(Slip Opinion)
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` OCTOBER TERM, 2014
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`Syllabus
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`1
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` NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
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` being done in connection with this case, at the time the opinion is issued.
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` The syllabus constitutes no part of the opinion of the Court but has been
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` prepared by the Reporter of Decisions for the convenience of the reader.
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` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
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`SUPREME COURT OF THE UNITED STATES
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` Syllabus
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`JENNINGS v. STEPHENS, DIRECTOR, TEXAS
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`DEPARTMENT OF CRIMINAL JUSTICE,
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`CORRECTIONAL INSTITUTIONS DIVISION
`
`
`CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
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`THE FIFTH CIRCUIT
` No. 13–7211. Argued October 15, 2014—Decided January 14, 2015
`
`Petitioner Jennings sought federal habeas relief based on three theories
`of ineffective assistance of counsel during the punishment phase of
`his state capital murder trial. The District Court granted relief on
`his two “Wiggins theories”—that counsel failed to present evidence of
`a deprived background and failed to investigate evidence of mental
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`impairment, see Wiggins v. Smith, 539 U. S. 510—but not on his
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`“Spisak theory”—that counsel expressed resignation to a death sen-
`tence during his closing argument, see Smith v. Spisak, 558 U. S.
`139. The court ordered Texas to release Jennings unless, within 120
`days, the State granted him a new sentencing hearing or commuted
`his death sentence. The State attacked the Wiggins theories on ap-
`peal, but Jennings defended on all three theories. The Fifth Circuit
`reversed the grant of habeas corpus under the two Wiggins theories
`
`and determined that it lacked jurisdiction over the Spisak claim.
`Implicitly concluding that raising this argument required a cross-
`appeal, the court noted that Jennings neither filed a timely notice of
`appeal, see Fed. Rule App. Proc. 4(a)(1)(A), nor obtained the certifi-
`cate of appealability required by 28 U. S. C. §2253(c).
`
`Held: Jennings’ Spisak theory was a defense of his judgment on alter-
`
`native grounds, and thus he was not required to take a cross-appeal
`or obtain a certificate of appealability to argue it on appeal. Pp. 4–
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`12.
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`(a) Because Jennings is an appellee who did not cross-appeal, he
`may “urge” his Spisak theory unless doing so would enlarge his rights
`or lessen the State’s rights under the District Court’s judgment.
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` JENNINGS v. STEPHENS
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`Syllabus
` United States v. American Railway Express Co., 265 U. S. 425, 435.
`
`Jennings’ rights under the judgment were release, retrial, or commu-
`tation within a fixed time, at the State’s option, and his Spisak claim,
`if accepted, would give him no more. The State’s rights under the
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` judgment were to retain Jennings in custody pending retrial or to
` commute his sentence; the Spisak claim, if accepted, would not fur-
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`ther encumber the State. The State contends that, because the Dis-
`trict Court’s opinion entitled Jennings only to retrial (or resentenc-
`
`ing) without the challenged errors, each additional basis asserted by
`Jennings sought to lessen the State’s rights at retrial, and thus re-
`
` quires a cross-appeal. But this view is contrary to the ordinary be-
`havior of courts, which reduce their opinions and verdicts to judg-
`ments precisely to define the parties’ rights and liabilities. A
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`prevailing party seeks to enforce a district court’s judgment, not its
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`reasoning. Rogers v. Hill, 289 U. S. 582, 587. Thus, any potential
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`claim that would have entitled Jennings to a new sentencing proceed-
`ing could have been advanced consistent with American Railway.
`Pp. 4–9.
`(b) Helvering v. Pfeiffer, 302 U. S. 247, and Alexander v. Cosden
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`Pipe Line Co., 290 U. S. 484, would be in considerable tension with
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`American Railway if they were read, as the State insists, as requiring
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`
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`Jennings to raise his Spisak claim on cross-appeal even if his rights
`under the court’s judgment would remain undisturbed. Pfeiffer and
`Alexander involved disputes over multiple discrete federal tax liabili-
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`ties, and the assertion of additional tax liabilities or defenses neces-
`sarily sought to enlarge or to reduce the rights of the Internal Reve-
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`nue Service Commissioner.
