Reply Brief — Maurice Shaundell Hope, Petitioner v. Larry Cartledge, Warden

No. 17-417

IN THE

Supreme Court of the United States

MAURICE SHAUNDELL HOPE,

Petitioner,

v.

WARDEN CARTLEDGE,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

REPLY IN SUPPORT OF

PETITION FOR A WRIT OF CERTIORARI

JENNIFER L. SWIZE

DANIEL KAZHDAN

Counsel of Record

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

(202) 879-3939

dkazhdan@jonesday.com

Counsel for Petitioner

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES...................................... ii

I.

THE ROLE OF “SPECIAL-PURPOSE”

INSTRUCTIONS LIKE ALIBI INSTRUCTIONS IS

WELL ESTABLISHED, WARRANTING REVIEW

OF THE SIGNIFICANT DEPARTURE HERE ............... 2

II. THE FACT-DEPENDENT NATURE OF

STRICKLAND DOES NOT PRECLUDE REVIEW.......... 6

III. THE STATE COURT’S UNREASONABLE

APPLICATION OF STRICKLAND WARRANTS

REVIEW................................................................ 11

CONCLUSION ......................................................... 12

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Alicea v. Gagnon,

675 F.2d 913 (7th Cir. 1982) .................................. 5

Carter v. Kentucky,

450 U.S. 288 (1981) ................................................ 1

Commonwealth v. Sileo,

32 A.3d 753 (Pa. Super. Ct. 2011) ......................... 7

Duckett v. Godinez,

67 F.3d 734 (9th Cir. 1995) .................................... 5

Ford v. State,

442 S.E.2d 604 (S.C. 1994) .................................... 7

Hardy v. Chappell,

849 F.3d 803 (9th Cir. 2016) .................................. 9

Hickory v. United States,

160 U.S. 408 (1896) .............................................. 11

Jackson v. Virginia,

443 U.S. 307 (1979) ................................................ 2

Merrill v. State,

716 N.E.2d 902 (Ind. 1999) .................................... 7

Sandstrom v. Montana,

442 U.S. 510 (1979) ................................................ 4

Schmitt v. State,

779 A.2d 1004 (Md. App. 2001) ............................. 7

State ex rel. Boso v. Hedrick,

391 S.E.2d 614 (W. Va. 1990) ................................ 7

iii

TABLE OF AUTHORITIES

(continued)

Page(s)

State v. Alicea,

295 N.W.2d 835 (Wis. Ct. App. 1980) .................... 5

State v. Echols,

972 A.2d 1091 (N.J. 2009)...................................... 5

State v. Williamson,

267 N.W.2d 337 (Wis. 1978) .................................. 5

Strickland v. Washington,

466 U.S. 668 (1984) ...................................... passim

Sullivan v. Louisiana,

508 U.S. 275 (1993) ................................................ 9

Taylor v. Kentucky,

436 U.S. 478 (1978) ............................................ 1, 2

Williams v. Taylor,

529 U.S. 362 (2000) .................................... 6, 11, 12

STATUTES

28 U.S.C. § 2254 ................................................ 2, 6, 11

OTHER AUTHORITIES

Fed. R. Crim. P. 29 ...................................................... 9

Supreme Court Rule 10............................................... 6

1

In assuming that jurors will make every logical

deduction from general-purpose instructions, the

decisions below contradict and unreasonably apply

the

requirement

for

“special-purpose”

jury

instructions on complicated legal issues. Taylor v.

Kentucky, 436 U.S. 478, 488 (1978). The panel

majority found no error in the State court’s noprejudice determination, because Maurice Hope’s jury

received the boilerplate reasonable-doubt instructions

given in every criminal case. The majority believed

these boilerplate instructions obviated the need for

South Carolina’s special-purpose alibi instruction

that explains that the State bears the burden of

disproving an alibi defense. But “[j]urors are not

experts in legal principles,” and they need casespecific instructions “to function effectively.” Carter v.

Kentucky, 450 U.S. 288, 302 (1981).

Respondent initially accepts “the important

purpose” of special-purpose alibi instructions, Opp.25,

but then proceeds to dismiss any actual importance.

His three arguments for avoiding review all fail.

