Three Justices dissent from denial of cert in Tennessee felony-murder capital case

The Supreme Court this morning issued this order list with a lot of certiorari denials (and grants in two related cases involving government social-media activity).  There was one notable statement in dissent from the denial of certiorari by Justice Sotomayor, joined by Justices Kagan and Jackson, in Burns v. Mays, No. 22–5891.  The seven-page dissent starts this way:

Petitioner Kevin Burns, a defendant sentenced to death for felony murder, brought a 28 U.S.C. §2254 petition claiming inadequate assistance of counsel at the penalty phase of his trial.  Burns asserts that counsel failed to present mitigating evidence tending to show that he did not shoot either of the two victims killed during a robbery in which he participated. Such evidence does not bear on Burns’ guilt, since his participation in the underlying robbery suffices to render him guilty of felony murder.  Evidence that Burns did not pull the trigger, however, was plainly relevant to the jury’s determination whether to sentence him to death.  The Sixth Circuit avoided this obvious conclusion only by mischaracterizing Burns’ claim as being about counsel’s failure to introduce residual doubt evidence (i.e., evidence that Burns was not, in fact, guilty of felony murder).  From there, the Sixth Circuit concluded that the claim must fail because this Court has never established a right to introduce residual doubt evidence at sentencing.

Burns argues, and the State does not contest, that the Sixth Circuit’s analysis turned on two erroneous legal assumptions and clearly conflicts with several decisions of this Court.  Burns asks this Court to take summary action to correct these fundamental legal errors so that his claim may be fairly considered before the State executes him. The Court, however, declines to intervene.  I would summarily vacate the error-laden (and precedential) decision below and remand for further consideration of Burns’ claim.  I respectfully dissent from the Court’s failure to do so.