Halprin v. Davis

1 Cite as: 589 U. S. ____ (2020)
Statement of S
OTOMAYOR, J.
SUPREME COURT OF THE UNITED STATES
RANDY ETHAN HALPRIN v. LORIE DAVIS,
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. 19–6156. Decided April 6, 2020
The petition for a writ of certiorari is denied.
Statement of J
USTICE SOTOMAYOR respecting the denial
of certiorari.
The facts underlying this petition are deeply disturbing.
I write to explain why I nevertheless do not dissent from
the denial of certiorari.
In December 2000, petitioner Randy Ethan Halprin and
six others escaped from a Texas prison and robbed a
sporting-goods store. During the robbery, Officer Aubrey
Hawkins responded to a distress call and was fatally shot.
The State of Texas tried Halprin and the other escapees
separately for their roles in Officer Hawkins’ death. Pre-
siding over most of those trials, including Halprin’s, was
Judge Vickers Cunningham.
In 2003, a jury found Halprin guilty of capital murder and
recommended the death penalty, and then-Judge Cunning-
ham announced a death sentence. For the next decade,
Halprin unsuccessfully sought appellate and collateral re-
lief in the state courts. In 2014, he petitioned for a writ of
habeas corpus under 28 U. S. C. §2254, to no avail.
Years after the trial, Cunningham—no longer a judge—
ran for a position as a county commissioner. In May 2018,
a news outlet published that Cunningham had created a
living trust for his children that would have withheld pay-
ments had they married nonwhite non-Christians.
(Halprin is Jewish, a fact that featured prominently at his

2 HALPRIN v. DAVIS
Statement of S
OTOMAYOR, J.
trial.) A former campaign staffer of Cunningham’s also re-
layed to the news outlet that the former judge used the ac-
ronym “T.N.D.”—short for “Typical N*** Deals”—to refer
to criminal cases involving black defendants. Record
19–70016.1120.
These developments prompted Halprin’s counsel to inves-
tigate whether Cunningham had harbored bias against
Halprin. Witnesses recounted that, shortly after Halprin’s
trial, Cunningham had referred to Halprin with derogatory
terms like “f***n’ Jew”—and that the former judge had also
referred to Halprin’s accomplices using similar slurs. Id.,
at 19–70016.1064. Halprin’s counsel further discovered
that Cunningham had told campaign staffers that he
sought public office to “save” his city from “‘n***s,’ ‘wet-
backs,’ Jews, and dirty Catholics.” Id., at 19–70016.1235.
On May 17, 2019, presented with this newly discovered
evidence, Halprin filed another §2254 petition in Federal
District Court. He asserted that Cunningham’s bias consti-
tuted structural error depriving Halprin of his constitu-
tional right to a fair trial. Halprin also requested that the
federal court stay the proceedings so that he could exhaust
his claim in state court, and then filed an application for
habeas relief in the Texas Court of Criminal Appeals. (That
court has since stayed Halprin’s execution to allow a trial
court to consider the claim of judicial bias.)
Meanwhile, the District Court transferred Halprin’s re-
cent §2254 petition to the Court of Appeals for the Fifth Cir-
cuit to determine whether it was an unauthorized “second
or successive” petition. See 28 U. S. C. §2244(b).* The Fifth
——————
* Section 2244(b)(2)(B) provides in pertinent part:
“A claim presented in a second or successive habeas corpus application
under section 2254 that was not presented in a prior application shall be
dismissed unless . . . (i) the factual predicate for the claim could not have
been discovered previously through the exercise of due diligence; and (ii)
the facts underlying the claim, if proven and viewed in light of the evi-
dence as a whole, would be sufficient to establish by clear and convincing

3 Cite as: 589 U. S. ____ (2020)
Statement of S
OTOMAYOR, J.
Circuit recognized that Halprin had cited evidence of “hor-
rible” “racism and bigotry” that, if true, would be “com-
pletely inappropriate for a judge.” In re Halprin, 788 Fed.
Appx. 941, 942, n. 2 (2019) (per curiam). Nevertheless, the
Court of Appeals held, Halprin’s filing was a second or suc-
cessive petition under federal law because, “even if ” Cun-
ningham’s prejudice were “unknown to Halprin at the
time,” the judicial-bias claim would have been “ripe” during
the jury trial. Id., at 943. The Fifth Circuit then concluded
that Halprin could not satisfy §2244(b)’s “‘strict’” require-
ments for authorizing a second or successive §2254 applica-
tion. Id., at 945. Granting Halprin’s argument that judicial
bias is “structural error” warranting an automatic retrial,
the Fifth Circuit still found that Halprin could not show “by
clear and convincing evidence that, absent such bias, no
reasonable factfinder would have found Halprin guilty of
the underlying offense.” Id., at 944–945.
In this Court, Halprin contests whether his recent federal
petition is “second or successive” at all. Drawing on Panetti
v. Quarterman, 551 U. S. 930 (2007), and Magwood v. Pat-
terson, 561 U. S. 320 (2010), Halprin contends that his fed-
eral habeas claim cannot count as “second or successive”
under §2244(b) because he never “‘had a full and fair oppor-
tunity to raise the claim in [his] prior application’” to the
Federal District Court. Pet. for Cert. 14. Halprin also urges
the Court to exercise its “traditional equitable authority” to
excuse defaulted claims that do not satisfy §2244(b)’s literal
text. Id., at 15 (internal quotation marks omitted).
Despite these potent arguments, the Court declines to
grant certiorari. I do not dissent for two reasons. First,
state-court proceedings are underway to address—and, if
appropriate, to remedy—Halprin’s assertion that insidious
racial and religious bias infected his trial. For its part, the
——————
evidence that, but for constitutional error, no reasonable factfinder
would have found the applicant guilty of the underlying offense.”

4 HALPRIN v. DAVIS
Statement of S
OTOMAYOR, J.
State represents that “Halprin has not been deprived of an
opportunity to bring his claim in state court” because the
Texas Court of Criminal Appeals recently “stayed his exe-
cution and remanded his judicial bias claim to the trial
court for review.” Brief in Opposition 21–22; see also id., at
28 (“[A]venues of relief remain, including state habeas pro-
ceedings”). Thus, were the Texas courts to agree with
Halprin on the merits of his judicial-bias claim, this petition
for a writ of certiorari about a federal procedural provision
would become moot.
Second, this Court’s denial “carries with it no implication
whatever regarding the Court’s views on the merits of ”
Halprin’s claims. Maryland v. Baltimore Radio Show, Inc.,
338 U. S. 912, 919 (1950) (Frankfurter, J., respecting denial
of certiorari). Though the Fifth Circuit has already inter-
preted §2244 to deny Halprin authorization to file a §2254
petition, this Court’s denial of certiorari does not prevent
Halprin from seeking direct review from a constitutional
ruling by the Texas courts. Nor does it preclude Halprin
from seeking an original writ of habeas corpus under this
Court’s Rule 20.
* * *
“[T]he Due Process Clause clearly requires a ‘fair trial in
a fair tribuna[l]’ before a judge with no actual bias against
the defendant.” Bracy v. Gramley, 520 U. S. 899, 904–905
(1997) (citation omitted). I trust that the Texas courts con-
sidering Halprin’s case are more than capable of guarding
this fundamental guarantee.