First, Respondent argues that the sufficiency of

general instructions in alibi cases is the subject of

“divisions among circuits” and state courts. Opp.25,

28-31. There is no circuit- or state-court split. But, no

matter. If the most Respondent can muster is a circuit

split, that itself requires this Court’s attention.

Second, Respondent argues that this Court should

never review a failure-to-request-instruction case,

because “assessing Strickland prejudice when trial

counsel has failed to request a particular jury

instruction, by its very nature, requires intensive

factfinding review.” Opp.34. This Court has not given

lower courts carte blanche on issues that necessarily

2

involve “intensive factfinding” before, and it should

not do so now.

Third, Respondent argues that, because this

Court has never addressed the exact question of the

need for an alibi instruction, there can be no habeas

relief. Opp.28, 33. Not so. Section 2254 is explicit that

habeas relief is appropriate not only where a state

court decision is “contrary to” this Court’s precedent

but also where it is an “unreasonable application” of

this Court’s clearly established precedent—here,

Strickland.

I.

THE ROLE OF “SPECIAL-PURPOSE”

INSTRUCTIONS LIKE ALIBI INSTRUCTIONS IS

WELL ESTABLISHED, WARRANTING REVIEW OF

THE SIGNIFICANT DEPARTURE HERE

This Court has clearly established the need for

“special-purpose” jury instructions for complicated

and important legal issues. Taylor, 436 U.S. at 488.

Thus, a defendant is entitled to a separate

presumption-of-innocence instruction, over and above

a reasonable-doubt instruction, even though the two

instructions are “logically” indistinct. Id. at 483.

As the dissent below observed, the alibi

instruction—which explains that the State has the

burden of disproving defendant’s alibi beyond a

reasonable doubt—is a classic example of a necessary

special-purpose instruction. Indisputably, the proper

standard and burden of proof is a “fundamental,”

“substantive” issue. Jackson v. Virginia, 443 U.S. 307,

316-17 (1979). The petition also details how many

courts have been profoundly confused regarding how

to apply alibi; even as they recognized that the State

generally bears the burden of proving every element

3

of its case beyond a reasonable doubt, numerous

courts mistakenly held that the defendant, not the

State, bears the burden of proving the alibi defense,

sometimes even beyond a reasonable doubt. Pet.1115. In recognition of the potential confusion, courts

and model-jury instructions have crafted specialpurpose alibi instructions, over and above boilerplate

instructions. Pet.15-17.

Respondent repeatedly concedes this point. On

three occasions, he admits to the “importance” of alibi

instructions. Opp.25; 27; 34. He even concedes that

“[a]n alibi charge is considered especially crucial when

the evidence is entirely circumstantial as in this case.”

Opp.23 (emphases added). This is because an alibi

charge “ensur[es]” that “a jury understands the State

maintains the burden of proof when a defendant

presents an alibi defense.” Opp.25. Indeed,

Respondent’s substantive argument begins: “The

Fourth Circuit’s majority opinion did not minimize

the importance of the state crafted alibi instruction.”

Opp.25.

Respondent’s very next step, however, is to

minimize the importance of the state-crafted alibi

instruction. Respondent analogizes Strickland

prejudice—where, as here, state law guarantees an

alibi instruction but the defendant’s attorney fails to

request one—to the “constitutional due-process” right

to an alibi instruction. He argues that whether there

is a constitutional due-process right is the subject of

both circuit and state-court splits and that these

splits, per se, render South Carolina’s choice

reasonable. Opp.25-26.

A. At the threshold, Respondent’s analogy is

flawed. There is a significant difference between

4

(1) reviewing a state’s finding on whether, in a specific

case, the failure to request an alibi instruction is

prejudicial (the circumstances here) and (2) deciding

that a state is required to provide an alibi instruction.

The first is a classic application of Strickland. The

second raises federalism issues, as it intrudes on

states’ rights to formulate their own jury instructions.

Cf. Sandstrom v. Montana, 442 U.S. 510, 516-17

(1979) (The State is “the final authority on the legal

weight to be given a presumption under [State] law,

but it is not the final authority on the interpretation

which a jury could have given the instruction.”).

Here, Respondent agrees that “had a jury

instruction on alibi been requested,” state law would

“require[]” the trial court “to deliver such a charge

because it was supported by evidence presented at

trial.” Opp.3. Thus, this Court does not need to decide

the thorny question of the limits of states’ discretion

in crafting their own instructions. Rather, the

question presented starts and ends with Strickland

prejudice: Is there “a reasonable probability that,” had

South Carolina’s alibi instruction been given, “the

result of the proceeding would have been different.”

