Per Curiam
JENKINS, WARDEN v. HUTTON
on petition for writ of certiorari to the united
states court of appeals for the sixth circuit
No. 16–1116. Decided June 19, 2017 An Ohio jury convicted respondent Percy Hutton of aggravated murder, attempted murder, and kidnaping. In connection with the aggravated murder conviction, the jury also made two additional findings: that Hut-ton engaged in a course of conduct designed to kill multiple people and that he committed kidnaping. Based on these aggravating factors, the State sought the death penalty. At the conclusion of the penalty phase of the trial, the trial court instructed the jury that it could recommend a death sentence only if it unanimously found that the State had proved beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating factors. The jury recommended death, and the trial court accepted that recommendation. The Ohio Court of Appeals and the Ohio Supreme Court affirmed. Hutton then sought federal habeas relief, arguing that the trial court gave the jurors insufficient guidance by failing to instruct them that, when weighing aggravating and mitigating factors, they could consider only the two aggravating factors they had found during the guilt phase. The District Court determined that Hutton's claim was procedurally defaulted because he flailed to object to the trial court's instruction or to raise the argument on direct appeal. The Sixth Circuit reversed, concluding that notwithstanding the procedural default, Hutton had “show[n] by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found [him] eligible for the death penalty under the applicable state law.” Sawyer v. Whitley, 505 U. S. 333, 336. Held: The Sixth Circuit was wrong to reach the merits of Hutton's claim. First, the jury found two aggravating circumstances during the guilt phase of the trial, each of which rendered Hutton death penalty eligible. The penalty phase instruction plainly had no effect on the jury's decision that those aggravating circumstances were present when Hutton committed the murder for which he was convicted. Second, assuming that the consequences of the trial court's alleged error excuses Hutton's procedural default, the Sixth Circuit should have asked whether, given proper instructions about the two aggravating circumstances, a reasonable jury could have decided that those aggravating circumstances outweighed the mitigating ones. Instead, the court considered whether, given the (alleged) improper instructions, the jury might have relied on
invalid aggravating circumstances when it recommended a death sentence. That approach, which would justify excusing default whenever an instructional error could have been relevant to a jury's decision, is incompatible with Sawyer . Certiorari granted; 839 F. 3d 486, reversed and remanded.
Per Curiam.
Respondent Percy Hutton accused two friends, Derek Mitchell and Samuel Simmons, Jr., of stealing a sewing machine, in which he had hidden $750. Mitchell and Simmons denied the accusation, but Hutton remained suspicious. On the night of September 16, 1985, he lured the pair into his car and, after pointing a gun at each, drove them around town in search of the machine. By night's end, Hutton had recovered his sewing machine, Simmons was in the hospital with two gunshot wounds to the head, and Mitchell was nowhere to be found. Simmons survived, but Mitchell was found dead a few weeks later, also having been shot twice.
More than 30 years ago, an Ohio jury convicted Hutton of aggravated murder, attempted murder, and kidnaping. In connection with the aggravated murder conviction, the jury made two additional findings: that Hutton engaged in “a course of conduct involving the . . . attempt to kill two or more persons,” and that Hutton murdered Mitchell while “committing, attempting to commit, or feeing immediately after . . . kidnapping,” Ohio Rev. Code Ann. §§ 2929.04(A)(5), (7) (Lexis 1982). Because of these “aggravating circumstances,” Ohio law required that Hutton be sentenced to “death, life imprisonment without parole, [or] life imprisonment with parole eligibility after” no fewer than 20 years in prison. § 2929.03(C)(2).
