Burns v. Mays

1 Cite as: 598 U. S. ____ (2023)
S
OTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
KEVIN B. BURNS v. TONY MAYS, WARDEN
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 22–5891. Decided April 24, 2023
The petition for a writ of certiorari is denied.
J
USTICE SOTOMAYOR, with whom JUSTICE KAGAN and
J
USTICE JACKSON join, dissenting from the denial of certio-
rari.
Petitioner Kevin Burns, a defendant sentenced to death
for felony murder, brought a 28 U. S. C. §2254 petition
claiming inadequate assistance of counsel at the penalty
phase of his trial. Burns asserts that counsel failed to pre-
sent mitigating evidence tending to show that he did not
shoot either of the two victims killed during a robbery in
which he participated. Such evidence does not bear on
Burns’ guilt, since his participation in the underlying rob-
bery suffices to render him guilty of felony murder. Evi-
dence that Burns did not pull the trigger, however, was
plainly relevant to the jury’s determination whether to sen-
tence him to death. The Sixth Circuit avoided this obvious
conclusion only by mischaracterizing Burns’ claim as being
about counsel’s failure to introduce residual doubt evidence
(i.e., evidence that Burns was not, in fact, guilty of felony
murder). From there, the Sixth Circuit concluded that the
claim must fail because this Court has never established a
right to introduce residual doubt evidence at sentencing.
Burns argues, and the State does not contest, that the
Sixth Circuit’s analysis turned on two erroneous legal as-
sumptions and clearly conflicts with several decisions of
this Court. Burns asks this Court to take summary action
to correct these fundamental legal errors so that his claim
may be fairly considered before the State executes him. The

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OTOMAYOR, J., dissenting
Court, however, declines to intervene. I would summarily
vacate the error-laden (and precedential) decision below
and remand for further consideration of Burns’ claim. I re-
spectfully dissent from the Court’s failure to do so.
When Burns was 22 years old, he was part of a group of
six young men that confronted and robbed another group of
four young men sitting in a car. During the conflict, shots
were fired into the car, killing two and severely injuring a
third. No definitive narrative emerged regarding who had
shot the victims. Prosecutors eventually charged three of
the six men, including Burns, with premeditated murder
and felony murder. In separate trials, juries convicted
Burns’ codefendants of felony murder only and sentenced
both to life in prison. Burns’ trial followed.
The jury acquitted Burns of premeditated murder but
convicted him of two counts of felony murder, one for each
of the men killed. To convict Burns of felony murder, the
jury had to find only that he participated in the robbery; the
jury did not need to decide who shot the victims. See Tenn.
Code Ann. §§39–11–402(2), 39–13–202(a)(2) (1991). Be-
cause his felony-murder convictions made him eligible for a
death sentence, §39–13–202(b), however, the jury had to de-
cide at the penalty phase of trial whether to sentence Burns
to death or life in prison.
At the penalty phase, capital defendants have a right to
present any relevant mitigating evidence, including evi-
dence regarding the “‘circumstances of the offense.’” Ed-
dings v. Oklahoma, 455 U. S. 104, 110 (1982) (quoting Lock-
ett v. Ohio, 438 U. S. 586, 604 (1978) (plurality opinion)).
Such evidence may be particularly important for a defend-
ant facing death for felony murder, because a jury’s penalty-
phase assessment of culpability will often turn on the de-
fendant’s particular role and mental state during the of-
fense. See Tison v. Arizona, 481 U. S. 137, 156–158 (1987).
Here, the State argued, based on testimony from two eye-
witnesses, that Burns had shot Damond Dawson, one of the