`In contrast, Jennings, whether
`prevailing on a single theory or all three, sought the same, indivisible
`relief: a new sentencing hearing. Thus, Pfeiffer and Alexander cannot
`be viewed as contradicting the ‘ “inveterate and certain’ ” American
`
`Railway rule. Greenlaw v. United States, 554 U. S. 237, 245. Pp. 9–
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`11.
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`(c) The question whether 28 U. S. C. §2253(c)’s certificate of ap-
`pealability requirement applies to cross-appeals need not be ad-
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`dressed here, for it is clear that the provision does not embrace the
`defense of a judgment on alternative grounds. Pp. 11–12.
`537 Fed. Appx. 326, reversed and remanded.
`SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
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`and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS,
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`J., filed a dissenting opinion, in which KENNEDY and ALITO, JJ., joined.
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` Cite as: 574 U. S. ____ (2015)
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`Opinion of the Court
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`1
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` NOTICE: This opinion is subject to formal revision before publication in the
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` preliminary print of the United States Reports. Readers are requested to
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` notify the Reporter of Decisions, Supreme Court of the United States, Wash-
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` ington, D. C. 20543, of any typographical or other formal errors, in order
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` that corrections may be made before the preliminary print goes to press.
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`SUPREME COURT OF THE UNITED STATES
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`_________________
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` No. 13–7211
`_________________
`
` ROBERT MITCHELL JENNINGS, PETITIONER v.
`
`
`WILLIAM STEPHENS, DIRECTOR, TEXAS DE-
`
`PARTMENT OF CRIMINAL JUSTICE, COR-
`
` RECTIONAL INSTITUTIONS DIVISION
`
`ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
`
`
`APPEALS FOR THE FIFTH CIRCUIT
`
`
`[January 14, 2015]
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` JUSTICE SCALIA delivered the opinion of the Court.
`Petitioner Robert Mitchell Jennings was sentenced to
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`death for capital murder. He applied for federal habeas
`corpus relief on three theories of ineffective assistance of
`counsel, prevailing on two. The State appealed, and Jen-
`nings defended his writ on all three theories. We consider
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`whether Jennings was permitted to pursue the theory that
`the District Court had rejected without taking a cross-
`appeal or obtaining a certificate of appealability.
`I
`In July 1988, petitioner Robert Mitchell Jennings en-
`
`tered an adult bookstore to commit a robbery. Officer
`Elston Howard, by unhappy coincidence, was at the same
`establishment to arrest the store’s clerk. Undeterred,
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`Jennings shot Howard four times, robbed the store, and
`escaped. Howard died from his wounds.
`Howard was merely the most recent victim of Jennings’
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`criminality. The State adjudicated Jennings a delinquent
`at 14, convicted him of aggravated robbery at 17, and of
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`

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` JENNINGS v. STEPHENS
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`Opinion of the Court
`additional aggravated robberies at 20. He murdered
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`Officer Howard only two months after his most recent
`release from prison.
`
`
`Jennings was arrested, tried, and convicted of capital
`murder, and the State sought the death penalty. During
`the punishment phase, the State introduced evidence of
`Jennings’ lengthy and violent criminal history. Jennings’
`
`attorney called only the prison chaplain, who testified
`about Jennings’ improvement and that Jennings was not
`“incorrigible.” Jennings’ attorney acknowledged the diffi-
`culty of his sentencing defense in his closing remarks,
`commenting that he could not “quarrel with” a death
`sentence, but was nonetheless pleading for mercy for his
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`client. The jury returned a special verdict, consistent with
`Texas law, that Jennings acted deliberately in the murder
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`and that he would present a continuing threat to society.
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`The trial court sentenced Jennings to death. Texas courts
`affirmed Jennings’ conviction and sentence and denied
`postconviction relief. Jennings v. State, No. AP–70911
`(Tex. Crim. App., Jan. 20, 1993); Ex parte Jennings, 2008
`WL 5049911 (Tex. Crim. App., Nov. 26, 2008).