Strickland v. Washington, 466 U.S. 668, 694 (1984).

B. Respondent is also wrong that there is

“disagreement” among courts on this question. The

circuits agree that a special-purpose instruction is

needed for alibi. See Pet.15-18. Respondent cites two

circuit decisions as purportedly splitting from this

rule. Opp.26. In both cases, however, the courts only

found that the absence of an alibi instruction was not

prejudicial because the juries in those cases received

a logically related, special-purpose instruction that

the State had the burden of proving the defendant was

5

present at the crime. In Duckett v. Godinez, the Ninth

Circuit emphasized and italicized the trial court’s

instruction that “the State [has] the burden of proving

beyond a reasonable doubt every material element of

the crime charged and that the defendant is the person

who committed the offense.” 67 F.3d 734, 745 (9th Cir.

1995) (emphasis in original). And in Alicea v. Gagnon,

the Seventh Circuit noted that the jury was instructed

that “the prosecution [had] to prove petitioner’s

presence” at the scene of the crime, 675 F.2d 913, 926

(7th Cir. 1982), referring to the trial court’s

instruction that the jury “must be satisfied beyond a

reasonable doubt that the defendant is the person who

committed” the crime. See State v. Alicea, 295 N.W.2d

835 (Wis. Ct. App. 1980) (noting that the trial judge in

the Alicea case gave Wisconsin Criminal Instruction

No. 141); State v. Williamson, 267 N.W.2d 337, 347

(Wis. 1978) (setting forth the 141 instruction).

Elswhere, Respondent cites to state cases that

likewise found that a special-purpose identification

charge can obviate the need for a special-purpose alibi

instruction. See State v. Echols, 972 A.2d 1091, 110203 (N.J. 2009).

These cases do not dispute the well-recognized

importance of special-purpose alibi instructions. They

merely question whether the lack of that instruction

is prejudicial if the defendant received a specialpurpose instruction that the State has to prove the

defendant’s presence at the crime. As the district

court properly recognized, Mr. Hope’s jury charge “did

not include a[n] identification charge or other special

instruction advising the jury of the essential elements

of the law of alibi.” App.48a. The jury only received

“boilerplate jury charges [that] are given in virtually

6

every criminal case.” App.49a. For such cases, there is

no circuit split on the importance of an alibi

instruction.

C. A split, even if one existed, would itself be good

reason for this Court’s intervention. Respondent

argues that “the variety of opinions from different

jurisdictions clearly reflect that fairminded jurists do

disagree.” Opp.27. This Court, however, has held that

a decision does not become fair-minded or reasonable

under section 2254 merely because “at least one of the

Nation’s jurists has applied the relevant federal law

in the same manner the state court did in the habeas

petitioner’s case.” Williams v. Taylor, 529 U.S. 362,

409-10 (2000) (majority opinion as to that section).

“[C]onflicting authority” does not preclude review. Id.

at 410. Thus, the need for this Court’s intervention

would not be absolved even if Respondent could

summon a decision that made the same mistakes as

the courts below. To the contrary, a decision that is “in

conflict with the decision of another United States

court of appeals on the same important matter [or

that] has decided an important federal question in a

way that conflicts with a decision by a state court of

last resort” is a reason to grant certiorari. Sup. Ct. R.

10(a).

II. THE FACT-DEPENDENT NATURE OF STRICKLAND

DOES NOT PRECLUDE REVIEW

Respondent also seeks to avoid review based on

the necessity of considering facts in addressing

prejudice. He argues that because prejudice always

depends on the facts of a case (true premise), this

Court should never review such cases (false

deduction). Opp. 27-31.

7

Respondent cites a number of cases that have

found that the lack of an alibi instruction was not

prejudicial “based upon the facts and circumstances

presented in those cases.” Opp.28. In support,

Respondent cites the following cases:

• Ford v. State, 442 S.E.2d 604 (S.C. 1994), and

Commonwealth v. Sileo, 32 A.3d 753, 767 (Pa. Super.