Several days after rendering its verdict, the jury reconvened for the penalty phase of the trial. The State argued for the death penalty. In opposition, Hutton gave an unsworn statement professing his innocence and presented evidence about his background and psychological profile. When the presentations concluded, the trial court instructed
The Ohio Court of Appeals and the Ohio Supreme Court affirmed Hutton's death sentence. In doing so, both concluded that “the evidence support[ed] the finding of the aggravating circumstances.” § 2929.05(A); see Hutton, 100 Ohio St. 3d, at 187, 797 N. E. 2d, at 961; State v. Hutton, 72 Ohio App. 3d 348, 350, 594 N. E. 2d 692, 694 (1995). The courts also “independently weigh[ed] all of the facts . . . to determine whether the aggravating circumstances [Hutton] was found guilty of committing outweigh[ed] the mitigating factors.” Ohio Rev. Code Ann. § 2929.05(A). Both agreed with the jury and the trial court that “aggravating circumstances outweigh[ed] the mitigating factors,” and that a death sentence was warranted. Hutton, 100 Ohio St. 3d, at 191, 797 N. E. 2d, at 963–964; see Hutton, 72 Ohio App. 3d, at 352, 594 N. E. 2d, at 695.
The case before this Court concerns Hutton's subsequent petition for federal habeas relief. In 2005, Hutton filed such a petition pursuant to 28 U. S. C. § 2254, arguing that the trial court violated his due process rights during the penalty phase of his trial. According to Hutton, the court gave the jurors insufficient guidance because it flailed to tell them that, when weighing aggravating and mitigating factors, they could consider only the two aggravating factors they had found during the guilt phase. Hutton, however, had not objected to the trial court's instruction or raised this argument
The United States Court of Appeals for the Sixth Circuit reversed. The court concluded that, notwithstanding the procedural default, it could “reach the merits” of Hutton's claim to “avoid a fundamental miscarriage of justice.” Hut-ton v. Mitchell, 839 F. 3d 486, 498 (2016) (internal quotation marks omitted). The Sixth Circuit began its analysis with Sawyer v. Whitley, 505 U. S. 333 (1992). In that decision, this Court established that a habeas petitioner may obtain review of a defaulted claim upon “show[ing] by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found [him] eligible for the death penalty under the applicable state law.” Id., at 336.
Hutton had not argued that this exception to default applied to his case. Nonetheless, the Sixth Circuit held that the exception justified reviewing his claim. The court gave two reasons: First, Hutton was not eligible to receive a death sentence because “the jury had not made the necessary find-ing of the existence of aggravating circumstances.” 839 F. 3d, at 498–499. And second, since the trial court “gave the jury no guidance as to what to consider as aggravating circumstances” when weighing aggravating and mitigating factors, the record did not show that the jury's death recommendation “was actually based on a review of any valid aggravating circumstances.” Id., at 500. On the merits, the court concluded that the trial court violated Hutton's constitutional rights by giving an erroneous jury instruction. Judge Rogers dissented on the ground that Hutton could not overcome the procedural default.
The Sixth Circuit's second reason for reaching the merits rests on a legal error. Under Sawyer , a court may review a procedurally defaulted claim if, “ but for a constitutional error, no reasonable jury would have found the petitioner eligible for the death penalty.” 505 U. S., at 336 (emphasis added). Here, the alleged error was the trial court's failure to specify that, when weighing aggravating and mitigating factors, the jury could consider only the aggravating circumstances it found at the guilt phase. Assuming such an error can provide a basis for excusing default, the Sixth Circuit should have considered the following: Whether, given proper instructions about the two aggravating circumstances, a reasonable jury could have decided that those aggravating circumstances outweighed the mitigating circumstances.
But the court did not ask that question. Instead, it considered whether, given the (alleged) improper instructions, the jury might have been relying on invalid aggravating cir-
Neither Hutton nor the Sixth Circuit has “show[n] by clear and convincing evidence that”—if properly instructed—“no reasonable juror would have” concluded that the aggravating circumstances in Hutton's case outweigh the mitigating circumstances. Sawyer , supra, at 336. In fact, the trial court, Ohio Court of Appeals, and Ohio Supreme Court each independently weighed those factors and concluded that the death penalty was justified. On the facts of this case, the Sixth Circuit was wrong to hold that it could review Hutton's claim under the miscarriage of justice exception to procedural default.
The petition for certiorari and motion for leave to proceed in forma pauperis are granted, the judgment of the United States Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.