Johnson v. Missouri

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1 Cite as: 598 U. S. ____ (2022)
J
ACKSON, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 22A463
KEVIN JOHNSON v. MISSOURI
ON APPLICATION FOR STAY
[November 30, 2022]
The application for stay of execution of sentence of death
presented to J
USTICE KAVANAUGH and by him referred to
the Court is denied.
J
USTICE JACKSON, with whom JUSTICE SOTOMAYOR joins,
dissenting from denial of application for stay.
We denied Kevin Johnson’s application for an emergency
stay of his execution on November 29, 2022, and the State
of Missouri has carried out that penalty. Now, one day
later, I write to explain my vote to grant his stay request.
For the reasons that follow, in my view, there was a likeli-
hood that Johnson would have succeeded on the merits of
his federal due process claim, and it was clear that he would
(and obviously did) suffer irreparable harm absent a stay.
I also believe that the equities weighed in Johnson’s favor.
Missouri has created a system in which prosecutors may
assess the validity of a state prisoner’s final conviction, see
Mo. Rev. Stat. §547.031 (Cum. Supp. 2021), and having
done so, it was required to comply with due process when
applying that law in Johnson’s case. See District Attorney’s
Office for Third Judicial Dist. v. Osborne, 557 U. S. 52, 69
(2009); Hicks v. Oklahoma, 447 U. S. 343, 346 (1980); Wolff
v. McDonnell, 418 U. S. 539, 556–557 (1974). In rare cases,
a litigant can credibly claim that a State’s erroneous inter-
pretation of, or refusal to comply with, its own law can
amount to a federal due process violation. See Skinner v.

2 JOHNSON v. MISSOURI
J
ACKSON, J., dissenting
Switzer, 562 U. S. 521, 530 (2011); Bouie v. City of Colum-
bia, 378 U. S. 347, 356 (1964).
This is one of those rare cases. Missouri’s Revised Stat-
ute §547.031 provides a three-step process for reviewing the
integrity of a conviction. First, a prosecutor can file a mo-
tion to vacate if she “has information that a convicted per-
son . . . may have been erroneously convicted.” §547.031.1.
A prosecutor filed such a motion with respect to Johnson.
Second, “upon the filing of [such] a motion to vacate,” the
court “shall order a hearing and shall issue findings of fact
and conclusions of law on all issues presented.” §547.031.2.
No Missouri court here has disputed that this hearing is
mandatory or that it was not provided to Johnson. Third,
the court must grant the motion to vacate if “the court finds
there is clear and convincing evidence of . . . constitutional
error,” after “tak[ing] into consideration” all of the evidence
related to the case, including the “evidence presented at the
hearing on the motion.” §547.031.3.
The Missouri Supreme Court turned this straightforward
procedural statute on its head. While acknowledging that
there was no motion hearing in Johnson’s case, the court
assumed away that violation of the statute’s procedural re-
quirements and denied the motion to stay on the grounds
that there was insufficient evidence to support the motion
to vacate. It reasoned that “[e]ven assuming that it was
error for the circuit court to overrule the Special Prosecu-
tor’s motion to vacate Johnson’s conviction without the
hearing and express findings of fact and conclusions of law,”
Johnson was not entitled to a stay because the motion to
vacate fell “short of the showing required by section
547.031.3, i.e., that there be ‘clear and convincing evidence’
demonstrating a ‘constitutional error at the original trial
. . . that undermines the confidence in the judgment.’ ” Or-
der on Motions for Stay of Execution, No. SC89168 (Nov.
20, 2022), pp. 13–14 (Order).
The Missouri Supreme Court’s reading—which skipped

3 Cite as: 598 U. S. ____ (2022)
J
ACKSON, J., dissenting
over the mandatory second step of the State’s conviction-
review process and went straight to the third—flouted the
plain language of a statute that clearly contemplates that
the three required steps will proceed in order. See
§547.031.3 (requiring that the court’s findings and conclu-
sions about a properly filed motion to vacate be based, in
part, on “evidence presented at the hearing on the motion”).
What is more, the court’s determination that there was not
“clear and convincing” evidence to support the motion to va-
cate in the absence of a hearing in which there would have
been a chance to produce such evidence, as the statute re-
quires, transgressed core procedural due process principles.
See Gagnon v. Scarpelli, 411 U. S. 778, 786 (1973) (noting
that the “‘minimum requirements of due process’” include
an “‘opportunity to be heard in person and to present wit-
nesses and documentary evidence’”). Indeed, it is unclear
how the Missouri Supreme Court could have validly deter-
mined whether there was “clear and convincing evidence”
of a constitutional error when the mandatory hearing at
which evidence relevant to that determination would have
been presented did not occur.
In short, a State cannot provide a process for postconvic-
tion review (like that outlined in §547.031) and then arbi-
trarily refuse to follow the prescribed procedures. But that
appears to be what happened in this case, insofar as
§547.031 was properly invoked through the filing of a mo-
tion to vacate but the Missouri Supreme Court determined
that the reviewing court did not need to hold the mandatory
hearing that allows for the presentation of evidence related
to that motion, because, regardless, there was insufficient
evidence to sustain the motion. In my view, this reading of
§547.031 was so fundamentally flawed, and so at odds with
basic due process principles, that Johnson was likely to suc-
ceed in establishing that the procedures afforded in connec-
tion with the §547.031 motion amounted to a Fourteenth
Amendment violation.

4 JOHNSON v. MISSOURI
J
ACKSON, J., dissenting
As for irreparable harm, Johnson’s execution irrevocably
mooted our consideration of his due process claim, and Mis-
souri would have suffered no discernible harm if a stay had
issued, as a State has no legitimate interest in carrying out
an execution contrary to §547.031 or due process. Further-
more, Johnson had the better of the equities, since he dili-
gently pursued his claims, and the last-minute nature of his
motion for a stay was neither attributable to him nor due to
factors within his control.
It is also noteworthy that Johnson’s prior and unsuccess-
ful assertion of claims concerning selective prosecution and
Batson v. Kentucky, 476 U. S. 79 (1986), did not preclude
the invocation of §547.031 and Johnson’s corresponding fed-
eral due process claim, notwithstanding the Missouri Su-
preme Court’s contrary suggestion. See Order 11–12, 16,
19. If the required hearing had been held, someone might
have pointed out that §547.031 itself “permits a prosecuting
attorney to present all evidence relevant to such claims, re-
gardless of whether the defendant is procedurally defaulted
from raising such claims.” Id., at 8 (Breckenridge, J., dis-
senting). In any event, it appears that much of the evidence
that could have been presented at the nonexistent hearing
was new evidence relating to the trial prosecutor’s racially
biased practices and racially insensitive remarks. And now
that evidence will not be considered on the merits by any
court, much less the one that was supposed to base its con-
clusions about the validity of Johnson’s conviction on all
such evidence, per the statutory mandate.
For all of these reasons, I would have granted the stay.