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Petitioner, V No. 19-_____ IN THE Supreme Court of the United States CHRISTA GAIL PIKE, Petitioner, v. GLORIA GROSS, WARDEN, Respondent. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit PETITION FOR A WRIT OF CERTIORARI ELAINE J. GOLDENBERG STEPHEN FERRELL Counsel of Record FEDERAL DEFENDER SERVICES OF MUNGER, TOLLES & OLSON LLP EASTERN TENNESSEE, INC. 1155 F Street NW, Seventh Floor 800 S. Gay Street, Suite 2400 Washington, DC 20004-1357 Knoxville, TN 37929-9714 (202) 220-1100 [email protected] MARKUS A. BRAZILL DAVID FREENOCK* MUNGER, TOLLES & OLSON LLP 350 S. Grand Avenue Fiftieth Floor Los Angeles, CA 90071-3426 (213) 683-9100 Counsel for Petitioner * Admitted in the District of Columbia and admission pending in California. i CAPITAL CASE QUESTIONS PRESENTED The questions presented are: 1. Whether a defendant who asserts that trial coun- sel failed to present key evidence is precluded from showing prejudice under Strickland v. Washington, 466 U.S. 668 (1984), unless the evidence omitted at trial differs substantially in subject matter from the evidence actually presented. 2. Whether the Eighth and Fourteenth Amend- ments prohibit condemning to death a defendant who was eighteen years old at the time of the offense. ii PARTIES TO THE PROCEEDING Petitioner Christa Gail Pike was the petitioner be- low. Respondent Gloria Gross, Warden, was the re- spondent below. iii RELATED PROCEEDINGS The proceedings directly related to this petition are: Pike v. Gross, No. 16-5854 (6th Cir. Aug. 22, 2019), rehearing en banc denied (Sept. 26, 2019) Pike v. Freeman, No. 1:12-CV-35 (E.D. Tenn. Mar. 11, 2016) Pike v. State, No. E2009-00016-CCA-R3-PD (Tenn. Crim. App. Apr. 25, 2011), application for permis- sion to appeal denied (Nov. 15, 2011) Pike v. State, No. E2003-00766-SC-R11-PD (Tenn. May 12, 2005) Pike v. State, No. E2002-00766-CCA-R3-PD (Tenn. Crim. App. July 15, 2004) Pike v. State, No. 68280 (Knox Cty. Crim. Ct.) State v. Pike, No. 03S01-9712-CR-00147 (Tenn. Oct. 5, 1998), rehearing denied (Nov. 23 1998) State v. Pike, No. 03C01-9611-CR-00408 (Tenn. Crim. App. Nov. 26, 1997) State v. Pike, No. 58183A (Knox Cty. Crim. Ct.) iv TABLE OF CONTENTS Page QUESTIONS PRESENTED ......................................... i PARTIES TO THE PROCEEDING ............................ ii RELATED PROCEEDINGS....................................... iii OPINIONS BELOW .................................................... 1 JURISDICTION .......................................................... 1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ............................... 1 INTRODUCTION ........................................................ 2 STATEMENT OF THE CASE..................................... 3 REASONS FOR GRANTING THE PETITION ........ 18 I. This Court Should Resolve A Deep Conflict Among The Courts Of Appeals Regarding When Omitted Mitigation Evidence Is Cumulative Of Evidence Presented At Trial ........................................... 19 A. The Decision Below Conflicts With Decisions Of Other Courts Of Appeals ............................................ 19 B. The Decision Below Is Wrong. ............. 26 II. This Court’s Review Is Warranted To Determine Whether The Death Penalty May Be Imposed On A Defendant Who Committed The Offense At Age 18 ................. 30 CONCLUSION .......................................................... 34 APPENDIX v Appendix A: Opinion of the United States Court of Appeals for the Sixth Circuit (August 22, 2019) ...................................................... 1a Appendix B: Opinion of the United States District Court for the Eastern District of Tennessee (March 11, 2016) ................................... 28a Appendix C: Order of the Supreme Court of Tennessee Denying Certiorari (November 21, 2011) ............................................. 107a Appendix D: Opinion of the Court of Criminal Appeals of Tenneessee (April 25, 2011) ............... 108a Appendix E: Order of the United States Court of Appeals for the Sixth Circuit Granting in Part and Denying in Part a Certificate of Appealability (March 30, 2017) ............................. 254a Appendix F: Order of the United States Court of Appeals for the Sixth Circuit Denying Rehearing ............................................................... 257a Appendix G: Constitutional Provisions ................ 258a Appendix H: Relevant Statutory Provisions ........ 261a vi TABLE OF AUTHORITIES Page(s) FEDERAL CASES Abdul-Salaam v. Sec’y of Pennsylvania Dep’t of Corr., 895 F.3d 254 (3d Cir. 2018) ............................ 22, 23 Anderson v. Kelley, 938 F.3d 949 (8th Cir. 2019) ................................ 22 Ayestas v. Davis, 138 S. Ct. 1080 (2018) .......................................... 