PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
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.
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 fleeing
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
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 jury that it could
recommend a death sentence only if it unanimously found that
the State had "prove[d] beyond a reasonable doubt that
the aggravating circumstances, of which the Defendant was
found guilty, outweigh[ed] the [mitigating factors]."
State v. Hutton, 100 Ohio St.3d 176, 185,
2003-Ohio-5607, 797 N.E.2d 948, 958; see Ohio Rev. Code Ann.
§2929.03(D)(2). The jury deliberated and recommended
death. The trial court accepted the recommendation after also
finding, "beyond a reasonable doubt, . . . that the
aggravating circumstances . . . outweigh[ed] the mitigating
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.
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 failed
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 on direct appeal, and the District Court on
federal habeas concluded that his due process claim was
procedurally defaulted. Hutton v. Mitchell, 2013 WL
2476333, *64 (ND Ohio, June 7, 2013); see State v.
Hutton, 53 Ohio St.3d 36, 39, n. 1, 559 N.E.2d 432,
437-438, n. 1 (1990) (declining to address trial court's
instructions because Hutton "specifically declined to
object ... at trial, and ha[d] not raised or briefed the
issue" on appeal).
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." Hutton 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 jury
would have found [him] eligible for the death penalty under
the applicable state law." Id., at 336.
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 finding 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.
Sixth Circuit was wrong to reach the merits of Hutton's
claim. The court's first reason for excusing default was
that "the jury had not [found] the existence of
aggravating circumstances." Id., at 498-499.
But it had, at the guilt phase of Hutton's trial. As
Judge Rogers pointed out, "the jury found two such
factors"-engaging in a course of conduct designed to
kill multiple people and committing kidnaping-"in the
process of convicting Hut-ton ... of aggravated murder."
Id., at 511. Each of those findings "rendered
Hutton eligible for the death penalty." Ibid.
Hutton has not argued that the trial court improperly
instructed the jury about aggravating circumstances at the
guilt phase. Nor did the Sixth Circuit identify any such
error. Instead, the instruction that Hutton contends is
incorrect, and that the Sixth Circuit analyzed, was given at
the penalty phase of trial. That penalty phase
instruction plainly had no effect on the jury's decision-
delivered after the guilt phase and pursuant to an
unchallenged instruction-that aggravating circumstances were
present when Hutton murdered Mitchell.
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.
court did not ask that question. Instead, it considered
whether, given the (alleged) improper instructions,
the jury might have been relying on invalid aggravating
circumstances when it recommended a death sentence. See 839
F.3d, at 500 (explaining that, because the trial court gave
"no guidance as to what to consider as aggravating
circumstances, " the court could not determine whether
the death recommendation "was actually based on a review
of any valid aggravating circumstances"). The court, in
other words, considered whether the alleged error might have
affected the jury's verdict, not whether a properly
instructed jury could have recommended death. That approach,
which would justify excusing default whenever an
instructional error could have been relevant to a jury's
decision, is incompatible with Sawyer.
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,
505 U.S., 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.
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 ...