Shoop v. Cunningham

Cite as: 598 U. S. ____ (2022) 1

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES
TIM SHOOP, WARDEN v. JERONIQUE D.
CUNNINGHAM
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 21–1587. Decided November 14, 2022

The motion of respondent for leave to proceed in forma
pauperis is granted. The petition for a writ of certiorari is
denied.
JUSTICE THOMAS, with whom JUSTICE ALITO and
JUSTICE GORSUCH join, dissenting from denial of certiorari.
In 2002, respondent Jeronique Cunningham concluded
an armed robbery of his drug dealer with a spray of bullets
that killed a teenager and a toddler. An Ohio jury convicted
him of capital murder, and the trial court sentenced him to
death. Twenty years later, the Sixth Circuit ordered an ev-
identiary hearing to determine whether the foreperson’s
presence on the jury deprived Cunningham of due process—
either because the foreperson received prejudicial outside
information about Cunningham or because she was biased
by an undisclosed relationship with the victims’ families.
In analyzing the first claim, the Sixth Circuit once again
flouted the deferential standard of review demanded by the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). In analyzing the second claim, the Sixth Circuit
applied an incorrect framework to justify a fishing expedi-
tion based on allegations with no admissible factual foun-
dation.
To correct these manifest abuses of the Sixth Circuit’s ha-
beas jurisdiction, I would grant Ohio’s petition and sum-
marily reverse the judgment below. Therefore, I respect-
fully dissent from denial of certiorari.
2 SHOOP v. CUNNINGHAM

THOMAS, J., dissenting

I
On January 3, 2002, Cunningham and his half-brother,
Cleveland Jackson, purchased crack cocaine from Shane
Liles in Lima, Ohio. That evening, Cunningham and Jack-
son returned to Liles’ apartment to rob him. Both were
armed with handguns. Liles was not home when the would-
be robbers arrived, so Liles’ girlfriend, Tomeaka Grant,
called him to let him know he had visitors. Cunningham
and Jackson waited for Liles in the living room, where three
teenagers—Leneshia Williams, Coron Liles, and Dwight
Goodloe, Jr.—were watching The Fast and the Furious. In
the meantime, Tomeaka Grant returned to the kitchen,
where she was playing cards with James Grant (her
brother) and Arnetta Robinson (a family friend). James
Grant’s 3-year-old daughter, Jala Grant, was also present.
When Liles got home, Jackson pretended to be interested
in another drug buy until Cunningham drew his gun. Cun-
ningham then herded the teens into the kitchen, where he
held everyone at gunpoint. Meanwhile, Jackson walked
Liles upstairs at gunpoint while demanding drugs and
money, tied his hands behind his back, and finally forced
him to join the group in the kitchen.
The two robbers ordered the assembled victims, now
eight in total, to place their valuables on the kitchen table.
When Liles said he had none left, Jackson shot him in the
back. Both robbers then fired into the huddled group until
their guns were empty. All eight victims were shot. Two
died: 17-year-old Leneshia and 3-year-old Jala, both killed
by bullets to the head. Jala’s father, James Grant, was shot
five times as he vainly attempted to shield his young daugh-
ter. Robinson was comatose for 47 days, and Tomeaka
Grant lost an eye.
In June 2002, a jury found Cunningham guilty of aggra-
vated murder, attempted murder, and aggravated robbery.
After a penalty hearing, the jury recommended and the trial
court imposed the death sentence for the murders. The
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THOMAS, J., dissenting