`
`Jennings applied for federal habeas corpus relief, assert-
`ing, as relevant here, three theories of ineffective assis-
`tance of counsel in the punishment phase of his trial.
`Jennings first claimed trial counsel was ineffective for
`failing to present evidence of his disadvantaged back-
`ground, including that his conception was the product of
`his mother’s rape, that his mother was only 17 when he
`was born, and that he grew up in poverty. Jennings of-
`
`fered his mother and sister as witnesses.
`
`Jennings next argued that trial counsel was ineffective
`for failure to investigate and to present evidence of Jen-
`nings’ low intelligence and organic brain damage. His
`trial attorney admitted in affidavit that he failed to review
`the case files from Jennings’ prior convictions, which
`contained a report suggesting Jennings suffered from mild
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` Cite as: 574 U. S. ____ (2015)
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`Opinion of the Court
`mental retardation and mild organic brain dysfunction.
`(The report also suggested that Jennings malingered,
`feigning mental illness in order to delay proceedings.)
`Jennings argued that trial counsel should have examined
`Jennings’ prior case files, investigated Jennings’ mental
`
`health problems, and presented evidence of mental im-
`pairment in the punishment phase.
`Finally, Jennings argued that counsel was constitution-
`
`ally ineffective for stating that he could not “quarrel with”
`a death sentence. According to Jennings, this remark
`expressed resignation to—even the propriety of—a death
`sentence.
`
`Jennings cited our decision in Wiggins v. Smith, 539
`
`U. S. 510 (2003), as establishing constitutional ineffec-
`tiveness when counsel fails to investigate or to introduce
`substantial mitigating evidence in a sentencing proceed-
`ing. Though he did not cite our decision in Smith v.
`Spisak, 558 U. S. 139 (2010), he also argued that counsel’s
`closing remarks amounted to constitutional ineffective-
`ness. The parties referred to these alleged errors as the
`“Wiggins errors” and the “Spisak error”; we use the same
`terminology.
`
`The federal habeas court granted Jennings relief on
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`both of his Wiggins theories, but denied relief on his
`Spisak theory. Jennings v. Thaler, 2012 WL 1440387 (SD
`Tex., Apr. 23, 2012). The court ordered that the State
`“shall release Jennings from custody unless, within 120
`days, the State of Texas grants Jennings a new sentencing
`hearing or resentences him to a term of imprisonment as
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`provided by Texas law at the time of Jennings[’] crime.”
`
`Id., at *7.
`
`The State appealed, attacking both Wiggins theories
`(viz., trial counsel’s failure to present evidence of a de-
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`prived background and failure to investigate evidence of
`mental impairment). Jennings argued before the Fifth
`
`Circuit that the District Court correctly found constitu-
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` JENNINGS v. STEPHENS
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`Opinion of the Court
`tional ineffectiveness on both Wiggins theories, and ar-
`gued again that trial counsel performed ineffectively
`under his Spisak theory. The Fifth Circuit reversed the
`grant of habeas corpus under the two Wiggins theories
`and rendered judgment for the State. 537 Fed. Appx. 326,
`334–335 (2013). The court determined that it lacked
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`jurisdiction over Jennings’ Spisak theory. Id., at 338–339.
`
`Implicitly concluding that raising this argument required
`taking a cross-appeal, the panel noted that Jennings failed
`to file a timely notice of appeal, see Fed. Rule App. Proc.
`4(a)(1)(A), and failed to obtain a certificate of appealability
`as required by 28 U. S. C. §2253(c). Section 2253(c) pro-
`vides, as relevant here, that “[u]nless a circuit justice or
`judge issues a certificate of appealability, an appeal may
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`not be taken to the court of appeals from . . . the final
`order in a habeas corpus proceeding.”
`
`We granted certiorari, 572 U. S. ___, (2014), to decide
`whether Jennings was required to file a notice of cross-
`appeal and seek a certificate of appealability to pursue his
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`Spisak theory.