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OTOMAYOR, J., dissenting
two men killed. While the jury did not convict Burns of pre-
meditated murder, this evidence was doubtless salient at
the penalty phase. For it is self-evident that concerns that
Burns killed someone would weigh heavily on the jurors’
evaluation of what punishment was warranted. This is es-
pecially obvious here, as the only evidence in aggravation
that the State introduced was related to the two deaths.
Yet penalty-phase counsel did nothing to challenge the
State’s narrative on this life-or-death question. This failure
was particularly egregious, as Burns, in state postconvic-
tion proceedings, demonstrated that counsel could have
done so by offering powerful impeachment evidence of the
two eyewitnesses and introducing evidence that Burns did
not shoot Dawson. One of the eyewitnesses was the person
who was shot, but survived. He had earlier testified at the
trial of one of the codefendants that it was the codefendant
who shot both him and Dawson, saying nothing about
Burns. When he instead identified Burns as the shooter at
Burns’ trial, counsel did not impeach him with his prior tes-
timony, despite being aware of it. The other eyewitness, a
neighbor, was prompted by defense counsel’s cross-exami-
nation to make a courtroom identification of Burns based
on his appearance and the Jheri curl hairstyle he had at the
time of trial. Defense counsel could have, but did not, call
witnesses to testify to a critical fact: While some of the six
men had Jheri curls at the time of the crime, Burns, who
had very short hair then, did not. Nor did counsel present
testimony that Burns looked similar to (and had the same
first name as) another member of the group of six, who was
actually the one to instigate the conflict, with a key differ-
ence being that, unlike Burns, the instigator had a Jheri
curl at the time of the crime. In fact, counsel failed to ob-
serve that police statements taken from members of the six
indicated that it was this other man, and not Burns, who
had initially approached the vehicle.
In case there was any doubt about the role the eyewitness

4 BURNS v. MAYS
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OTOMAYOR, J., dissenting
testimony played, the jury’s decision should put it to rest.
The jury sentenced Burns to death on the count connected
to Dawson. It sentenced him to life in prison for the other
count related to the victim he was not alleged to have shot.
The Tennessee Court of Criminal Appeals (TCCA) affirmed
the convictions and death sentence on appeal.
In his state postconviction petition, Burns asserted that
his penalty-phase counsel was ineffective for the reasons
above. In just one paragraph, the TCCA rejected the claim
for lack of prejudice, concluding that Burns “cannot estab-
lish that his sentence would have been different.” App. to
Pet. for Cert. 197. The court reasoned there could be no
prejudice because, even if Burns did not shoot Dawson, the
record supported an alternative basis for the State’s alleged
aggravating factor “of creating a great risk of death to two
or more persons.” Ibid. That reasoning completely over-
looks, however, that Burns had a right to introduce mitigat-
ing factors. Evidence that he did not shoot Dawson would
have been vital in this regard.
Burns then raised his claim in a federal §2254 petition.
Applying the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), the District Court denied the claim
after determining that the TCCA’s prejudice determination
was entitled to deference. Id., at 114. The District Court,
recognizing that reasonable jurists could disagree on this
point, granted a certificate of appealability. Id., at 154.
The Sixth Circuit affirmed. 31 F. 4th 497 (2022). Unlike
the District Court, the Sixth Circuit did not rely on the
TCCA’s prejudice decision. Instead, the Sixth Circuit held
that Burns’ claim failed because he could not show that pen-
alty-phase counsel acted deficiently in the first place.
The Sixth Circuit’s deficiency analysis rested on two fun-
damental errors of law. The first occurred when the Sixth
Circuit sua sponte recharacterized Burns’ claim as being
about nothing more than “‘residual doubt’” evidence. Id.,
at 503 (quoting Oregon v. Guzek, 546 U. S. 517, 525 (2006)).

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OTOMAYOR, J., dissenting
That term refers to evidence that is “introduce[d] at sen-
tencing” with the purpose of “cast[ing] ‘residual doubt’ on
[the defendant’s] guilt of the basic crime of conviction.” Id.,
at 525. The second occurred when the Sixth Circuit con-
cluded that Burns’ claim, so understood, “necessarily fails”
because this Court has not established a “right to present
residual doubt evidence at sentencing.” 31 F. 4th, at 503.
The error in the Sixth Circuit’s decision leaps off the
page. Evidence that Burns did not shoot the victim is not,
of course, mere residual doubt evidence. Because Burns
was convicted of felony murder, the jury did not have to find
that he shot anyone in order to convict him. Thus, evidence
that he was not the shooter goes to the circumstances of the
felony murder and his level of culpability, rather than guilt.
In other words, such evidence concerns “how, not whether,
[Burns] committed the crime,” a typical focus of sentencing.
Guzek, 546 U. S., at 524. This glaring mistake, confusing
evidence about the circumstances of the offense with resid-
ual doubt evidence, deprived Burns of his last chance to de-
fend his constitutional right to introduce mitigation evi-
dence that could have spared his life. See Eddings, 455
U. S., at 110.
Further, even holding fixed the Sixth Circuit’s erroneous
“residual doubt” characterization, the decision below rests
on yet another fundamental error. The Sixth Circuit rea-
soned that because this Court has not recognized a right to
introduce residual doubt evidence at the penalty phase, the
failure to do so could not be deficient performance under
Strickland v. Washington, 466 U. S. 668 (1984). This rea-
soning assumes, incorrectly, that only failures to advance
or protect federally recognized rights can be deficient. Be-
cause deficiency for purposes of Strickland is measured by
“an objective standard of reasonableness,” id., at 688, fed-
eral ineffective-assistance-of-counsel claims can also be
based on failures under state law. See, e.g., Hinton v. Ala-

