jennings stephens director texas department criminal justice correctional institutions division argued october decided january petitioner jennings sought federal habeas relief based three theories ineffective assistance counsel punishment phase state capital murder trial district granted relief two wiggins theories counsel failed present evidence deprived background failed investigate evidence mental impairment see wiggins smith spisak theory counsel expressed resignation death sentence closing argument see smith spisak ordered texas release jennings unless within days state granted new sentencing hearing commuted death sentence state attacked wiggins theories appeal jennings defended three theories fifth circuit reversed grant habeas corpus two wiggins theories determined lacked jurisdiction spisak claim implicitly concluding raising argument required noted jennings neither filed timely notice appeal see fed rule app proc obtained certificate appealability required held jennings spisak theory defense judgment alternative grounds thus required take obtain certificate appealability argue appeal pp jennings appellee may urge spisak theory unless enlarge rights lessen state rights district judgment american railway express jennings rights judgment release retrial commutation within fixed time state option spisak claim accepted give state rights judgment retain jennings custody pending retrial commute sentence spisak claim accepted encumber state state contends district opinion entitled jennings retrial resentencing without challenged errors additional basis asserted jennings sought lessen state rights retrial thus requires view contrary ordinary behavior courts reduce opinions verdicts judgments precisely define parties rights liabilities prevailing party seeks enforce district judgment reasoning rogers hill thus potential claim entitled jennings new sentencing proceeding advanced consistent american railway pp helvering pfeiffer alexander cosden pipe line considerable tension american railway read state insists requiring jennings raise spisak claim even rights judgment remain undisturbed pfeiffer alexander involved disputes multiple discrete federal tax liabilities assertion additional tax liabilities defenses necessarily sought enlarge reduce rights internal revenue service commissioner contrast jennings whether prevailing single theory three sought indivisible relief new sentencing hearing thus pfeiffer alexander viewed contradicting inveterate american railway rule greenlaw pp question whether certificate appealability requirement applies need addressed clear provision embrace defense judgment alternative grounds pp fed appx reversed remanded scalia delivered opinion roberts ginsburg breyer sotomayor kagan joined thomas filed dissenting opinion kennedy alito joined opinion notice opinion subject formal revision publication preliminary print reports readers requested notify reporter decisions washington typographical formal errors order corrections may made preliminary print goes press robert mitchell jennings petitioner william stephens director texas partment criminal justice rectional institutions division writ certiorari appeals fifth circuit january justice scalia delivered opinion petitioner robert mitchell jennings sentenced death capital murder applied federal habeas corpus relief three theories ineffective assistance counsel prevailing two state appealed jennings defended writ three theories consider whether jennings permitted pursue theory district rejected without taking obtaining certificate appealability july petitioner robert mitchell jennings entered adult bookstore commit robbery officer elston howard unhappy coincidence establishment arrest store clerk undeterred jennings shot howard four times robbed store escaped howard died wounds howard merely recent victim jennings criminality state adjudicated jennings delinquent convicted aggravated robbery additional aggravated robberies murdered officer howard two months recent release prison jennings arrested tried convicted capital murder state sought death penalty punishment phase state introduced evidence jennings lengthy violent criminal history jennings attorney called prison chaplain testified jennings improvement jennings incorrigible jennings attorney acknowledged difficulty sentencing defense closing remarks commenting quarrel death sentence nonetheless pleading mercy client jury returned special verdict consistent texas law jennings acted deliberately murder present continuing threat society trial sentenced jennings death texas courts affirmed jennings conviction sentence denied postconviction relief jennings state tex crim ex parte jennings wl tex crim jennings applied federal habeas corpus relief asserting relevant three theories ineffective assistance counsel punishment phase trial jennings first claimed trial counsel ineffective failing present evidence disadvantaged background including conception product mother rape mother born grew poverty jennings offered mother sister witnesses jennings next argued trial counsel ineffective failure investigate present evidence jennings low intelligence organic brain damage trial attorney admitted affidavit failed review case files jennings prior convictions contained report suggesting jennings suffered mild mental retardation mild organic brain dysfunction report also suggested jennings malingered feigning mental illness order delay proceedings jennings argued trial counsel examined jennings prior case files investigated jennings mental health problems presented evidence mental impairment punishment phase finally jennings argued