`
`
`
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`
`
`II
`
`The rules governing the argumentation permissible for
`appellees urging the affirmance of judgment are familiar,
`though this case shows that familiarity and clarity do not
`go hand-in-hand.
`
`A
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`An appellee who does not take a cross-appeal may “urge
`in support of a decree any matter appearing before the
`record, although his argument may involve an attack upon
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`the reasoning of the lower court.” United States v. Ameri-
`
`can Railway Express Co., 265 U. S. 425, 435 (1924). But
`an appellee who does not cross-appeal may not “attack the
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`decree with a view either to enlarging his own rights
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`thereunder or of lessening the rights of his adversary.”
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` Cite as: 574 U. S. ____ (2015)
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`Opinion of the Court
`Ibid. Since Jennings did not cross-appeal the denial of his
`Spisak theory, we must determine whether urging that
`theory sought to enlarge his rights or lessen the State’s
`under the District Court’s judgment granting habeas
`relief.
`
`The District Court’s opinion, in its section labeled “Or-
`
`der,” commanded the State to “release Jennings from
`custody unless, within 120 days, the State of Texas grants
`Jennings a new sentencing hearing or resentences him to
`a term of imprisonment as provided by Texas law at the
`time of Jennings[’] crime.” 2012 WL 1440387, at *7. The
`District Court’s corresponding entry of judgment con-
`tained similar language. App. 35. The intuitive answer to
`the question whether Jennings’ new theory expands these
`rights is straightforward: Jennings’ rights under the
`judgment were what the judgment provided—release,
`resentencing, or commutation within a fixed time, at the
`
`State’s option; the Spisak theory would give him the same.
`Similarly, the State’s rights under the judgment were to
`retain Jennings in custody pending resentencing or to
`commute his sentence; the Spisak theory would allow no
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`less.
`
`
`The State objects to this straightforward result. A
`conditional writ of habeas corpus, it argues, does not
`merely entitle a successful petitioner to retrial (or resen-
`tencing), but it entitles him to retrial (or resentencing)
`without the challenged errors. Because each basis for
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`habeas relief imposes an additional implied obligation on
`the State (not to repeat that error), each basis asserted by
`
`a successful petitioner seeks to lessen the State’s rights at
`retrial, and therefore each additional basis requires a
`cross-appeal.
`
`This is an unusual position, and one contrary to the
`manner in which courts ordinarily behave. Courts reduce
`their opinions and verdicts to judgments precisely to
`define the rights and liabilities of the parties. Parties
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`5
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` JENNINGS v. STEPHENS
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`Opinion of the Court
`seeking to enforce a foreign court’s decree do not attempt
`to domesticate an opinion; they domesticate a judgment.
`Restatement (Third) of Foreign Relations Law of the
`United States §§ 481–482 (1987). A prevailing party seeks
`to enforce not a district court’s reasoning, but the court’s
`judgment. Rogers v. Hill, 289 U. S. 582, 587 (1933). This
`Court, like all federal appellate courts, does not review
`lower courts’ opinions, but their judgments. Chevron,
`U. S. A., Inc. v. Natural Resources Defense Council, Inc.,
`467 U. S. 837, 842 (1984). And so a rule that contravenes
`this structure, that makes the opinion part of the judg-
`
`ment, is peculiar—especially when it is applied to impose
`extrajudgment obligations on a sovereign State.
`
`The State’s argument might have force in a case where a
`district court explicitly imposes (or the appellee asks the
`appellate court explicitly to impose) a condition governing
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`the details of the retrial. But that case is not before us.
`The implications of the State’s position make clear why
`such orders are atypical, and why we should not infer such
`conditions from silence. Construing every federal grant of
`habeas corpus as carrying an attendant list of unstated
`acts (or omissions) that the state court must perform (or
`not perform) would substantially transform conditional
`habeas corpus relief from an opportunity “to replace an
`invalid judgment with a valid one,” Wilkinson v. Dotson,
`544 U. S. 74, 87 (SCALIA, J., concurring), to a general grant
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`of supervisory authority over state trial courts.