Ct. 2011): both cases in which Respondent concedes

“there was overwhelming evidence of guilt,” Opp.24,

28;

• Schmitt v. State, 779 A.2d 1004, 1022 (Md. App.

2001): a case where the court found no deficiency,

because the alibi was not “unmistakably identifiable”

in that case;

• Merrill v. State, 716 N.E.2d 902, 906 (Ind. 1999):

a case where the court found neither deficiency nor

prejudice, because the defendant’s alibi did not cover

the entire time of the crime so other defenses were

more likely to succeed and the weak alibi was likely

irrelevant; and

• State ex rel. Boso v. Hedrick, 391 S.E.2d 614, 620

(W. Va. 1990): a case where the jury was instructed

that it had to “find[] that the defendant was present

at the scene,” which is a special-purpose instruction

that is similar to an alibi instruction, see supra at 4-6.

These cases properly support Respondent’s

premise that analyzing Strickland prejudice requires

a case-specific inquiry. But Respondent makes an

improper

deduction

that

failure-to-requestinstruction decisions are therefore never reviewable

because, by their “very nature,” such cases might

“require[] intensive factfinding review.” Opp.34.

Based on this false deduction, Respondent presents

8

this Court with a false choice of either affirming or

taking the extreme position that “failure to request an

alibi instruction is per se prejudicial.” Opp.34.

There is no need for a bright-line rule. This Court

is perfectly competent to review fact-heavy decisions,

and it often does just that—Strickland itself being a

classic example. 1 Looking to the facts of this case,

there is prejudice. The courts below focused on the

boilerplate reasonable-doubt instructions that are

given in virtually every case. App.64a-66a (state

court); App.39a-40a (district court); App.11a-12a

(circuit court). If more-than-a-century of judges

believed that a defendant has the burden of proof even

as they recognized that the State generally bears the

burden of proving guilt beyond a reasonable doubt,

then it is reasonably probable that Mr. Hope’s jury

believed that a defendant has the burden of proof even

as the jury was instructed that the State generally

bears the burden of proving guilt beyond a reasonable

doubt. Pet.11-15.

The courts below also found that “[t]he guilty

verdict necessarily establishes that the jury found the

State’s witnesses to be credible and believed the

State’s version of events.” App.12a (circuit court);

App.68a (state court holding that “Applicant’s alibi

witness testimony must have been given little or, no

weight by the jury”). The courts below failed to

appreciate

that

juries

make

credibility

determinations in light of their understanding of the

1 In any event, this Court always has the option of

remanding for the court below to consider the specific

facts of this case, under the proper standard that is

required by this Court’s precedent.

9

standard and burden of proof. Because it is likely that

the jury misunderstood the standard and burden of

proof in alibi, the verdict tells us nothing about

whether the jury believed the State had disproven Mr.

Hope’s alibi testimony beyond a reasonable doubt or

whether they thought that Mr. Hope failed to meet a

(non-existent) burden of proving his alibi perhaps by

a preponderance of the evidence. Cf. Sullivan v.

Louisiana, 508 U.S. 275, 281 (1993) (“the essential

connection to a ‘beyond a reasonable doubt’ factual

finding cannot be made where the instructional error

consists of a misdescription of the burden of proof,

which vitiates all the jury’s findings”).

Respondent argues that there was some evidence

of Mr. Hope’s guilt. See Opp.34-35. Respondent might

be arguing that a reasonable jury, even properly

instructed, could have convicted. Even if true, that is

irrelevant. The question under Strickland is not

whether “substantial evidence” supports the verdict.

See Hardy v. Chappell, 849 F.3d 803, 819 (9th Cir.

2016) (citing cases). Indeed, in cases where

substantial evidence does not support the jury’s

verdict, Strickland is unnecessary for reversal. See

Fed. R. Crim. P. 29. Rather, Strickland requires only

a “reasonable probability” that the jury might have

acquitted. Strickland, 466 U.S. at 694.

Respondent cannot possibly mean that the

evidence of guilt here was “overwhelming”—a term it

uses to describe other cases. Opp.24, 28. Mr. Hope’s

alibi was corroborated by five other witnesses, and the

State’s evidence of guilt was premised on the

testimony of two brothers who testified “[p]ursuant to

plea deals.” App.4a-5a. Even without a specialpurpose instruction, Mr. Hope’s jury convicted him

10

only after they deliberated for almost as long as the

entire trial lasted and after they asked to rehear

portions of the alibi testimony. Pet.4. As Respondent

concedes, “[a]n alibi charge is considered especially

crucial when the evidence is entirely circumstantial

as in this case.” Opp.23 (emphases added).