counsel constitutionally ineffective stating quarrel death sentence according jennings remark expressed resignation even propriety death sentence jennings cited decision wiggins smith establishing constitutional ineffectiveness counsel fails investigate introduce substantial mitigating evidence sentencing proceeding though cite decision smith spisak also argued counsel closing remarks amounted constitutional ineffectiveness parties referred alleged errors wiggins errors spisak error use terminology federal habeas granted jennings relief wiggins theories denied relief spisak theory jennings thaler wl sd apr ordered state shall release jennings custody unless within days state texas grants jennings new sentencing hearing resentences term imprisonment provided texas law time jennings crime state appealed attacking wiggins theories trial counsel failure present evidence deprived background failure investigate evidence mental impairment jennings argued fifth circuit district correctly found constitutional ineffectiveness wiggins theories argued trial counsel performed ineffectively spisak theory fifth circuit reversed grant habeas corpus two wiggins theories rendered judgment state fed appx determined lacked jurisdiction jennings spisak theory implicitly concluding raising argument required taking panel noted jennings failed file timely notice appeal see fed rule app proc failed obtain certificate appealability required section provides relevant nless circuit justice judge issues certificate appealability appeal may taken appeals final order habeas corpus proceeding granted certiorari decide whether jennings required file notice seek certificate appealability pursue spisak theory ii rules governing argumentation permissible appellees urging affirmance judgment familiar though case shows familiarity clarity go appellee take may urge support decree matter appearing record although argument may involve attack upon reasoning lower american railway express appellee may attack decree view either enlarging rights thereunder lessening rights adversary ibid since jennings denial spisak theory must determine whether urging theory sought enlarge rights lessen state district judgment granting habeas relief district opinion section labeled order commanded state release jennings custody unless within days state texas grants jennings new sentencing hearing resentences term imprisonment provided texas law time jennings crime wl district corresponding entry judgment contained similar language app intuitive answer question whether jennings new theory expands rights straightforward jennings rights judgment judgment provided release resentencing commutation within fixed time state option spisak theory give similarly state rights judgment retain jennings custody pending resentencing commute sentence spisak theory allow less state objects straightforward result conditional writ habeas corpus argues merely entitle successful petitioner retrial resentencing entitles retrial resentencing without challenged errors basis habeas relief imposes additional implied obligation state repeat error basis asserted successful petitioner seeks lessen state rights retrial therefore additional basis requires unusual position one contrary manner courts ordinarily behave courts reduce opinions verdicts judgments precisely define rights liabilities parties parties seeking enforce foreign decree attempt domesticate opinion domesticate judgment restatement third foreign relations law prevailing party seeks enforce district reasoning judgment rogers hill like federal appellate courts review lower courts opinions judgments chevron natural resources defense council rule contravenes structure makes opinion part judgment peculiar especially applied impose extrajudgment obligations sovereign state state argument might force case district explicitly imposes appellee asks appellate explicitly impose condition governing details retrial case us implications state position make clear orders atypical infer conditions silence construing every federal grant habeas corpus carrying attendant list unstated acts omissions state must perform perform substantially transform conditional habeas corpus relief opportunity replace invalid judgment valid one wilkinson dotson scalia concurring general grant supervisory authority state trial courts variation theme dissent posits apart implied terms habeas petitioner successfully defends judgment alternative ground expanded rights judgment changed judgment effects theory confuses party rights judgment right release resentencing commutation state option preclusive effects judgment might future proceedings makes nonsense american railway whenever appellee successfully defends judgment alternative ground changes otherwise judgment effects thereafter issue preclusion longer attaches ground trial decided case instead attaches alternative ground appellate affirmed judgment restatement second judgments thus making alteration effects touchstone necessity require every defense judgment alternative grounds course polar opposite rule established american railway habeas judgment jennings entitled state option either release resentencing commutation sentence potential claim entitled jennings new sentencing proceeding advanced urge support judgment within meaning american railway dissent state contend applying american railway fashion lead proliferation frivolous appellate defenses habeas cases problem solved congress think appropriate adhere usual law appeals think however danger exaggerated begin defenses qualify habeas applicant resentencing required take order raise rejected