Ohio Supreme Court affirmed Cunningham’s convictions
and sentence. State v. Cunningham, 105 Ohio St. 3d 197,
2004-Ohio-7007, 824 N. E. 2d 504.
Cunningham filed a state postconviction motion, assert-
ing (among other claims not relevant here) that the jury
foreperson’s presence on the jury had deprived him of a fair
trial. Cunningham based this claim on a postverdict inter-
view that the foreperson had given to a private investigator
working for Jackson’s defense team. The investigator’s
notes reflect that the foreperson discussed the evidence in
the case and what she and the other jurors had thought
about it in detail. Then, near the end of the interview, she
stated that “ ‘some social workers worked with Jeronique
[Cunningham] in the past and were afraid of him.’ ” State
v. Cunningham, 2004-Ohio-5892, ¶60 (App.). Latching onto
that statement, Cunngingham alleged that the foreperson,
who worked at Allen County Children Services, had re-
ceived extraneous prejudicial information about him from
her colleagues.
The trial court dismissed the claim without discovery or
an evidentiary hearing, and the Ohio Court of Appeals af-
firmed. See id., ¶¶67–71. The Ohio Court of Appeals ex-
plained that the investigator’s notes did not suggest that
the foreperson had obtained any information from her fel-
low social workers prior to Cunningham’s trial. After all,
the court noted, the record did not show when the investi-
gator had interviewed the foreperson, and the foreperson
had been thoroughly examined in voir dire with no indica-
tion that she could not be fair and impartial. Id., ¶61. The
court further reasoned that the foreperson’s negative “im-
pression of Cunningham’s character . . . was likely shaped
during the trial” and that the rest of the interview notes
showed that the foreperson “followed the law and carefully
considered the evidence in the case.” Id., ¶62.
In 2006, Cunningham filed a federal habeas corpus peti-
tion in the District Court for the Northern District of Ohio,
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THOMAS, J., dissenting

reasserting his outside-information claim. Although Cun-
ningham’s claim had been adjudicated on the merits in
state court, the District Court decided in 2008 that he was
entitled to discovery about “when [the foreperson] acquired
[the outside] information, who she learned it from, whether
she told any other jurors and whether this information in-
fluenced her or any other jurors to convict Cunningham
and/or vote for the death penalty.”1 Cunningham v. Hud-
son, 2008 WL 2390777, *7 (June 9, 2008). The District
Court thus authorized Cunningham to depose the foreper-
son, all seated and alternate jurors, Allen County Children
Services employees, and the investigator who had inter-
viewed the foreperson.
Cunningham obtained affidavits from two other jurors,
neither of whom recalled hearing the foreperson discuss
any outside information about Cunningham. The jurors
did, however, attest to a statement by the foreperson re-
garding the victims’ families during deliberations. Accord-
ing to one juror, the foreperson said, “I know the families of
the people that were shot in the kitchen. The families know
me and I am going to have to go back and see them. These
families are my clients.” App. to Pet. for Cert. 101a. Ac-
cording to the second juror, the foreperson “told the young
woman [the first juror] and the jury that the young woman
did not have to work in the local community.” Id., at 102a.
The foreperson was deposed in January 2009. She con-
firmed that she had not spoken to any of her colleagues
about Cunningham prior to his trial. Rather, she only
“looked through [his] files” after the trial and sentencing
——————
1 When a claim has been adjudicated on the merits in state court, re-

view under 28 U. S. C. §2254(d)(1) must be limited to the evidence in the
state-court record. Cullen v. Pinholster, 563 U. S. 170 (2011). Although
this Court had not yet decided Cullen when the District Court authorized
Cunningham to take discovery, the Sixth Circuit had already applied the
same rule in binding precedent. See Eady v. Morgan, 515 F. 3d 587, 601
(2008).
 Cite as: 598 U. S. ____ (2022) 5

