Jennings v. Stephens

Petitioner seeking habeas relief for ineffective assistance of counsel under two Wiggins theories was not required to file cross-appeal to preserve a Spisak claim because it would not enlarge Petitioner’s rights nor diminish the rights of the State under a District Court’s judgment.

Petitioner was convicted of capital murder. During the sentencing phase of the initial trial, petitioner contends that his attorney failed to introduce evidence that petitioner had a disadvantaged personal background and mental illness. Petitioner’s attorney also made the comment that the attorney could not “quarrel with” a death penalty verdict against petitioner. After receiving a death penalty verdict, petitioner filed a federal habeas petition citing Wiggins v. Smith, 539 U.S. 510 (2003) to address petitioner’s failure to provide evidence as to petitioner’s disadvantaged personal background and mental illness; these two challenges were referred as attorney’s “Wiggins errors”. Petitioner also challenged the constitutional ineffectiveness of his attorney’s remarks during sentencing, but did not cite Spisak v. Smith, 558 U.S. 139 (2010), a case that addresses the challenged attorney conduct. This claim was referred to as the attorney’s “Spisak error.”

A federal habeas court provided petitioner with relief based on the “Wiggins errors,” but not the “Spisak error.” The State appealed the federal habeas court decisions to the Fifth Circuit Court of Appeals. The Fifth Circuit overruled the federal habeas court grant of habeas under the two “Wiggins errors” and held that the Fifth Circuit did not have jurisdiction to review the “Spisak error” because petitioner had not filed a cross-appeal to preserve the “Spisak error” for review.

The Court found that review of the “Spisak error” did not require a cross-appeal to be preserved for review. The Court cited United States v. American Railway Express Co., 265 U.S. 245, 435 (1924), noting that despite not filing a cross-appeal, petitioner could “urge in support of a decree any matter appearing before the record, although his argument may involve an attack upon the reasoning of the lower court.” However, a petitioner who fails to file a cross-appeal cannot “attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary.” The Court held that because review of petitioners “Spisak error” would not enlarge petitioner’s rights nor diminish the rights of the State under a District Court’s judgment petitioner was not required to file for a cross-appeal or get a certificate of appealability.