`In a variation on the same theme, the dissent posits
`
`that, apart from implied terms, a habeas petitioner who
`successfully defends a judgment on an alternative ground
`has expanded his rights under the judgment, because he
`has changed the judgment’s issue-preclusive effects. This
`theory confuses a party’s rights under a judgment—here,
`the right to release, resentencing, or commutation, at the
`State’s option—with preclusive effects that the judgment
`might have in future proceedings. That makes nonsense
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`6
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` Cite as: 574 U. S. ____ (2015)
`
`Opinion of the Court
`
` of American Railway. Whenever an appellee successfully
`defends a judgment on an alternative ground, he changes
`what would otherwise be the judgment’s issue-preclusive
`effects. Thereafter, issue preclusion no longer attaches to
`the ground on which the trial court decided the case, and
`
`instead attaches to the alternative ground on which the
`appellate court affirmed the judgment. Restatement
`(Second) of Judgments § 27 (1982). Thus, making altera-
`tion of issue-preclusive effects the touchstone of necessity
`for cross-appeal would require cross-appeal for every de-
`fense of a judgment on alternative grounds. That is, of
`course, the polar opposite of the rule we established in
`American Railway.
`
`Under the habeas court’s judgment, Jennings was enti-
`tled, at the State’s option, to either release, resentencing,
`
`or commutation of his sentence. Any potential claim that
`would have entitled Jennings to a new sentencing proceed-
`ing could have been advanced to “urge . . . support” of the
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`judgment within the meaning of American Railway. 265
`U. S., at 435. The dissent and the State contend that
`applying American Railway in this fashion will lead to a
`proliferation of frivolous appellate defenses in habeas
`cases. If so, that is a problem that can only be solved by
`Congress. Until it does so, we think it appropriate to
`adhere to the usual law of appeals.
`
`We think, however, that the danger is exaggerated. To
`begin with, not all defenses will qualify. A habeas appli-
`cant who has won resentencing would be required to take
`a cross-appeal in order to raise a rejected claim that would
`result in a new trial. Similarly, even if a habeas applicant
`has won retrial below, a claim that his conduct was consti-
`tutionally beyond the power of the State to punish would
`require cross-appeal. And even a successful applicant
`
`doing no more than defending his judgment on appeal is
`confined to those alternative grounds present in the rec-
`ord: he may not simply argue any alternative basis, re-
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`7
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`8
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` JENNINGS v. STEPHENS
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`Opinion of the Court
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` gardless of its origin. Ibid.
`Moreover, successful habeas applicants have an incen-
`
`tive to defend their habeas grants effectively, an objective
`that is not furthered by diverting an appellate court’s
`attention from a meritorious defense to a frivolous one.
`
`The dissent gives two examples of habeas petitioners who
`raised numerous ostensibly frivolous claims. Post, at 9.
`
`
`They prove nothing except the dissent’s inability to sub-
`stantiate its claim that our holding will foster the presen-
`tation of frivolous alternative grounds for affirmance. For
`both examples involved habeas petitioners who lost before
`the magistrate and were casting about for any basis that
`might justify a writ. We are talking here about habeas
`petitioners who have won before the district court. The
`notion that they can often be expected to dilute their
`defense of the (by-definition-nonfrivolous) basis for their
`victory by dragging in frivolous alternative grounds to
`support it is thoroughly implausible. Indeed, as the State
`
`and Jennings agree, it is rare that a habeas petitioner
`successful in the district court will even be called upon to
`
` defend his writ on appeal.