THOMAS, J., dissenting

were “completely over.” Cunningham v. Hudson, No. 3:06–
cv–00167 (ND Ohio, Feb. 15, 2009), ECF Doc. 107, p. 4.
Cunningham’s counsel also asked the foreperson if she
knew the victims, but the presiding Magistrate Judge sus-
tained the State’s objection that the question was beyond
the scope of Cunningham’s bias claim. Soon afterward, the
District Court allowed Cunningham to amend his juror-bias
claim to add an allegation that the foreperson was biased
by a relationship with the victims’ families.
The two other jurors were deposed in October 2009. The
first juror substantially repeated the statements in her af-
fidavit, while acknowledging that she was merely para-
phrasing the foreperson’s words and that her memory was
not very good. The second juror testified that the foreper-
son “stated she may in the future be working with the fam-
ilies,” but “not that she had been.” App. to Pet. for Cert.
103a. The District Court again permitted Cunningham to
amend his claim to include these statements as related in
the depositions.
The case was then assigned to a different District Judge,
who dismissed all of Cunningham’s claims as procedurally
defaulted, meritless, or both, and denied a certificate of ap-
pealability (COA) in 2010. But the Sixth Circuit granted a
COA on seven claims, including the claim that the foreper-
son’s presence on the jury had deprived Cunningham of a
fair trial. In 2014, three years after granting the COA, the
Sixth Circuit concluded that it was unclear whether Cun-
ningham’s family-relationship claim was exhausted, and it
remanded for the District Court to grant a stay and abey-
ance while Cunningham presented the claim to the state
courts. Cunningham v. Hudson, 756 F. 3d 477 (per cu-
riam). The Ohio courts ultimately confirmed that Cunning-
ham had no further state-law avenue for review. See State
v. Cunningham, 2016-Ohio-3106, ¶¶10–26, 65 N. E. 3d 307,
311–316 (App.). In 2019, the District Court (essentially re-
6 SHOOP v. CUNNINGHAM

THOMAS, J., dissenting

peating its analysis from nine years earlier) again dis-
missed Cunningham’s habeas claims as procedurally de-
faulted, meritless, or both.
Just over two years later, in the decision below, a divided
Sixth Circuit panel reversed and remanded, ordering the
District Court to “conduct an evidentiary hearing to inves-
tigate Cunningham’s two juror-bias claims.” 23 F. 4th 636,
678 (2022). First, the majority held that the Ohio postcon-
viction courts unreasonably applied Remmer v. United
States, 347 U. S. 227 (1954), by rejecting Cunningham’s
outside-information claim without conducting a hearing.
23 F. 4th, at 650. Drawing heavily on Circuit precedent,
the majority reasoned that any “colorable claim” of outside
influence entitles a defendant to a “Remmer hearing,” and
it held that Cunningham’s claim met that standard. Id., at
651 (citing Ewing v. Horton, 914 F. 3d 1027, 1030 (CA6
2019); Garcia v. Andrews, 488 F. 3d 370, 376 (CA6 2007);
United States v. Herndon, 156 F. 3d 629, 635 (CA6 1998)).
The panel majority also held that Cunningham was enti-
tled to a hearing on the family-relationship claim. Its anal-
ysis consisted of an elaborate comparison between Cun-
ningham’s claim and Williams v. Taylor, 529 U. S. 420
(2000) (Michael Williams), where we held that AEDPA did
not bar an evidentiary hearing because the petitioner had
been diligent in developing his claim’s factual basis. See 23
F. 4th, at 655–662. The majority concluded that “[t]his case
is Michael Williams, blow-for-blow,” and—on that basis—
ordered the District Court to conduct an evidentiary hear-
ing. Id., at 662. It was undeterred by the fact (which it did
not dispute) that Federal Rule of Evidence 606(b)2 barred
——————
2 Rule 606(b) provides:

“(1) Prohibited Testimony or Other Evidence. During an inquiry into
the validity of a verdict or indictment, a juror may not testify about any
statement made or incident that occurred during the jury’s deliberations;
the effect of anything on that juror’s or another juror’s vote; or any juror’s
mental processes concerning the verdict or indictment. The court may
 Cite as: 598 U. S. ____ (2022) 7

