Shockley v. Vandergriff

Cite as: 604 U. S. ____ (2025) 1

S
OTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
LANCE SHOCKLEY v. DAVID VANDERGRIFF,
WARDEN
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No. 24–517. Decided March 31, 2025
The petition for a writ of certiorari is denied.
J
USTICE SOTOMAYOR, with whom JUSTICE JACKSON joins,
dissenting from the denial of certiorari.
A prisoner who seeks to appeal the denial of his petition
for habeas corpus may do so only if “a circuit justice or
judge issues a certificate of appealability.” 28 U. S. C.
§2253(c)(1). Several Circuits have interpreted that require-
ment to mean that a certificate must issue so long as “one
of the judges to whom the application was referred” votes to
grant it. Thomas v. United States, 328 F. 3d 305, 309 (CA7
2003); Rule 22.3 (CA3 2011) (similar language); Rule
22(a)(3) (CA4 2023) (same, explaining that “the authority
for a single judge to issue a certificate derives from §2253”);
Gen. Order 6.3(b) (CA9 2024) (“Pursuant to 28 U. S. C.
§2253(c), a request to grant or expand a certificate of ap-
pealability may be granted by any one Judge on the as-
signed panel”). In some courts, however, a panel majority
can deny a certificate even if “a circuit . . . judge” on the
panel votes to issue one. See, e.g., Williams v. Kelley, 858
F. 3d 464 (CA8 2017); Crutsinger v. Davis, 929 F. 3d
259(CA5 2019); United States v. Ellis, 779 Fed. Appx. 570
(CA10 2019). That latter practice deprived petitioner Lance
Shockley of an appeal in this case.
I would have granted certiorari to resolve the split and
decide whether the Courts of Appeal can dismiss an appeal
after a judge votes to grant a certificate.

2 SHOCKLEY v. VANDERGRIFF

S
OTOMAYOR, J., dissenting
I
After the District Court denied Lance Shockley’s habeas
petition, Shockley sought the Eighth Circuit’s permission to
appeal. Judge Kelly voted to grant a certificate as to one of
Shockley’s claims, but two other judges voted to deny. App.
to Pet. for Cert. 2a. In the Third, Fourth, Seventh, and
Ninth Circuits, that vote would have meant Shockley’s ap-
peal could proceed. Yet the Eighth Circuit dismissed the
appeal, even over the dissent of two judges who would have
granted rehearing en banc. See id., at 350a.
Allowing a panel of judges to deny a certificate of appeal-
ability over a dissenting vote has significant consequences.
At the certificate of appealability stage, briefing is confined
to less than half the word limit of an ordinary appeal, and
oral argument is presumptively denied. See Fed. Rules
App. Proc. 27(d)(2) (5,200 word limit for motions), 27(e)
(motions decided without oral argument unless ordered oth-
erwise), and 28.1(e)(2) (13,000 word limit for principal brief
on appeal). In that limited space, applicants must focus on
establishing that their claim meets the plausibility stand-
ard for granting a certificate, rather than showing the claim
is ultimately meritorious. Moreover, the grant of a certifi-
cate of appealability often marks the appointment of coun-
sel, so its denial generally deprives indigent litigants of the
opportunity for a counseled appeal. See, e.g., Internal Op-
erating Proc. 10.3.2 (CA3 2018) (“When a certificate of ap-
pealability is granted on behalf of an indigent appellant . . .
the clerk appoints counsel for the appellant unless the court
instructs otherwise”); Rule 22(a) (CA4) (discussing appoint-
ment of counsel after grant of certificate).
There are good reasons to think that Congress condi-
tioned the right to an appeal on a single judge’s vote. Con-
gress normally provides that cases must be resolved by “[a]
majority of the number of judges authorized to constitute a
court or panel thereof,” 28 U. S. C. §46(d), or by the appro-
priate “court of appeals,” see e.g., §§2349(b), 2342. It could

Cite as: 604 U. S. ____ (2025) 3

S
OTOMAYOR, J., dissenting
have used the same language in the habeas statute, permit-
ting an appeal where the court of appeals grants a certifi-
cate. Instead, Congress specified that “a circuit justice or
judge” can grant permission to appeal. §2253(c)(1); see also
Miller-El v. Cockrell, 537 U. S. 322, 335–336 (2003) (“Before
an appeal may be entertained, a prisoner who was denied
habeas relief in the district court must first seek and obtain
a COA from a circuit justice or judge”); id., at 349 (S
CALIA,
J. , concurring) (noting that a “circuit justice or judge” deter-
mines whether to grant a certificate of appealability); Buck
v. Davis, 580 U. S. 100, 115 (2017) (same). Because “our
cases begin (and often end) with the presumption that Con-
gress is careful in all its word choices,” Pulsifer v. United
States, 601 U. S. 124, 172 (2024) (G
ORSUCH, J., dissenting),
“[w]e usually ‘presume differences in language like this con-
vey differences in meaning.’
” Wisconsin Central Ltd. v.
United States, 585 U. S. 274, 279 (2018) (quoting Henson v.
Santander Consumer USA Inc., 582 U. S. 79, 86 (2017)).
Allowing an appeal whenever one judge votes to grant a
certificate also reflects the substantive standard that gov-
erns habeas appeals. After all, a certificate must issue so
long as “reasonable jurists could debate whether . . . the pe-
tition should have been resolved in a different manner or
that the issues presented were ‘
“adequate to deserve en-
couragement to proceed further.”
’ ” Slack v. McDaniel, 529
U. S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U. S.
880, 893, and n. 4 (1983)). When one or more jurists be-
lieves a claim has sufficient merit to proceed, that itself
“might be thought to indicate that reasonable minds could
differ . . . on the resolution” of the relevant claim. Johnson
v. Vandergriff, 600 U. S. ___, ___ (2023) (S
OTOMAYOR, J.,
dissenting from denial of application for stay and denial of
certiorari) (slip op., at 5) (internal quotation marks omit-
ted). Congress may well have conditioned the right to an
appeal on the vote of a “circuit justice or judge” for that rea-
son. 28 U. S. C. §2253(c)(1).

