In the recent case of MARCUS A. WELLONS v. HILTON HALL, WARDEN, on petition for writ of certiorari to the US Court of Appeals for the 11th Circuirt, docketed as Case No. 09-5731 and decided on January 19, 2010 (see: http://laws.findlaw.com/us/000/09-5731.html), the US Supreme Court, in a per curiam decision, held that from beginning to end, judicial proceedings conducted for the purpose of deciding whether a defendant shall be put to death must be conducted with dignity and respect. The disturbing facts of the case raised serious questions concerning the conduct of the trial, and the petition raised a serious question about whether the Court of Appeals carefully reviewed those facts before addressing petitioner's constitutional claims.
Petitioner Marcus Wellons was convicted in Georgia state court of rape and murder and sentenced to death. Although the trial looked typical, there were unusual events going on behind the scenes. Only after the trial did defense counsel learn that there had been unreported ex parte contacts between the jury and the judge, that jurors and a bailiff had planned a reunion, and that "either during or immediately following the penalty phase, some jury members gave the trial judge chocolate shaped as male genitalia and the bailiff chocolate shaped as female breasts," 554 F. 3d 923, 930 (CA11 2009). The judge had not reported any of this to the defense.
The State Supreme Court affirmed Wellons’ conviction and sentence. Wellons v. State, 266 Ga. 77, 88, 463 S. E. 2d 868, 880 (1995). He sought state habeas relief and moved to develop evidence. But the court held that the matter had been decided on appeal and thus was res judicata. See 554 F. 3d, at 932. He raised the issue again in his federal habeas petition, seeking discovery and an evidentiary hearing. But the District Court "concluded that Wellons' claims ... were procedurally barred, and accordingly denied his motion for an evidentiary hearing on these claims." Id., at 933.1 Before the Eleventh Circuit, Wellons "argue[d] that the district court erred in denying his motions for discovery and an evidentiary hearing to develop his judge, juror, and bailiff misconduct claims because they are not procedurally barred." Id., at 935. The court disagreed, holding that Wellons' claims were procedurally barred. Ibid.
Although Wellons appealed the denial of "his motions for discovery and an evidentiary hearing," 554 F. 3d, at 935, the Eleventh Circuit did not purport to address the merits of that issue at all.2 The court stated only that "[e]ven if we assume that Wellons's misconduct claims are not procedurally barred, they do not entitle Wellons to habeas relief." Id., at 936 (emphasis added). This opaque statement appears to address only whether petitioner was entitled to ultimate relief in the form of a new trial, not whether petitioner's allegations, combined with the facts he had learned, entitled him to the discovery and evidentiary hearing that he sought.
The Supreme Court held the standard for an order granting certiorari, vacating the judgment below, and remanding the case (GVR) remains as it always had been: A GVR is appropriate when "intervening developments ... reveal a reasonable probability that the decision below rests upon a premise that the lower court would reject if given the opportunity for further consideration, and where it appears that such a redetermination may determine the ultimate outcome" of the matter. Lawrence v. Chater, 516 U. S. 163, 167 (1996) (per curiam). As already discussed, there is, at least, a "reasonable probability," ibid., that the denial of discovery and an evidentiary hearing rested in part on the Cone error. And in light of the unusual facts of the case, a "redetermination may determine the ultimate outcome," 516 U. S., at 167; cf. Williams v. Taylor, 529 U. S. 420, 442 (2000) (holding that several "omissions as a whole disclose the need for an evidentiary hearing"); Smith v. Phillips, 455 U. S. 209, 215 (1982) ("This Court has long held that the remedy for allegations of juror partiality is a hearing in which the defendant has an opportunity to prove actual bias").
Both dissenting opinions suggest that if there was a strong case for discovery and an evidentiary hearing, then the Court "should summarily reverse or set the case for argument." Post, at 2 (opinion of Scalia, J.); see also post, at 4-5 (opinion of Alito, J.). But as the Court had explained, "a GVR order conserves the scarce resources of this Court," "assists the court below by flagging a particular issue that it does not appear to have fully considered," and "assists this Court by procuring the benefit of the lower court's insight before we rule on the merits." Lawrence, supra, at 167.
In fine, the petition for writ of certiorari to the United States Court of Appeals for the Eleventh Circuit and the motion of petitioner for leave to proceed in forma pauperis were granted. The judgment was vacated, and the case was remanded to the Eleventh Circuit for further consideration in light of Cone v. Bell, 556 U. S., at ___ (slip op., at 17-18).