THOMAS, J., dissenting

the jurors’ testimony about the foreperson’s jury-room com-
ments. The majority overcame that difficulty by simply im-
agining admissible evidence, such as “the testimony of a
victim’s family member,” that Cunningham could conceiva-
bly develop on remand. Id., at 661–662.3
Judge Kethledge dissented in part. Regarding Cunning-
ham’s outside-information claim, Judge Kethledge ex-
plained that AEPDA forbade the majority’s reliance on Cir-
cuit precedent and that Remmer would not compel all
fairminded jurists to agree that Cunningham was entitled
to an evidentiary hearing. 23 F. 4th, at 679–682. Regard-
ing the family-relationship claim, Judge Kethledge agreed
that Cunningham was diligent under Michael Williams but
concluded that this claim failed because its entire factual
basis was barred by Rule 606(b) and the time-honored pol-
icy against receiving juror testimony to undermine a ver-
dict. 23 F. 4th, at 682–685.
The State petitioned for a writ of certiorari, which the
Court now denies. I would instead grant the petition and
summarily reverse for the reasons that follow and those in
Judge Kethledge’s dissent below.
II
Although the procedural history of this case is compli-
cated, the Sixth Circuit’s errors were not. The panel major-
ity’s reasons for ordering an evidentiary hearing on either
——————
not receive a juror’s affidavit or evidence of a juror’s statement on these
matters.
“(2) Exceptions. A juror may testify about whether:
“(A) extraneous prejudicial information was improperly brought to the
jury’s attention;
“(B) an outside influence was improperly brought to bear on any juror;
or
“(C) a mistake was made in entering the verdict on the verdict form.”
3 The majority denied relief on Cunningham’s other claims, though it

lamented that “the harsh standards of AEDPA as elaborated by the [Su-
preme] Court” required it to do so. 23 F. 4th, at 671.
8 SHOOP v. CUNNINGHAM

THOMAS, J., dissenting

of Cunningham’s juror-bias claims are indefensible.4
A
Because the Ohio Court of Appeals rejected Cunning-
ham’s outside-information claim on the merits, the exacting
standard of 28 U. S. C. §2254(d), often called AEDPA defer-
ence, applied. That standard bars federal habeas relief for
any claim “adjudicated on the merits in State court proceed-
ings unless the adjudication of the claim—
“(1) resulted in a decision that was contrary to, or in-
volved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme
Court of the United States; or
“(2) resulted in a decision that was based on an un-
reasonable determination of the facts in light of the ev-
idence presented in the State court proceeding.”
We have explained that “ ‘clearly established Federal law,’ ”
for purposes of §2254(d)(1), “refers to the holdings, as op-
posed to the dicta, of this Court’s decisions as of the time of
the relevant state-court decision.” Williams v. Taylor, 529
U. S. 362, 412 (2000). When assessing a state-court deci-
sion under §2254(d), federal habeas courts may not rely ei-
ther on lower court precedents, see, e.g., Parker v. Mat-
thews, 567 U. S. 37, 48–49 (2012) (per curiam), or on
decisions of this Court that postdate the relevant state-
court adjudication. See, e.g., Shoop v. Hill, 586 U. S. ___,

——————
4 For present purposes, and because no party argues otherwise, I accept

the characterization of Cunningham’s juror-bias allegations as present-
ing two distinct “claims,” only one of which is governed by §2254(d). I
note, however, the apparent tension between that characterization and
the District Court’s rationale for allowing the amendment that added
Cunningham’s second “claim” to relate back to the filing of his habeas
petition. See Cunningham v. Hudson, No. 3:06–cv–00167 (ND Ohio, July
21, 2009), ECF Doc. 120, p. 4 (construing the amendment as “con-
cern[ing] evidence of juror misconduct pled in the original Petition” and
as “tied to [the same] core of operative facts”).
 Cite as: 598 U. S. ____ (2022) 9