4 SHOCKLEY v. VANDERGRIFF

S
OTOMAYOR, J., dissenting
Proceeding to the merits with a full panel after a judge
votes to grant a certificate also promotes efficiency. Be-
cause appeals should proceed so long as they present a de-
batable issue, the question whether to grant a certificate
should not be a contentious one. See Buck, 580 U. S., at
122; Miller-El, 537 U. S., at 336; Slack, 529 U. S., at 484.
Indeed, a petitioner need not even prove “that some jurists
would grant the petition for habeas corpus.” Miller-El, 537
U. S., at 338. When a petition for certificate of appealability
is sufficiently weighty to engender split opinions and even
en banc litigation, as it did here, judicial resources are bet-
ter spent simply considering the merits in the regular
course. In order to maintain the “public perception of fair-
ness and integrity in the justice system,” moreover, courts
must “exhibit regard for fundamental rights and respect for
prisoners ‘as people.’
” Rosales-Mireles v. United States, 585
U. S. 129, 139–140 (2018) (quoting T. Tyler, Why People
Obey the Law 164 (2006)). That requires considering de-
batable constitutional claims on their merits, rather than
dismissing them out of hand.

II
This case exemplifies the problems with the Eighth Cir-
cuit’s contrary approach. Consider briefly the basis for
Shockley’s claim. A Missouri jury convicted Shockley for
the capital murder of a police officer. The prosecution ar-
gued Shockley committed the murder because the officer
had been investigating Shockley’s role in a drunken-driving
incident that resulted in the death of Shockley’s sister-in-
law’s fiancé. During voir dire, a venire member volunteered
that he had authored and self-published a book. Neither
the court nor Shockley’s counsel followed up on that com-
ment, and the venire member became the jury’s foreperson.
Shockley’s lawyer did not discover until after the jury re-
turned a guilty verdict why the foreperson had thought his
authorship relevant. As it turned out, the book in question

Cite as: 604 U. S. ____ (2025) 5

S
OTOMAYOR, J., dissenting
was a “fictionalized autobiography” describing the “brutal
and graphic revenge murder of a defendant who killed the
protagonist’s wife in a drunken-driving accident.” Shockley
v. State, 579 S. W. 3d 881, 893 (Mo. 2019). The book’s pro-
tagonist (a “fictionalized” version of the juror himself
)
“viewed the defendant as escaping justice in the court sys-
tem because the defendant received only probation follow-
ing his conviction.” Ibid. During the guilt-phase of Shock-
ley’s trial, the foreperson brought this book to deliberations
and handed it out to several jurors.
When, after the guilty verdict, Shockley moved for a mis-
trial, the trial court offered counsel the opportunity to take
testimony from the foreperson and from other jurors. See
State v. Shockley, 410 S. W. 3d 179, 201 (Mo. 2013) (con-
cluding, on direct appeal, that the court “offered to allow
jurors to be questioned or subpoenaed” for the mistrial
hearing). Inexplicably, Shockley’s lawyer “[n]ot only did . . .
not accept this opportunity [but] affirmatively declined to
call any witnesses.” Ibid. As a result, the trial court did
not hear evidence regarding the foreperson’s alleged bias
and misconduct or its effect on other jurors, ibid., some of
whom later indicated that they had looked through the
book. Accordingly, while the trial court removed the fore-
person for the sentencing phase, there was no mistrial and
the jury’s guilt-phase verdict stood. The jury thereafter
deadlocked on Shockley’s sentence, and the court imposed
a sentence of death. The Missouri Supreme Court affirmed,
explaining that Shockley could not “claim . . . the trial court
committed plain error in failing to hold . . . a hearing and
itself subpoena jurors as witnesses over defense counsel’s
statement that he did not want such witnesses.” Ibid.
When Shockley later created a postconviction record es-
tablishing the nature of the foreperson’s book and his con-
duct during deliberations, the Missouri Supreme Court
held that counsel had not been ineffective. 579 S. W. 3d, at
897–898. Judge Stith dissented, emphasizing that counsel

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S
OTOMAYOR, J., dissenting
had proffered no “valid strategic reason” for refusing to call
witnesses at the mistrial hearing. Id., at 921.
It is difficult to see how an attorney’s decision not to call
witnesses in support of a credible mistrial motion, when in-
vited to do so by the presiding judge in a capital murder
trial, could fail to constitute ineffective assistance of coun-
sel under Strickland v. Washington, 466 U. S. 668 (1984).
More importantly, reasonable jurists could obviously de-
bate the merits of Shockley’s claim, as they have done at
the Missouri Supreme Court, the Eighth Circuit, and now
this Court as well. The Court of Appeals plainly erred
when, over multiple dissents, it treated as not even debata-
ble the District Court’s denial of relief on Shockley’s ineffec-
tive-assistance claim. Had the Court instead followed the
approach taken in the Third, Fourth, Seventh, and Ninth
Circuits, that error would have been avoided.
* * *
This case raises an entrenched Circuit split over an im-
portant question of statutory interpretation: Can a certifi-
cate of appealability be denied notwithstanding a circuit
judge’s vote to grant it? Unfortunately, the Court leaves
the issue for another day. The Courts of Appeal, however,
remain free to reconsider their operating rules and align
them with the text and purpose of §2253.