claim result new trial similarly even habeas applicant retrial claim conduct constitutionally beyond power state punish require even successful applicant defending judgment appeal confined alternative grounds present record may simply argue alternative basis regardless origin ibid moreover successful habeas applicants incentive defend habeas grants effectively objective furthered diverting appellate attention meritorious defense frivolous one dissent gives two examples habeas petitioners raised numerous ostensibly frivolous claims post prove nothing except dissent inability substantiate claim holding foster presentation frivolous alternative grounds affirmance examples involved habeas petitioners lost magistrate casting basis might justify writ talking habeas petitioners district notion often expected dilute defense basis victory dragging frivolous alternative grounds support thoroughly implausible indeed state jennings agree rare habeas petitioner successful district even called upon defend writ appeal finally doubt judicial time wasted rejection frivolous claims made defense judgment appeal already taken wasted rejection similar claims made state dissent require separate proceeding certificate appealability sure dissent points post certificate ruling made one judge rather three judge always required consider rule alternative grounds whereas entertaining government habeas appeal reach alternative grounds unless rejects ground relied lower mention fact appeal give back hand frivolous claims en passant whereas certificate process requires opening disposition separate proceeding end dissent tries evade american railway asserting habeas corpus unique post undoubtedly differences writs habeas corpus judgments notably habeas proceedings traditionally ignored claimpreclusive effect earlier adjudications reality things habeas different mean everything habeas different dissent must justify particular distinction urges abandonment usual american railway rule appropriate one state also advances termed corollary american railway rule citing helvering pfeiffer alexander cosden pipe line state insists necessary jennings enlarge rights district judgment also attack district ruling rejecting spisak theory even jennings rights judgment remain undisturbed view pfeiffer alexander advanced state put cases considerable tension holding american railway correct view pfeiffer alexander arose disputes commissioner internal revenue service taxpayers regarding multiple discrete federal tax liabilities pfeiffer supra alexander supra pfeiffer commissioner prevailed board tax appeals contention dividend taxable lost similar claim cash payment taxpayer sought second circuit review taxpayer prevailed dividend liability alexander taxpayer sought refund four tax liabilities taxpayer four commissioner appealed tenth circuit affirmed two refunds eliminated third reduced fourth pfeiffer supra alexander supra commissioner sought review cases refused entertain commissioner arguments regarding cash payment pfeiffer taxpayer regarding eliminated reduced claims alexander citing american railway state argues holdings expanded need beyond merely arguments enlarge rights judgment arguments revisit lower disposition issue judgment rests state argues rejected arguments necessarily expanded commissioner taxpayer rights points respective appellee rejected appeal new arguments might preserve amount assessed view pfeiffer alexander distorts american railway american railway merely require party fully successful new arguments certainly obtain greater relief provided requires party arguments presented view either enlarging rights thereunder lessening rights adversary pfeiffer alexander assertion additional tax liabilities defenses respectively necessarily sought enlarge reduce commissioner rights even combination issues affirmed reversed one possibility produced tax obligations pronounced judgment rejected state dissent theories implied terms conditional writs jennings spisak theory sought relief awarded wiggins theories new sentencing hearing whether prevailing single theory three jennings sought indivisible relief occurred neither pfeiffer alexander decline view cases contradicting inveterate rule american railway greenlaw finally state urges even jennings required take american railway pfeiffer alexander required obtain certificate appealability disagree section title provides appeal may taken appeals without certificate appealability requires substantial showing denial constitutional right unclear whether requirement applies habeas petitioner seeking case already appeals section performs important function state properly noticed appeal grant habeas relief appeals must hear case remaining gates guarded szabo walls easterbrook need decide question since clear applies appeal taken appeals whether embraces assuredly embrace defense judgment alternative grounds congress enacted entirely sharp distinction defending judgment appeal taking nothing statute justifies ignoring distinction dissent laments result frustrates aedpa purpose preventing frivolous appeals post indulge lament insisting defense appealed judgment alternative grounds appeal two statutory text issue addresses tak ing appeal making arguments defense judgment appeal taken extending certificate appealability requirement former latter beyond power courts jennings spisak theory neither enlarged rights diminished state rights district judgment required neither take obtain certificate appealability reverse judgment fifth circuit remand case consideration jennings spisak claim ordered thomas dissenting robert mitchell jennings