THOMAS, J., dissenting

___–___ (2019) (per curiam) (slip op., at 5–7). Nor may a
federal habeas court extend the rationales of this Court’s
precedents. White v. Woodall, 572 U. S. 415, 426 (2014).
The bottom line: Where §2254(d) governs, habeas relief can
issue only if the relevant state-court decision—judged
solely by the four corners of this Court’s holdings—“was so
lacking in justification that there was an error well under-
stood and comprehended in existing law beyond any possi-
bility for fairminded disagreement.” Harrington v. Richter,
562 U. S. 86, 103 (2011). “If this standard is difficult to
meet, that is because it was meant to be.” Id., at 102.
The Sixth Circuit flouted this standard when it held that
the Ohio postconviction courts unreasonably applied Rem-
mer in this case. In Remmer, during a trial for tax evasion,
an unknown person offered a juror a bribe to acquit the de-
fendant. 347 U. S., at 228. The juror reported the incident
to the court, the court reported the incident to the prosecu-
tors ex parte, and a Federal Bureau of Investigation agent
interviewed the juror—all while the trial was ongoing and
all without the defendant’s knowledge. Ibid. The defend-
ant first learned of these events after the verdict, and he
moved for a new trial. Ibid. The District Court denied the
motion without holding a hearing, and the Ninth Circuit af-
firmed. Id., at 229. In a 21/2-page opinion, this Court va-
cated and remanded for the District Court “to hold a hear-
ing to determine whether the incident complained of was
harmful to the petitioner, and if after hearing it is found to
have been harmful, to grant a new trial.” Id., at 230.
As Judge Kethledge observed, “a fairminded jurist could
easily conclude” that Remmer did not require a hearing on
Cunningham’s outside-information claim. 23 F. 4th, at 681.
Remmer ordered a hearing to weigh the impact of undis-
puted outside contacts with a juror. Here, by contrast, Cun-
ningham merely alleged that outside contact had occurred,
based on a speculative reading of an ambiguous postverdict
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THOMAS, J., dissenting

statement. And Remmer quite obviously did not clearly es-
tablish the Sixth Circuit’s rule that any “colorable claim of
extraneous influence” mandates “a Remmer hearing.” 23 F.
4th, at 651 (majority opinion). “ ‘[I]f a habeas court must
extend a rationale before it can apply to the facts at hand,’
then by definition the rationale was not ‘clearly established
at the time of the state-court decision.’ ” Woodall, 572 U. S.,
at 426 (quoting Yarborough v. Alvarado, 541 U. S. 652, 666
(2004)).
But the Sixth Circuit’s error went even deeper. Not only
did Remmer not clearly establish the Sixth Circuit’s “any
colorable claim” rule, it is not even clear that Remmer es-
tablished any constitutional rule. Words like “constitu-
tional” and “due process” are nowhere to be found in the
Court’s laconic opinion. One could just as naturally—per-
haps more naturally—read Remmer as a case about new-
trial motion practice under the Federal Rules of Criminal
Procedure than as one about the requirements of constitu-
tional due process. A rigorous §2254(d)(1) analysis, there-
fore, likely would take no account of Remmer at all.5
Here, the Sixth Circuit not only relied on Remmer, it
stretched it far beyond its four corners and used Circuit
——————
5 In its Remmer analysis, the Sixth Circuit cited three other decisions

of this Court, none of which provides clearly established federal law sup-
porting the decision below. Contrary to the panel majority’s apparent
understanding, Smith v. Phillips, 455 U. S. 209 (1982), did not hold that
Remmer was binding on state courts as a matter of constitutional due
process; rather, it held only that a state court did not violate due process
by responding to an allegation of juror impartiality with a hearing that
would have satisfied Remmer had it occurred in the federal system. 455
U. S., at 218. Dicta in United States v. Olano, 507 U. S. 725 (1993), ar-
guably characterize Remmer as a constitutional decision, see 507 U. S.,
at 738–739, but even that is doubtful and, regardless, dicta are not
“clearly established Federal law” under §2254(d)(1). See Williams v.
Taylor, 529 U. S. 362, 412 (2000). The actual holdings of Olano have
nothing to do with the Constitution, and the third case, Rushen v. Spain,
464 U. S. 114 (1983) (per curiam), also explicitly decided no constitu-
tional question. Id., at 117, n. 2.
 Cite as: 598 U. S. ____ (2022) 11

