Thomas v. Payne

1 Cite as: 595 U. S. ____ (2021)
Statement of S
OTOMAYOR, J.
SUPREME COURT OF THE UNITED STATES
MICKEY THOMAS v. DEXTER PAYNE, DIRECTOR,
ARKANSAS DEPARTMENT OF CORRECTION
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No. 20–7480. Decided October 4, 2021
The petition for a writ of certiorari is denied.
Statement of J
USTICE SOTOMAYOR respecting the denial
of certiorari.
A jury convicted petitioner Mickey Thomas of capital
murder and sentenced him to death. After pursuing relief
in state court, Thomas filed a timely federal habeas peti-
tion. Thomas argued, in part, that he received ineffective
assistance of counsel because his trial counsel failed to
investigate and present mitigating evidence during the
penalty phase of his trial. The District Court agreed. Yet
without giving Thomas an opportunity to respond, the
Court of Appeals reversed on the basis of a procedural-
default argument that the State never raised on appeal.
I do not dissent from the denial of certiorari because
Thomas’ claim does not satisfy this Court’s traditional cri-
teria for granting certiorari. See this Court’s Rule 10. As
Judge Colloton rightly observed in his dissent from denial
of rehearing en banc, however, the Court of Appeals’ deci-
sion to reverse based on an argument that the State failed
to make on appeal, and that Thomas never had the oppor-
tunity to address, deprived Thomas of “fair notice that the
issue was ‘in play.’ ” 977 F. 3d 697 (CA8 2020); see Day v.
McDonough, 547 U. S. 198, 210 (2006) (“Of course, before
acting on its own initiative, a court must accord the parties
fair notice and an opportunity to present their positions”).
This lack of notice left Thomas without a meaningful oppor-
tunity to dispute the grounds on which the court reversed

2 THOMAS v. PAYNE
Statement of S
OTOMAYOR, J.
the District Court’s decision to grant him habeas relief.
Where, as here, a State declines to argue procedural de-
fault on appeal, a court of appeals should at a minimum af-
ford a capital petitioner the opportunity to respond and be
heard before adopting an argument on the State’s behalf.
The denial of certiorari should not be understood to endorse
the Court of Appeals’ failure to do so here.