Opinions Relating to Orders - 2021

Storey v. Lumpkin

The petition for a writ of certiorari is denied. Statement of JUSTICE SOTOMAYOR respecting the denial of certiorari. The facts of this case offer a cautionary tale for those Courts of Appeals that have yet to define what constitutes a restricted “second or successive habeas corpus application,” 28 U. S. C. §2244(b)(2), in the context of prosecutorial misconduct. I write to underscore how erroneous the Fifth Circuit’s definition is and how it unfairly deprives individuals of an opportunity to raise serious claims of prosecutorial malfeasance in federal habeas proceedings. After a jury convicted petitioner Paul David Storey of murdering Jonas Cherry in the course of a robbery, prosecutors argued for a death sentence. In the State’s punishmentphase closing argument, a prosecutor told the jury: “[I]t should go without saying that all of Jonas’s family and everyone who loved him believe the death penalty is appropriate.” Ex parte Storey, 584 S. W. 3d 437, 447 (Tex. Crim. App. 2019) (Walker, J., dissenting). The jury sentenced Storey to death. In December 2016, eight years after trial and months before Storey’s scheduled execution, Storey’s counsel learned that the prosecutor’s assertion during the punishmentphase closing arguments was false.