THOMAS, J., dissenting

precedent to patch the seams. Such “plain and repetitive
error” deserves summary reversal. Parker, 567 U. S., at
49.6
B
The Sixth Circuit’s grant of an evidentiary hearing on
Cunningham’s family-relationship claim also merits sum-
mary reversal. To start, the panel majority’s reasoning
simply does not support the relief it ordered. Section
2254(e)(2) bars a federal evidentiary hearing in most cases
where the petitioner “has failed to develop the factual basis
of a claim in State court proceedings.” But even “where an
applicant . . . is not barred from obtaining an evidentiary
hearing by . . . §2254(e)(2), the decision to grant such a
hearing rests in the discretion of the district court.” Schriro
v. Landrigan, 550 U. S. 465, 468 (2007); see also Rule 6(a),
Rules Governing Section 2254 Cases. Here, the Sixth Cir-
cuit held (and the State does not now contest) that Cun-
ningham was diligent in developing his family-relationship
claim under Michael Williams. That case, however, ad-
dressed whether “§2254(e)(2) barred the petitioner’s re-
quest for a federal evidentiary hearing.” Cullen v. Pinhol-
ster, 563 U. S. 170, 183 (2011) (emphasis added); see
Michael Williams, 529 U. S., at 424. Thus, the most the
Sixth Circuit’s holding justified—as a matter of law—was a
remand for the District Court to determine, in its discre-
tion, whether to grant an evidentiary hearing. But the
——————
6 Fortunately, the Court’s failure to correct this error does not leave the

Sixth Circuit bound to follow it. In an earlier §2254(d)(1) case involving
a Remmer claim, the Sixth Circuit acknowledged that “how [it] would
apply [its] own Sixth Circuit precedents [did] not guide the analysis,” and
it denied relief because it found “no Supreme Court precedent that re-
quire[d] a Remmer hearing on the facts before [it].” Garcia v. Andrews,
488 F. 3d 370, 377 (2007). Thus, future Sixth Circuit panels are free to
disregard the Remmer analysis below as nonbinding. See Lakeside Sur-
faces, Inc. v. Cambria Co., 16 F. 4th 209, 218 (2021) (“In situations where
two of our published decisions are in tension, we follow the earlier one”).
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THOMAS, J., dissenting

Sixth Circuit usurped that discretion, mandating a hearing
simply because §2254(e)(2) did not forbid one.
Worse and more importantly, any evidentiary hearing on
Cunningham’s family-relationship claim would be an abuse
of discretion no matter what court ordered it. The entire
factual basis for this claim consists of the foreperson’s state-
ments in the jury room as recalled in two other jurors’
years-later testimony. See ECF Doc. 200, at 12–14. As
Judge Kethledge explained, those comments are unques-
tionably barred from judicial consideration “by the
longstanding ‘rule against admission of jury testimony to
impeach a verdict,’ ” a rule embodied in part by Federal
Rule of Evidence 606(b). 23 F. 4th, at 682 (quoting Tanner
v. United States, 483 U. S. 107, 121 (1987)). And, once those
comments are disregarded, Cunningham’s claim amounts
to no more than a bare, unspecified, and unsubstantiated
allegation that the foreperson had some sort of relationship
with some victims or their families and that it prejudiced
him in some way. Such “[t]hreadbare recitals” are not
enough to “unlock the doors of discovery” in ordinary civil
litigation. Ashcroft v. Iqbal, 556 U. S. 662, 678–679 (2009).
They are certainly not enough under the more rigorous
standards governing federal habeas cases. See Mayle v. Fe-
lix, 545 U. S. 644, 649 (2005); Bracy v. Gramley, 520 U. S.
899, 904 (1997).
The Sixth Circuit nonetheless awarded Cunningham a
hearing on the mere possibility that it might turn up some
kind of admissible evidence supporting some sort of cog-
nizable claim. See 23 F. 4th, at 661–662. On that basis
alone, the Sixth Circuit decreed that the jury foreperson
and even the family members of the victims must submit to
cross-examination about their memories of painful,
decades-old events. See ibid. Their every word will be
picked apart in the hunt for further excuses to drag out this
16-year-old federal habeas action. The Sixth Circuit’s deci-
 Cite as: 598 U. S. ____ (2022) 13

