Supreme Court of the United States · Official docket →
Gary Richard Whitton v. Ricky D. Dixon, Secretary, Florida Department of Corrections
Paid petition · United States Court of Appeals for the Eleventh Circuit, No. 23-10786 · judgment May 6, 2025
Before the decision, well below the 4.1% base rate, with no standout signals pointing toward a grant.
Questions presented
Petitioner established below, and the Eleventh Circuit agreed, that petitioner’s capital murder trial was tainted by a Giglio violation. Ordinarily, a petitioner who makes such an extraordinary showing of prosecutorial misconduct would be entitled to habeas relief under 28 U.S.C. § 2254. But the Eleventh Circuit deemed the violation immaterial. The Eleventh Circuit held that the Florida Supreme Court reasonably concluded that, even without the Giglio-tainted testimony, the evidence against petitioner was “overwhelming.” The Eleventh Circuit reached that determination almost entirely on the basis of evidence that Florida developed a decade after petitioner’s trial and that flatly contradicted unrebutted evidence presented by the defense at the actual trial. The decision below opens a direct circuit split with the Second, Sixth, and Tenth Circuits, United States v. JeanBaptiste, 166 F.3d 102 (2d Cir. 1999); Apanovitch v. Bobby, 648 F.3d 434 (6th Cir. 2011); Browning v. Trammell, 717 F.3d 1092 (10th Cir. 2013), and the North Carolina Supreme Court, State v. Best, 376 N.C. 340, 852 S.E.2d 191 (2020), on a question of exceptional importance. It is also in deep tension with this Court’s recent decision in Glossip v. Oklahoma, 604 U.S. 226 (2025). The questions presented are:
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Whether in determining whether a constitutional error had a prejudicial effect on the outcome of a trial a court must consider only that evidence that was presented to the jury at the trial.
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Whether the prejudice from the Giglio violation in this case met the standards for relief under Giglio and Brecht. (i)
Counsel of record
For petitioner
Andrew Timothy Tutt
Trial Lawyers for Justice
For respondent
Jeffrey Paul DeSousa
Florida Office of the Attorney General
Proceedings
- Jul 06 2026Judgment Issued.
- Jun 01 2026Petition GRANTED. Judgment VACATED and case REMANDED for further proceedings consistent with the Opinion of the Court. Opinion per curiam. (Detached Opinion) Justice Thomas, with whom Justice Alito joins except as to Part III-B, dissenting. (Detached Opinion)
- May 26 2026DISTRIBUTED for Conference of 5/28/2026.
- May 18 2026DISTRIBUTED for Conference of 5/21/2026.
- May 11 2026DISTRIBUTED for Conference of 5/14/2026.
- Apr 27 2026DISTRIBUTED for Conference of 5/1/2026.
- Apr 20 2026DISTRIBUTED for Conference of 4/24/2026.
- Apr 13 2026DISTRIBUTED for Conference of 4/17/2026.
- Mar 30 2026DISTRIBUTED for Conference of 4/2/2026.
- Mar 23 2026DISTRIBUTED for Conference of 3/27/2026.
- Mar 16 2026DISTRIBUTED for Conference of 3/20/2026.
- Feb 20 2026Reply of petitioner Gary Whitton filed. (Distributed)
- Feb 18 2026DISTRIBUTED for Conference of 3/6/2026.
- Feb 02 2026Brief of respondent Ricky D. Dixon, Secretary, Florida Department of Corrections in opposition filed.
- Dec 17 2025Brief amici curiae of Professors Of Constitutional And Criminal Law filed.
- Dec 17 2025Brief amici curiae of Retired Judges filed.
- Nov 25 2025Motion to extend the time to file a response is granted and the time is extended to and including February 2, 2026.
- Nov 24 2025Motion to extend the time to file a response from December 17, 2025 to January 31, 2026, submitted to The Clerk.
- Nov 12 2025Petition for a writ of certiorari filed. (Response due December 17, 2025)
- Oct 06 2025Application (25A394) granted by Justice Thomas extending the time to file until November 12, 2025.
- Oct 02 2025Application (25A394) to extend the time to file a petition for a writ of certiorari from October 13, 2025 to December 12, 2025, submitted to Justice Thomas.