Disagreeing with the majority's denial of certiorari in the case of Kevin B. Burns, who was sentenced to death for taking part in a 1992 shooting that killed two men, Justice Sonia Sotomayor said the court should have acted to reverse the effect of an "erroneous" opinion by the U.S. Court of Appeals for the Sixth Circuit in April last year that denied Burns a chance to challenge his capital sentence.
"The need for action is great because Burns faces the ultimate and irrevocable penalty of death. With so much at stake, I would vacate the decision below and remand," Justice Sotomayor said in the dissent, joined by Justices Ketanji Brown Jackson and Elena Kagan. "Because the court refuses to do so, the indefensible decision below will be the last for Burns."
Burns' cert petition was his last chance to get relief in the court system. With all legal avenues exhausted, only a pardon by the state's governor could spare Burns from execution, one of his attorneys confirmed to Law360 in an email.
Richard L. Tennent, a federal defender representing Burns who declined an interview on Monday, said in an email statement that his client has been sentenced to death for a killing he didn't commit and called Burns a "remarkable man" who made strides toward rehabilitation during his time in prison.
"Three justices of the United States Supreme Court were willing to do the extraordinary, and to grant summary relief to Kevin Burns. This speaks to the incredible power of Mr. Burns' case for life," Tennent said. "Unfortunately, our modern federal court system is not designed to address matters of mercy and redemption, or even to correct errors of law, and the other six justices followed long-standing legal practice and refused to intervene."
A state jury convicted Burns of two counts of felony murder for taking part, on the day of his 23rd birthday, in an ambush where six men shot another group of four men sitting in a car parked in a Memphis driveway and robbed them of money and jewelry.
Two of the six men fired rounds that killed Damond Dawson and Tracey Johnson, and wounded Eric Thomas and Tommie Blackman. Burns was the last person to be prosecuted for the killing. His co-defendants were sentenced to life in prison.
While to convict Burns of felony murder the jury only had to find that he participated in the robbery, determining who actually pulled the trigger was crucial in determining his sentence.
In September 1995, Burns' jury sentenced him to death, finding that that evidence of an aggravating factor — that he knowingly created a risk of death to two or more persons other than the victims murdered — outweighed the evidence of mitigating factors beyond a reasonable doubt.
After losing appeals in Tennessee courts, Burns turned to federal ones. In 2006, he filed an application for habeas corpus, a process by which people convicted in state courts can challenge their convictions or sentences on the basis of constitutional violations.
Burns claimed his trial counsel was ineffective to the point of violating his Sixth Amendment rights to a fair trial, saying his lawyer failed to impeach two of the prosecution's key witnesses: Thomas, who before blaming Burns for the shooting had told police another man in his group had opened fire; and Mary Jones, a neighbor who identified Burns in the courtroom as the man wearing a Jheri curl hairstyle whom she saw killing Dawson — though Burns wore his hair short at the time of the shooting.
In September 2010, the U.S. District Court for the Western District of Tennessee denied Burns' habeas bid, giving deference to a decision by a midlevel state court that had concluded that his trial counsel's ineffectiveness did not affect the jury's verdict.
The same court reviewed the case again in 2014 following two U.S. Supreme Court decisions, Martinez v. Ryan
and Trevino v. Thaler , that opened narrow paths for people convicted in state courts to challenge their sentences due to inadequate counsel. The district court ultimately ruled that Burns' claims were barred by federal law.After reviewing the case, the Sixth Circuit found that Burns' ineffective counsel claim was meritless.
In her dissent on Monday, Justice Sotomayor said the federal appellate court mischaracterized Burns' claims as focusing on "residual doubt" evidence — namely evidence that is introduced at sentencing with the purpose of casting doubt on a defendant's conviction — while it should have considered it instead as mitigation evidence that was relevant to the jury in deciding whether Burns deserved the death penalty.
"The error in the Sixth Circuit's decision leaps off the page," the justice said. "Evidence that Burns did not shoot the victim is not, of course, mere residual doubt evidence."
In an amicus brief filed in November, a group of ordained and lay Christian ministers who have known Burns personally during his time in prison called on the high court to intervene and grant him a hearing, arguing that the testimonies of the two key witnesses showed that he had not killed Dawson.
"This case illustrates the need for competent counsel to present mitigating evidence in capital sentencing," the brief says. "Both witnesses who identified Burns as Dawson's killer could — and should — have been impeached on their identifications."
Brian F. Irving, who filed the brief on behalf of the ministers, pointed to Burns' rehabilitation in prison as a further reason that the Supreme Court should make an effort to spare his life.
During his time at Riverbend Maximum Security Institution, which houses the state's electric chair and lethal injection gurney, Burns was ordained a minister and created a church inside the prison where he gives spiritual advice to other people who are incarcerated. He is also affiliated with a church outside Nashville, for which holds Bible studies and delivers sermons over the telephone, Irving said.
"That is a remarkable accomplishment and a story that my clients wanted the Supreme Court to know," Irving told Law360.
Voicing her dismay over her colleagues' inaction, Justice Sotomayor said Burns' case reflects the kind of situation where the court has intervened before — one where the underlying relevant facts are not in dispute but where lower courts' decisions conflict with Supreme Court precedent.
"The court's decision to deny certiorari means that Burns now faces execution despite a very robust possibility that he did not shoot Dawson but that the jurors, acting on incomplete information, sentenced him to death because they thought he had," she said in her dissent.
Brandon L. Garrett, a habeas corpus scholar and professor at Duke University School of Law, said in an email to Law360 that he found "striking" the lack of preparation by Burns' trial counsel, in particular considering that he was facing the death penalty. He also said Burns' arguments that there were errors of law in his habeas case were strong enough to warrant the high court's review.
"If the Supreme Court is not often going to grant certiorari in cases raising serious questions whether habeas relief was improperly denied, then that tends to encourage lower courts to be less careful in denying relief to meritorious claims," Garrett said.
In his statement, Tennent said the six-justice majority decision not to hear Burns' case signals the court's overall displeasure in wading through capital cases.
"As those six justices implicitly held, the responsibility for relieving an inmate of an unjust sentence of death lies not with the federal courts, but with the governor through clemency," he said.
No date has been set for Burns' execution. In January, the state of Tennessee, which kills capital inmates primarily through lethal injection, halted all executions due to problems identified in its execution protocol. That hold, however, won't last indefinitely, attorneys said.
A spokesperson for the office of Gov. Bill Lee, a Republican, did not immediately respond to a request for comment.
Elizabeth Lane, a press secretary for the Office of the Tennessee Attorney General, declined to comment.
"We do not have anything further to add on the Burns case at this time," she said in a statement.
Kevin Burns is represented by Richard L. Tennent of the Office of the Federal Public Defender for the Western District of Tennessee.
Warden Tony Mays is represented by John Henry Bledsoe III of the Office of Tennessee Attorney General.
The case is Kevin B. Burns v. Tony Mays, Warden, case number 22-5891, in the Supreme Court of the United States.
--Editing by Rich Mills.
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