`And finally, we doubt that any more judicial time will be
`
`
`wasted in rejection of frivolous claims made in defense of
`judgment on an appeal already taken than would be wasted
`in rejection of similar claims made in (what the State and
`dissent would require) a separate proceeding for a certifi-
`cate of appealability. To be sure, as the dissent points out,
`post, at 9, the certificate ruling will be made by just one
`
`
`judge rather than three; but that judge will always be
`required to consider and rule on the alternative grounds,
`whereas the three-judge court entertaining the govern-
`ment’s habeas appeal will not reach the alternative
`grounds unless it rejects the ground relied on by the lower
`court. Not to mention the fact that in an already-pending
`appeal the court can give the back of its hand to frivolous
`claims en passant, whereas the certificate process requires
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`

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` Cite as: 574 U. S. ____ (2015)
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`Opinion of the Court
`the opening and disposition of a separate proceeding.
`
`
`In the end, the dissent tries to evade American Railway
`
`
`by asserting that habeas corpus is “unique.” Post, at 7.
`There are undoubtedly some differences between writs of
`habeas corpus and other judgments—most notably, that
`habeas proceedings traditionally
`ignored the claim-
`preclusive effect of earlier adjudications. But the reality
`that some things about habeas are different does not mean
`that everything about habeas is different. The dissent
`must justify why the particular distinction it urges here—
`abandonment of the usual American Railway rule—is an
`appropriate one. It cannot.
`
`9
`
`
`
`B
`
`The State also advances what could be termed a corol-
`lary to the American Railway rule. Citing Helvering v.
`
`Pfeiffer, 302 U. S. 247 (1937), and Alexander v. Cosden
`Pipe Line Co., 290 U. S. 484 (1934), the State insists that a
`cross-appeal is necessary not only for Jennings to enlarge
`his rights under the District Court’s judgment, but also to
`attack the District Court’s ruling rejecting his Spisak
`theory, even if Jennings’ rights under the court’s judgment
`would remain undisturbed.
` The view of Pfeiffer and Alexander advanced by the
`State would put these cases in considerable tension with
`our oft-reaffirmed holding in American Railway. And it is
`
`not the correct view. Both Pfeiffer and Alexander arose
`from disputes between the Commissioner of the Internal
`Revenue Service and taxpayers regarding multiple dis-
`crete federal tax liabilities. Pfeiffer, supra, at 248; Alex-
`ander, supra, at 486. In Pfeiffer, the Commissioner pre-
`vailed before the Board of Tax Appeals on his contention
`
`that a dividend was taxable, but lost a similar claim
`against a cash payment. Only the taxpayer sought the
`Second Circuit’s review, and the taxpayer prevailed on the
`dividend liability. 302 U. S., at 249. In Alexander, the
`
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`

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`10
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` JENNINGS v. STEPHENS
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`Opinion of the Court
`taxpayer sought refund of four tax liabilities; the taxpayer
`won on all four. Only the Commissioner appealed to the
`Tenth Circuit, and that court affirmed two of the refunds,
`eliminated a third, and reduced a fourth. Pfeiffer, supra,
`at 248–249; Alexander, supra, at 486. The Commissioner
`sought our review in both cases; we refused to entertain
`the Commissioner’s arguments regarding the cash pay-
`ment in Pfeiffer, or the taxpayer’s regarding the elimi-
`
`
`nated and reduced claims in Alexander, citing American
`Railway.
`
`The State argues that these holdings expanded the need
`for cross-appeal, beyond merely those arguments that
`would enlarge rights under the judgment, to those argu-
`
`ments that revisit a lower court’s disposition of an issue on
`which a judgment rests. For, the State argues, the re-
`jected arguments would not necessarily have expanded
`the Commissioner’s or the taxpayer’s rights; if some of the
`
`points on which the respective appellee won below were
`rejected on appeal, his new arguments might do no more
`than preserve the amount assessed.
`
`But this view of Pfeiffer and Alexander distorts Ameri-
`
`
`can Railway. American Railway does not merely require a
`cross-appeal where a party, if fully successful on his new
`arguments, would certainly obtain greater relief than
`provided below; it requires cross-appeal if the party’s
`arguments are presented “with a view either to enlarging
`his own rights thereunder or of lessening the rights of his
`
`adversary.” 265 U. S., at 435. In Pfeiffer and Alexander
`the assertion of additional tax liabilities or defenses,
`respectively, necessarily sought to enlarge or to reduce the
`Commissioner’s rights, even if, under some combination of
`issues affirmed and reversed, one possibility would have
`produced no more than the same tax obligations pro-
`nounced by the judgment below.