petitioner william stephens director texas department criminal justice correctional institutions division writ certiorari appeals fifth circuit january justice thomas justice kennedy justice alito join dissenting holds today prisoner obtains order release unless state grants new sentencing proceeding may appellee raise alternative argument rejected resulted similar order majority mistakenly equates judgment granting order ordinary civil judgment respectfully dissent title amended antiterrorism effective death penalty act aedpa provides relevant part unless circuit justice judge issues certificate appealability appeal may taken appeals final order habeas corpus proceeding detention complained arises process issued state certificate appealability may issue applicant made substantial showing denial constitutional right certificate must indicate specific issue issues satisfy showing jennings obtain certificate appealability coa must consider whether raising took appeal within meaning aedpa agree majority habeas petitioner takes substance form appeals must obtain coa failure obtain coa jurisdictional bar review see gonzalez thaler slip critical question faces whether jennings fact ii majority correctly identifies rule apply determine whether party taken american railway express fails apply accordance history writ habeas corpus precedents concerning orders traditional principles governing equitable relief guides supports conclusion prisoner obtains order allowing state resentence new proceeding entitled state elects option new sentencing proceeding free specific constitutional violation identified district order embodies specific right appellee attempt add additional errors attempt modify expand rights judgment existence writ habeas corpus understood far narrowly today see wright west opinion thomas originally played procedural role issued right prisoner showed probable cause believe held illegally without conviction entered competent jurisdiction prisoner obligated warden file return identifying grounds imprisonment church treatise writ habeas corpus rev ed hereinafter church grant writ decided nothing except case calling answer gaoler goddard note habeas corpus rev ultimate decision matter limited confirming legality prisoner confinement ordering immediate discharge see church writ today contrast invoked justify broad federal review state criminal proceedings constitutional violations district issues writ usually enters order offering state choice immediate release retrial resentencing within defined period time see wilkinson dotson scalia concurring purpose order afford state opportunity remedy specific constitutional violation identified district since inception century ago treated order entitling habeas petitioner new proceeding new proceeding cures specific defect identified district one earliest precedents contemplating order bonner case involved prisoner lawfully convicted unlawfully ordered serve federal sentence state penitentiary invoking power control direct form judgment entered cases brought habeas corpus ordered delay discharge allow prisoner taken judgment rendered defects want jurisdiction subject complaint judgment may corrected emphasis added see also magwood patterson kennedy joined inter alios alito dissenting conditional grant relief allows state correct error occurred original sentencing understanding habeas judgments prevailed unbroken line precedent see richmond lewis hilton braunskill dowd ex rel cook mahler eby cf dotson supra scalia concurring conditional writ serves release order provide state opportunity correct constitutional quoting braunskill supra state fails cure specific constitutional violation identified district habeas petitioner entitled release prevailing habeas petitioner shown conviction sentencing proceeding unconstitutional therefore actually entitled release dotson scalia concurring conditional writs enable habeas courts give time replace invalid judgment valid one consequence fail always release entitlement release tied constitutional violation identified state committing new constitutional violation new sentencing proceeding required release habeas petitioner old order cf magwood supra explaining habeas petitioner obtains new sentencing proceeding basis one error may subsequently raise first habeas application errors repeated proceeding habeas petitioner rights order thus defined violation justified entry wording order pitchess davis per curiam makes clear davis involved prisoner obtained habeas relief prosecutor failed disclose material exculpatory laboratory report violation brady maryland state moved retry prisoner discovered state destroyed physical evidence used initial trial district granted prisoner motion convert initial order unconditional order appeals affirmed decision granted certiorari reversed although order provided prisoner released unless state moved retry within days davis pitchess supp cd cal read order require state provid respondent laboratory report addition moving retry within days davis emphasis added order address separate issue physical evidence refused allow district use destruction basis converting order unconditional order decision makes sense considered light traditional principles equitable relief frequently rested habeas decisions equitable principles withrow williams scalia concurring part dissenting part principles remain relevant aedpa enactment consistent statutory scheme congress adopted see mcquiggin perkins scalia dissenting slip frequently recognized equitable remedy must limited inadequacy produced asserted injury lewis casey thus order permit federal habeas