6 BURNS v. MAYS
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OTOMAYOR, J., dissenting
bama, 571 U. S. 263, 275 (2014) (per curiam) (counsel’s fail-
ure to “understand the resources that state law made avail-
able to him” was deficient); Kimmelman v. Morrison, 477
U. S. 365, 385 (1986) (counsel was deficient for failing to re-
quest discovery permitted under state law).
Because the Sixth Circuit overlooked this fact, it never
considered whether Tennessee law might guarantee a right
to introduce residual doubt evidence at the penalty phase.
This is a critical omission because, as Burns made the Sixth
Circuit aware, Tennessee allows for introduction of residual
doubt evidence at sentencing and such a right was recog-
nized at the time of his trial. See, e.g., State v. Teague, 897
S. W. 2d 248, 256 (1995) (“Evidence otherwise admissible
under the pleadings and applicable rules of evidence, is not
rendered inadmissible because it may show that the defend-
ant did not kill the victim, so long as it is probative on the
issue of the defendant’s punishment”).
In his petition for certiorari, Burns asks this Court for
summary action to correct the serious legal errors below.
The State, tellingly, does not defend the indefensible. In-
stead, essentially conceding that the Sixth Circuit erred,
the State tries to shift attention away from the actual rul-
ing on review by arguing that any action would be “futile”
because, on remand, Burns “would not be able to overcome
the heavy deference that must be paid to the state court’s
prejudice findings.” Brief in Opposition 2.
Burns argued before the Sixth Circuit, however, that the
TCCA itself committed two clear errors of law in its preju-
dice analysis, such that no AEDPA deference is owed under
§2254(d)(1). First, Burns argued that because the TCCA
considered only whether evidence that he did not shoot
Dawson would have impacted the jury’s finding of the stat-
utory aggravating factor, without considering how it would
have impacted the jury’s assessment of mitigation, its deci-
sion is contrary to clearly established law, which also re-
quires asking whether “the available mitigating evidence,

7 Cite as: 598 U. S. ____ (2023)
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OTOMAYOR, J., dissenting
taken as a whole, ‘might well have influenced the jury’s ap-
praisal’ of [his] moral culpability.” Wiggins v. Smith, 539
U. S. 510, 538 (2003) (emphasis added). Second, Burns ar-
gued that the TCCA applied an overly demanding prejudice
standard, ignoring that prejudice requires only “‘a reason-
able probability that, but for counsel’s unprofessional er-
rors, the result of the proceeding would have been differ-
ent.’” Rompilla v. Beard, 545 U. S. 374, 390 (2005); Cf.
Vasquez v. Bradshaw, 345 Fed. Appx. 104, 112 (CA6 2009)
(no AEDPA deference owed because the state court “actu-
ally describe[d] and appl[ied] a different [prejudice] stand-
ard”). The Sixth Circuit never considered these arguments
because of its erroneous deficiency analysis.
The Court’s decision to deny certiorari means that Burns
now faces execution despite a very robust possibility that
he did not shoot Dawson but that the jurors, acting on in-
complete information, sentenced him to death because they
thought he had. The Court’s failure to act is disheartening
because this case reflects the kind of situation where the
Court has previously found summary action appropriate:
The relevant facts are not in dispute, and the decision below
clearly conflicts with settled law of this Court on an im-
portant matter. The need for action is great because Burns
faces the ultimate and irrevocable penalty of death. With
so much at stake, I would vacate the decision below and re-
mand. Because the Court refuses to do so, the indefensible
decision below will be the last for Burns. I respectfully dis-
sent.