Published on: Tuesday, June 21, 2022

In Shoop v. Twyford, No. 21-511 (June 21, 2022), a 5 to 4 Supreme Court held that a transportation order, issued under the All Writs Act, that allows a state prisoner to search for new evidence is not “necessary or appropriate in aid of” a federal court’s adjudication of a habeas corpus action when the prisoner has not shown that the desired evidence would be admissible in connection with a particular claim for relief.  Chief Justice Roberts delivered the opinion of the Court, joined by Justices Thomas, Alito, Kavanaugh and Barrett. Justice Breyer filed a dissenting opinion joined by Justices Sotomayor and Kagan. Justice Gorsuch also filed a dissenting opinion. Like the opinion in Shinn v. Martinez last month, reported here, this result further restricts the ability of state-federal-habeas-petitioners to investigate, develop and present evidence in support of their constitutional claims.

Respondent Raymond Twyford was convicted by an Ohio jury of aggravated murder and sentenced to death in 1993. After his direct appeal was affirmed and state postconviction denied, Twyford filed a federal petition for writ of habeas corpus in the Southern District of Ohio. Among other things, Twyford asserted his trial counsel was ineffective for failing to investigate and develop evidence of severe neurological impairment that resulted from his sustained physical abuse, drug use, and a self-inflicted gunshot wound to the head. In 2018, Twyford filed a motion to transport him from state prison to the Ohio State University Medical Center for neurological imaging for the purpose of developing evidence in support of his ineffective assistance of counsel and other claims. The State opposed the motion arguing the court lacked jurisdiction to order the transport and that any new evidence would be inadmissible. The district court granted Twyford’s motion, finding that it had jurisdiction under the All Writs Act. The State appealed the transport order under the collateral-order doctrine. The Sixth Circuit affirmed the district court’s order.

Reversing the Sixth Circuit, Chief Justice Roberts majority opinion begins and ends this way:

The All Writs Act authorizes federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U. S. C. §1651(a). In this case, the District Court ordered the State to transport a prisoner in its custody to a hospital for medical testing. The prisoner argued that the testing could reveal evidence helpful in his effort to obtain habeas corpus relief. The question is whether the District Court’s order is “necessary or appropriate in aid of” the federal court’s resolution of the prisoner’s habeas case. We hold that it is not, and therefore reverse.


A transportation order that allows a prisoner to search for new evidence is not “necessary or appropriate in aid of” a federal court’s adjudication of a habeas corpus action, 28 U. S. C. §1651(a), when the prisoner has not shown that the desired evidence would be admissible in connection with a particular claim for relief. Because the District Court entered such an order despite Twyford’s failure to make the required showing, the judgment of the Court of Appeals affirming that order is reversed and the case is remanded for further proceedings consistent with this opinion.

Justice Breyer’s dissent, joined by Justices Sotomayor and Kagan, starts off like this:

The Court today reviews a District Court’s pretrial order requiring Ohio “to transport a prisoner in its custody to a hospital for medical testing” in order to develop evidence to support the prisoner’s habeas petition. The Court holds that the District Court’s order did not comply with the All Writs Act because the District Court failed to consider whether the evidence sought could be admissible in the habeas proceeding. I would not reach the merits of that question because I do not believe that the Court of Appeals had jurisdiction to hear the State’s interlocutory appeal. I respectfully dissent.

Justice Gorsuch dissented separately, explaining his view that he would have dismissed the case as improvidently granted:

The Court granted review to decide whether and under what circumstances a federal district court may order a State to transport a prisoner to a hospital for testing. Later, however, it became clear a potential jurisdictional defect threatened to preclude the Court from reaching that question. The District Court’s transportation ruling was an interlocutory order, not a final judgment. To address its merits, the Court would first have to extend the collateral order doctrine to a new class of cases. See Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 545–547 (1949). In a terse footnote today, the Court does just that. 

Respectfully, I would have dismissed this case as improvidently granted when the jurisdictional complication became apparent. We did not take this case to extend Cohen. And this Court has repeatedly “admoni[shed]” other courts to keep “the class of collaterally appealable orders . . . ‘narrow and selective.’” Mohawk Industries, Inc. v. Carpenter, 558 U. S. 100, 113 (2009). If anything, this call for caution “has acquired special force in recent years with the enactment of legislation designating rulemaking . . . as the preferred means for determining whether and when prejudgment orders should be immediately appealable.”

The opinion in Twyford is available here; oral argument here; and mertis briefing here