the disturbing facts? Most notably, the jury sending a chocolate cake in the same of a penis to the judge and a chocolate cake in the shape of a woman's breasts to the lead court officer. As you would expect, that part of the case got the media's attention. I have seen a lot of bad puns about it.
The Court concluded that, even though the lower court did address the merits, it actually didn't really address them since it had initially found a procedural bar. Thus, the court had "no need to address whether petitioner was otherwise entitled to an evidentiary hearing" and it only gave the merits a "perfunctory consideration." The Court went out of its way to point out that the Eleventh Circuit only discussed whether Wellons was entitled to relief on the petition, rather than whether he should have had an evidentiary hearing. The Court also stated that, even if the Eleventh Circuit had addressed the evidentiary hearing claim, it could not be sure that the lower court's analysis was independent of the Cone error.
Alito and Scalia dissented in two separate opinions. Alito argued that the lower court had adequately addressed the merits.
And Scalia criticized the way that the Court used the GVR saying that it had "outdo[ne] itself." He said that the Court has altered the GVR power to send back for a "redo." He complained that the GVR's of late had resulted in a "systematic degradation" of that power, resulting in a bunch of new uses:
the GVR so the government can try a less extravagant argument on remand . . ., the GVR in light of nothing . . ., and the newly-minted Summary Remand for More Extensive Opinion than Petitioner Requested(SRMEOPR) . . . . Today the Court adds another beast to our growing menagerie: the SRIE, Summary Remandfor Inconsequential Error—or, as the Court would have it, the SRTAEH, Summary Remand to Think About an Evi-dentiary Hearing.
It's a pretty entertaining paragraph. Is Scalia making too much of this? Yep. But who cares? It's fun to watch him inconsequentially rip on the Court in this way. I hope that it continues.
But I do think that there could be more to Wellons. From a practical perspective, there is a chance that Wellons could have an impact. There are countless times where an appellate court affirms a lower court decision on the ground that the lower court had addressed the merits in the alternative after rejecting a claim on a procedural ground. This case provides ammunition for litigants to say that an affirmance is insufficient where the lower court got the procedural ground incorrect and a remand is the more appropriate remedy. I know that I am sure to use it for that reason.
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