30 Beuke v. Houk, 537 F.3d 618 (6th Cir. 2008) .......................... 20, 21 Bond v. Beard, 539 F.3d 256 (3d Cir. 2008) .................................. 23 Brewer v. Quarterman, 550 U.S. 286 (2007) ................................................ 2 Busby v. Davis, 925 F.3d 699 (5th Cir. 2019) ................................ 21 Clark v. Mitchell, 425 F.3d 270 (6th Cir. 2005) .......................... 16, 17 Cruz v. United States, 2018 WL 1541898 (D. Conn. Mar. 29, 2018)...................................................................... 31 Cullen v. Pinholster, 563 U.S. 170 (2011) .............................................. 21 vii TABLE OF AUTHORITIES (continued) Page(s) Furman v. Georgia, 408 U.S. 238 (1972) ................................................ 3 Greene v. Fisher, 565 U.S. 34 (2011) ................................................ 30 Griffin v. Pierce, 622 F.3d 831 (7th Cir. 2010) .......................... 23, 24 Hill v. Mitchell, 400 F.3d 308 (6th Cir. 2005) .......................... 20, 27 Holsey v. Warden, 694 F.3d 1230 (11th Cir. 2012) ............................ 20 Jermyn v. Horn, 266 F.3d 257 (3d Cir. 2001) ............................ 22, 23 Kayer v. Ryan, 923 F.3d 692 (9th Cir. 2019) .......................... 24, 25 Lockett v. Ohio, 438 U.S. 586 (1978) .............................................. 13 Martinez v. Ryan, 566 U.S. 1 (2012) .................................................... 2 Miller v. Alabama, 567 U.S. 460 (2012) .............................................. 17 Montgomery v. Louisiana, 136 S. Ct. 718 (2016) ...................................... 17, 30 viii TABLE OF AUTHORITIES (continued) Page(s) Newbury v. Stephens, 756 F.3d 850 (5th Cir. 2014) ................................ 21 NRA v. ATF, 700 F.3d 185 (5th Cir. 2012) ................................ 32 Panetti v. Quarterman, 551 U.S. 930 (2007) .............................................. 29 Porter v. McCollum, 558 U.S. 30 (2009) .......................................... 26, 27 Pruitt v. Neal, 788 F.3d 248 (7th Cir. 2015) ................................ 24 Rompilla v. Beard, 545 U.S. 374 (2005) .............................................. 27 Roper v. Simmons, 543 U.S. 551 (2005) .......................................passim Sears v. Upton, 561 U.S. 945 (2010) .............................................. 26 Stankewitz v. Wong, 698 F.3d 1163 (9th Cir. 2012) .............................. 25 Stevens v. McBride, 489 F.3d 883 (7th Cir. 2007) ................................ 24 Strickland v. Washington, 466 U.S. 668 (1984) .......................................passim ix TABLE OF AUTHORITIES (continued) Page(s) Tanzi v. Sec’y, Fla. Dep’t of Corr., 772 F.3d 644 (11th Cir. 2014) .............................. 20 Teague v. Lane, 489 U.S. 288 (1989) .............................................. 30 Thompson v. Oklahoma, 487 U.S. 815 (1988) .............................................. 31 Trevino v. Davis, 861 F.3d 545 (5th Cir. 2017) ................................ 21 White v. Ryan, 895 F.3d 641 (9th Cir. 2018) ................................ 25 Wiggins v. Smith, 539 U.S. 510 (2003) .......................................passim Williams v. Stirling, 914 F.3d 302 (4th Cir. 2019) ................................ 28 Williams v. Taylor, 529 U.S. 362 (2000) .................................. 26, 27, 30 Wilson v. Sellers, 138 S. Ct. 1188 (2018) .......................................... 29 Wong v. Belmontes, 558 U.S. 15 (2009) ................................................ 21 FEDERAL STATUTES 28 U.S.C. 2254 ............................................................. 1 x TABLE OF AUTHORITIES (continued) Page(s) 28 U.S.C. 2254(d) ................................................. 29, 30 Antiterrorism and Effective Death Penalty Act of 1996 .............................................. 29 STATE STATUTES Tenn. Code § 39-13-204(f)(2) ..................................... 26 Tenn. Code § 39-13-204(g) ......................................... 13 Tenn. Code § 39-13-204(j)(7) ..................................... 13 Tenn. Code § 39-13-204(j)(9) ..................................... 13 CONSTITUTIONAL PROVISIONS U.S. Const. amend. VIII .....................................passim U.S. Const. amend. XIV ............................. 1, 14, 30, 31 OTHER AUTHORITIES John H. Blume & Hannah Freedman et al., Death by Numbers: Why Evolving Standards Compel Extending Roper’s Categorical Ban Against Executing Juveniles From 18 to 21 (June 2, 2019) (forthcoming Texas Law Review), https://tinyurl.com/vo6y5hq .................. 33 B.J. Casey et al., The Adolescent Brain, 28 Dev. Rev. 62 (2008) .......................................... 32 xi TABLE OF AUTHORITIES (continued) Page(s) Alexandra O. Cohen et al., When Is an Adolescent
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