Respondent claims that the two brothers’

testimony “was generally corroborated” by other

eyewitnesses. Opp.34. “Generally” is the operative

word. The corroborating testimony is “witness[es]

seeing the car with three individuals in the parking

lot; victims in the store noting two males with guns

completed the robbery. Opp.34. That corroborates

only the vaguest outlines of the brothers’ testimony

and says nothing about Mr. Hope’s involvement.

Respondent

ignores

that

the

purportedly

corroborating witnesses described the criminal as

someone who was 2 to 4 inches shorter and 50 to 70

pounds lighter than Mr. Hope. App. 24a.

Respondent’s other “corroborations” also prove

little. Respondent notes that there was “a surveillance

video that showed the robbery,” Opp.35, but, as the

State itself admitted in having the video admitted,

“you can’t identify anyone” from the video. App.73a.

Respondent also cites to the fact that Mr. Hope’s

wallet was found in the car, but, as the dissent notes,

this “is of little probative value, as Hope was

undisputedly in Heath’s car a week before the

robbery.” App.25a. The State courts never even

mentioned the wallet in their prejudice analysis. See

App.55a-70a. Finally, Respondent cites to the fact

that Mr. Hope fled the State, but, as this Court has

explained, innocent people have been fleeing

authorities going as far back as the story in Genesis

11

Chapter 31 of Jacob fleeing from Laban. Hickory v.

United States, 160 U.S. 408, 421 (1896) (citing

sources).

The point is that here, where the jury’s verdict is

“only weakly supported by the record,” there is a high

likelihood of prejudice. Strickland, 466 U.S. at 696. It

is at least reasonably probable that the jury’s likely

misunderstanding of the burden and standard of proof

affected the verdict. It was unreasonable to conclude

otherwise.

III. THE STATE COURT’S UNREASONABLE

APPLICATION OF STRICKLAND WARRANTS

REVIEW

Section 2254 is clear as can be that habeas relief

is appropriate not only where a State’s adjudication is

“contrary to” this Court’s precedent but also where it

is “an unreasonable application of” this Court’s

precedent. 28 U.S.C. § 2254(d)(1). This Court need not

have addressed the precise set of facts at issue for its

review (and habeas relief) to be warranted.

For example, this Court has granted habeas relief

under Strickland to a prisoner whose counsel failed to

“present[] and explain[] the significance of all the

available [mitigating sentencing] evidence.” Williams,

529 U.S. at 399. Those were not the precise facts of

Strickland—a case where this Court found neither

deficiency nor prejudice. Strickland, 466 U.S. at 698701. Nevertheless, as this Court explained, “[t]hat the

Strickland test of necessity requires a case-by-case

examination of the evidence, obviates neither the

clarity of the rule nor the extent to which the rule

must be seen as established by this Court.” Williams,

529 U.S. at 391 (citations omitted). In Williams, the

12

state court’s finding of no prejudice “was both”

contrary to and an unreasonable application of

Strickland—even though this Court had not

previously addressed that precise set of facts. Id.

Respondent, however, ignores the plain text of the

statute (and the decision in Williams). Again and

again he points to the fact that this Court has never

addressed exactly these circumstances: “This Court

has never held an alibi instruction is required by the

Constitution.” Opp.28. “None of [this Court’s] cases

directly address whether a defendant is prejudiced

under Strickland when trial counsel does not request

an alibi jury instruction when such an instruction is

warranted.” Opp.33. No opinion of this Court has

addressed “whether a failure to give an alibi

instruction constitutes constitutional error.” Opp.33.

“The cases relied upon by Petitioner were in different

procedural postures from his.” Opp.33.

The State court’s decision is at least an

“unreasonable application” of Strickland, based on

clearly established (and undisputed) law on the

importance of special-purpose instructions. That is

error enough.

CONCLUSION

The petition should be granted.

13

December 18, 2017

/s/ Daniel Kazhdan

JENNIFER L. SWIZE

DANIEL KAZHDAN

Counsel of Record

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

(202) 879-3939

dkazhdan@jonesday.com