`
`Once we have rejected the State’s—and dissent’s—
`theories of implied terms in conditional writs, Jennings’
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` 11
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` Cite as: 574 U. S. ____ (2015)
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`Opinion of the Court
`Spisak theory sought the same relief awarded under his
`Wiggins theories: a new sentencing hearing. Whether
`prevailing on a single theory or all three, Jennings sought
`the same, indivisible relief. This occurred in neither
`Pfeiffer nor Alexander, and we decline to view those cases
`as contradicting our ‘“inveterate and certain’” rule in
`American Railway. Greenlaw v. United States, 554 U. S.
`237, 245 (2008).
`
`
`
`
`
`C
`Finally, the State urges that even if Jennings was not
`
`required to take a cross-appeal by American Railway,
`Pfeiffer, and Alexander, he was required to obtain a certifi-
`cate of appealability. We disagree.
`Section 2253(c) of Title 28 provides that “an appeal may
`
`not be taken to the court of appeals” without a certificate
`of appealability, which itself requires “a substantial show-
`ing of the denial of a constitutional right.” It is unclear
`whether this requirement applies to a habeas petitioner
`seeking to cross-appeal in a case that is already before a
`court of appeals. Section 2253(c) performs an important
`gate-keeping function, but once a State has properly no-
`ticed an appeal of the grant of habeas relief, the court of
`
`appeals must hear the case, and “there are no remaining
`gates to be guarded.” Szabo v. Walls, 313 F. 3d 392, 398
`
`
`(CA7 2002) (Easterbrook, J.).
`But we need not decide that question now, since it is
`
`clear that §2253(c) applies only when “an appeal” is “taken
`to the court of appeals.” Whether or not this embraces a
`cross-appeal, it assuredly does not embrace the defense of
`a judgment on alternative grounds. Congress enacted
`§2253(c) against the well-known, if not entirely sharp,
`distinction between defending a judgment on appeal and
`taking a cross-appeal. Nothing in the statute justifies
`
`ignoring that distinction.
`The dissent laments that this result frustrates AEDPA’s
`
`
`
`
`
`
`
`

`
`
`
` JENNINGS v. STEPHENS
`
`Opinion of the Court
` purpose of preventing “frivolous appeals.” Post, at 8. It
`
`can indulge that lament only by insisting that the defense
`of an appealed judgment on alternative grounds is itself
`an appeal. The two are not the same. The statutory text
`at issue here addresses the “tak[ing]” of an appeal, not
`
`“the making of arguments in defense of a judgment from
`which appeal has been taken.” Extending the certificate of
`appealability requirement from the former to the latter is
`beyond the power of the courts.
`*
`*
`*
`
`
` Because Jennings’ Spisak theory would neither have
`enlarged his rights nor diminished the State’s rights
`under the District Court’s judgment, he was required
`neither to take a cross-appeal nor to obtain a certificate of
`appealability. We reverse the judgment of the Fifth Cir-
`cuit and remand the case for consideration of Jennings’
`Spisak claim.
`
`
`
`It is so ordered.
`
`
`
`12
`
`
`

`
` Cite as: 574 U. S. ___ (2015)
`
`Thomas, J., dissenting
`SUPREME COURT OF THE UNITED STATES
`
`_________________
`
` No. 13–7211
`_________________
`
` ROBERT MITCHELL JENNINGS, PETITIONER v.
`
`
`WILLIAM STEPHENS, DIRECTOR, TEXAS DE-
`
`PARTMENT OF CRIMINAL JUSTICE, COR-
`
` RECTIONAL INSTITUTIONS DIVISION
`
`ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
`
`
`APPEALS FOR THE FIFTH CIRCUIT
`
`
`[January 14, 2015]
`
` JUSTICE THOMAS, with whom JUSTICE KENNEDY and
`JUSTICE ALITO join, dissenting.