THOMAS, J., dissenting

sion is more than an error—it is an injustice. It shows pro-
found disrespect, not merely to the State, but to citizens
who perform the difficult duty of serving on capital juries,
to the surviving victims of Cunningham’s atrocious crimes,
to the memories of the two young girls whose lives he
snuffed out, and to their families who still, two decades
later, have no assurance that justice will ever be done.
III
By denying certiorari, the Court once again permits the
nullification of its jurisprudence. Just a few months ago, I
dissented from the Court’s refusal to correct a flagrant mis-
application of AEDPA by the Sixth Circuit. See Shoop v.
Cassano, 596 U. S. ___ (2022) (opinion dissenting from de-
nial of certiorari). Today, the Court denies review of a case
just as flagrant, if not more so. We should not shirk our
responsibility to correct classic AEDPA abuses, especially
when a lower court brazenly commits errors for which we
have repeatedly reversed it. See Cassano v. Shoop, 10
F. 4th 695, 696–697 (CA6 2021) (Griffin, J., dissenting from
denial of rehearing en banc) (collecting 22 cases in which
this Court reversed the Sixth Circuit “for not applying the
deference to state-court decisions mandated by AEDPA,”
including 12 summary reversals).
That said, while I disagree with the Court’s newfound tol-
erance for recidivism, primary responsibility for the Sixth
Circuit’s errors rests with the Sixth Circuit. That court’s
record of “plain and repetitive” AEDPA error, Parker, 567
U. S., at 49, is an insult to Congress and a disservice to the
people of Michigan, Ohio, Kentucky, and Tennessee. Fed-
eral habeas review imposes “profound societal costs,” “frus-
trat[ing] both the States’ sovereign power to punish offend-
ers and their good-faith attempts to honor constitutional
rights.” Calderon v. Thompson, 523 U. S. 538, 554, 555–
556 (1998) (internal quotation marks omitted). It also “dis-
turbs the State’s significant interest in repose for concluded
14 SHOOP v. CUNNINGHAM

THOMAS, J., dissenting

litigation, denies society the right to punish some admitted
offenders, and intrudes on state sovereignty to a degree
matched by few exercises of federal judicial authority.”
Richter, 562 U. S., at 103 (internal quotation marks omit-
ted). These problems are serious enough even when courts
carefully observe the limits that Congress and this Court
have laid down. When a lower court wields its habeas ju-
risdiction in overt defiance of those limits, the affront to fed-
eralism and the rule of law becomes intolerable.
The Sixth Circuit must do better, with or without this
Court’s help. Unfortunately, the Sixth Circuit’s habeas ju-
risprudence suggests that certain circuit judges’ “taste for
disregarding AEDPA,” Rapelje v. Blackston, 577 U. S. 1019,
1021 (2015) (Scalia, J., dissenting from denial of certiorari),
has found its natural complement in other judges’ distaste
for correcting errors en banc, no matter how blatant, repet-
itive, or corrosive of circuit law. See, e.g., Issa v. Bradshaw,
910 F. 3d 872 (CA6 2018) (denying rehearing en banc);
Mitts v. Bagley, 626 F. 3d 366 (CA6 2010) (same). Of course,
reluctance in deploying en banc review is understandable.
But only to a point. The Sixth Circuit’s habeas problems
are well past that point—as evidenced by the depressing
regularity with which petitions like this one reach us.
The Court should have delivered that message by sum-
marily reversing the judgment below. Accordingly, I re-
spectfully dissent from denial of certiorari.