maintain continuing supervision retrial conducted pursuant conditional writ granted habeas davis neither order permit state hold prisoner new judgment infected constitutional violation justified order entry first place see dotson supra scalia concurring harvest castro phifer warden interpretation judgments render writ hollow history writ habeas corpus treatment orders traditional principles equitable relief resolve dispute issue habeas petitioner awarded order based error sentencing proceeding entitled order new proceeding without specific constitutional violation identified district raising constitutional violation appeal attempt modify prisoner rights flowing order given principles judgment appeals affirmed jennings prevailed district two theories ineffective assistance counsel lost another district entered order instructing state release jennings unless granted jennings new sentencing hearing within days commuted sentence ante precedents general order embodies specific instruction state respect new sentencing proceeding resentence jennings without two identified wiggins errors see ante citing wiggins smith state failure comply order justify jennings release jennings attempted expand rights judgment attempted alter instruction state adding additional instruction spisak error accordingly grounds upon obtain immediate release see ante citing smith spisak jennings substance needed obtain coa iii majority makes attempt reconcile decision history orders precedents traditional limitations equitable relief instead divines intuitive answer question presented ante law judgments incorrect source law position fundamentally odds law judgments purports rely majority agrees understand rule applies given case one must understand rights parties obtained judgment issue majority refuses look past language order course true parties domesticate judgments opinions ante similarly true prevailing parties enforce judgments reasoning ante truisms however answer question rights flow judgments answering question majority simply announces rights flow habeas petitioner judgment rights flow civil judgment assertion ignores unique context habeas traditional principles law judgments never applied explained writ habeas corpus historically purely procedural mechanism obtain determination legality prisoner confinement church determination never treated ordinary civil judgment entitled res judicata effect see also mccleskey zant even majority correct law judgments simply imported habeas context misapplies law long recognized principles including doctrine preclusion parties greater rights civil judgments merely particular relief afforded prevailing plaintiff claims wholly merged judgment preventing defendant future action judgment availing defenses raised first adjudication claims restatement second judgments defendant whether victorious rely upon judgment final adjudication particular claim preventing plaintiff pursuing another action future claim principles give rights parties beyond remedy ordered narrowly artificially defining rights flowing civil judgment solely rights identified written order majority disregards basic principles majority purports apply general law judgments decision damage well beyond habeas context case arises habeas context specifically majority opinion invites frivolous appeals congress passed aedpa prevent although courts long relied certificate probable cause mechanism prevent frivolous appeals habeas cases aedpa narrowed access appeals creation coa requirement cockrell thomas dissenting habeas petitioner obtain coa absent substantial showing denial constitutional merely federal right see slack mcdaniel requirement serves important gatekeeping function majority decision seriously undermine courts ability perform function allowing prisoners pursue alternative allegation matter frivolous justified new proceeding awarded order danger means exaggerated ante majority suggests habeas petitioners frequently pursue arguments collateral review even though effectively concentrate handful arguments see calvert henderson wl ed mar raising allegations ineffective assistance counsel battle roper wl ed mar raising double jeopardy issue allegations ineffective assistance counsel see little reason suspect prisoners file scattershot applications suddenly alter strategy appeal indeed experience courts appeals suggests otherwise see jones keane noting refusing consider absent coa prevailing petitioner alternative grounds affirmance allegations insufficiency evidence ineffective assistance trial appellate counsel experience courts appeals conduct likely grow majority approved appeals seventh circuit permitted prevailing habeas petitioners raise rejected claims alternative grounds affirmance courts appeals subject rule majority also overlooks significant procedural distinction application coa merits appeal majority expresses doubt judicial time wasted rejection frivolous claims made defense judgment appeal already taken wasted rejection similar claims made separate proceeding certificate appealability ante coa decided single appeals judge merits appeal must heard panel mandating involvement two additional judges adjudication claims today ruling triples burden courts appeals repeatedly recognized aedpa purpose reduc delays execution state federal criminal sentences ryan valencia gonzales slip internal quotation marks omitted one key ways aedpa encourages finality narrow scope appellate review requiring habeas petitioners obtain coas majority decision undermines legislative choice transforms understanding orders prevailed since first announced creation respectfully dissent