`
`The Court holds today that a prisoner who obtains an
`order for his release unless the State grants him a new
`sentencing proceeding may, as an appellee, raise any
`alternative argument rejected below that could have re-
`sulted in a similar order. In doing so, the majority mis-
`takenly equates a judgment granting a conditional-release
`order with an ordinary civil judgment. I respectfully
`dissent.
`
`
`
`I
`
`
`Title 28 U. S. C. §2253(c)(1)(A), as amended by the
`Antiterrorism and Effective Death Penalty Act of 1996
`(AEDPA), provides in relevant part: “Unless a circuit
`justice or judge issues a certificate of appealability, an
`appeal may not be taken to the court of appeals from . . .
`the final order in a habeas corpus proceeding in which the
`detention complained of arises out of process issued by a
`State court.” Further, “[a] certificate of appealability may
`issue . . . only if the applicant has made a substantial
`showing of the denial of a constitutional right,” and the
`certificate must “indicate which specific issue or issues
`
`
`
`
`
`
`
`
`
`1
`
`

`
`
`
` JENNINGS v. STEPHENS
`
` THOMAS, J., dissenting
`
`
`satisfy [that] showing.” §§2253(c)(2),(3). Because Jen-
`nings did not obtain a certificate of appealability (COA),
`we must consider whether, by raising his “cross-point,” he
`took an appeal within the meaning of AEDPA.
`
`I agree with the majority that if a habeas petitioner
`
`takes what is, in substance or in form, a cross-appeal to
`the Court of Appeals, then he must obtain a COA. The
`failure to obtain a COA is a jurisdictional bar to review.
`
`See Gonzalez v. Thaler, 565 U. S. ___, ___ (2012) (slip op.,
`at 8). The critical question the Court faces is whether
`
`Jennings’ “cross-point” was in fact a cross-appeal.
`II
`
`
`A
`
`The majority correctly identifies the rule we apply to
`
`determine whether a party has taken a cross-appeal,
`United States v. American Railway Express Co., 265 U. S.
`425, 435 (1924), but then fails to apply it in accordance
`with the history of the writ of habeas corpus, our prece-
`dents concerning conditional-release orders, and tradi-
`tional principles governing equitable relief. Each of these
`guides supports the conclusion that a prisoner who obtains
`a conditional-release order allowing the State to resen-
`tence him in a new proceeding is entitled, if the State
`elects that option, to a new sentencing proceeding free of
`the specific constitutional violation identified by the dis-
`trict court. Because a conditional-release order embodies
`
`this specific right, an appellee’s attempt to add additional
`errors is an attempt to modify or expand his rights under
`the judgment.
`For most of its existence, the writ of habeas corpus was
`
`understood far more narrowly than it is today. See Wright
`v. West, 505 U. S. 277, 285–287 (1992) (opinion of THOMAS,
`J.). Originally, it played only a procedural role: It issued
`as of right when a prisoner showed probable cause to
`believe he was being held illegally—that is, without a
`
`2
`
`
`
`
`
`
`
`
`
`
`
`
`

`
`3
`
`
`
`
`
` Cite as: 574 U. S. ___ (2015)
`
` THOMAS, J., dissenting
`
`
` conviction entered by a court of competent jurisdiction
`
`
` over the prisoner—and obligated the warden to file a
`“return” identifying the grounds of imprisonment. W.
`Church, A Treatise on the Writ of Habeas Corpus §§94,
`
`122 (rev. 2d ed. 1893) (hereinafter Church). The “grant of
`the writ decided nothing except that there was a case
`calling for an answer by the gaoler.” Goddard, A Note on
`Habeas Corpus, 65 L. Q. Rev. 30, 34 (1949). And the
`court’s ultimate decision on the matter was limited to
`confirming the legality of the prisoner’s confinement or
`ordering his immediate discharge. See Church §§130, 131.
`The writ today, by contrast, is invoked to justify broad
`
`
`federal review of state criminal proceedings for constitu-
`tional violatio