On April 23, 2014, the Supreme Court (Scalia, with Roberts, Kennedy, Thomas, Alito and Kagan) issued an opinion reversing the Sixth Circuit’s ruling that Robert Woodall was entitled to habeas relief on his claim that his Fifth Amendment rights had been violated by the trial court’s refusal to instruct the jury during the sentencing phase that it could not drawn an adverse inference from Woodall’s silence. White v. Woodall.
The Supreme Court did not decide whether or not such an instruction was in fact constitutionally required. Instead, it ruled that the state court’s decision rejecting Woodall’s claim was not contrary to or an unreasonable application of the relevant Supreme Court precedent in this area. Although the Supreme Court held in Estelle v. Smith, 451 U.S. 454, 463 (1981), that the privilege against self-incrimination applies to the penalty phase of a capital trial, the Supreme Court observed here that “it is not uncommon for a constitutional rule to apply somewhat differently at the penalty phase than it does at the guilt phase.” Further, it has never expressly held that Carter v. Kentucky, 450 U.S. 288 (1981), which governs non-adverse inference instructions at the guilt phase, applies to the sentencing phase. As for Mitchell v. United States, 526 U.S. 314 (1999), which found it unconstitutional for a judge at sentencing to draw an adverse inference from silence about facts of the crime, the case expressly left open the possibility that it would be proper to draw inferences from silence on issues such as lack of remorse. The Supreme Court rejected Woodall’s argument that it was unreasonable for the state court to refuse to extend the governing legal principal to a context where it should have controlled. The Supreme Court explained:
[T]his Court has never adopted the unreasonable refusal-to-extend rule on which respondent relies. It has not been so much as endorsed in a majority opinion, let alone relied on as a basis for granting habeas relief. To the extent the unreasonable-refusal-to-extend rule differs from the one embraced in Williams [v. Taylor, 529 U.S. 362 (2000)] and reiterated many times since, we reject it. Section 2254(d)(1) provides a remedy for instances in which a state court unreasonably applies this Court's precedent; it does not require state courts to extend that precedent or license federal courts to treat the failure to do so as error.
The Supreme Court concluded:
Perhaps the logical next step from Carter, Estelle, and Mitchell would be to hold that the Fifth Amendment requires a penalty-phase no-adverse-inference instruction in a case like this one; perhaps not. Either way, we have not yet taken that step, and there are reasonable arguments on both sides—which is all Kentucky needs to prevail in this AEDPA case. The appropriate time to consider the question as a matter of first impression would be on direct review, not in a habeas case governed by §2254(d)(1).
Breyer, joined by Ginsburg and Sotomayor, dissented.