Reply Brief — Oscar Franklin Smith, Petitioner v. Tony Mays, Warden

Supreme Court briefMay 21, 2019

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No. 18-1132

IN THE

OSCAR FRANKLIN SMITH,

Petitioner,

TONY MAYS, WARDEN,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

REPLY BRIEF

Eric F. Citron

Counsel of Record

Daniel Woofter

GOLDSTEIN &

RUSSELL, P.C.

7475 Wisconsin Ave.

Suite 850

Bethesda, MD 20814

(202) 362-0636

ec@goldsteinrussell.com

TABLE OF CONTENTS

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

REPLY.......................................................................... 1

ARGUMENT ................................................................ 2

CONCLUSION ............................................................ 8

TABLE OF AUTHORITIES

Cases

Cullen v. Pinholster,

563 U.S. 170 (2011) .................................................. 3

Gallow v. Cooper,

570 U.S. 933 (2013) .............................................. 3, 5

Martinez v. Ryan,

566 U.S. 1 (2012) .............................................. 2, 3, 5

Strickland v. Washington,

466 U.S. 668 (1984) .................................................. 6

Trevino v. Thaler,

569 U.S. 423 (2013) .......................................... 2, 3, 5

The petition lays out a 3-to-3 circuit split on a

question two Justices of this Court have already

flagged as appropriate for certiorari. Remarkably, respondent does not contest that this split exists on a

certworthy question—indeed, respondent does not

contest almost anything in the petition. Instead, respondent tries a single argument: It says the question

presented is not in fact implicated here because state

post-conviction counsel did raise the relevant ineffective-assistance-of-trial-counsel (IATC) claim, which

petitioner than defaulted in his state post-conviction

appeal. As explained below, this argument boils down

to the precise merits question the petition presents—

namely, whether an incantation of an IATC claim, presented without any supporting evidence, is a procedural default (as petitioner and three circuits say) or

instead raises the claim and leads to a disposition

against it on the merits (as respondent and three other

circuits say). If petitioner and the courts of appeals

that side with his argument are right, there was nothing for state post-conviction appellate counsel to default, because the relevant IATC claim was never asserted in the state post-conviction proceeding. Thus,

respondent’s opposition is ultimately nothing more

than an invitation to this Court to resolve the question

presented, not just for this case, but for countless others like it causing confusion throughout the lower

courts.

ARGUMENT

1. As explained in the petition, Oscar Smith’s trial

counsel was ineffective for failing to discover and thus

failing to present critical evidence during the mitigation phase of his state capital case—evidence that

could have made the difference between a life sentence

and a sentence of death. See Pet. 25-26. Likewise, in

his state habeas case, Smith’s counsel failed to submit

any such evidence to the court in support of his claim

of IATC at the sentencing proceeding. See Pet. App.

114a. It is no surprise, then, that the state habeas

court—the first court that could hear such a claim pursuant to Tennessee law—rejected it. Id. And it did so

on unambiguous grounds: Although the State tries to

insinuate that this IATC claim was denied because

Smith himself had not wanted to put on mitigation evidence at trial (see BIO 2-3), the state court was “of the

opinion that” the claim failed because “petitioner has

not presented mitigation evidence which should have

been presented by counsel and which would likely

have changed the result.” Pet. App. 114a (emphasis

added). Put otherwise, the court recognized that

Smith’s state habeas counsel had invoked the idea of

IATC at sentencing, but had entirely failed to put on

the evidence necessary to substantiate that claim.

The petition identified three courts of appeals that

would have treated this failure to put on any evidence

in support of an IATC claim as a default of that claim

for purposes of Martinez v. Ryan, 566 U.S. 1 (2012),

and Trevino v. Thaler, 569 U.S. 423 (2013). In the

Ninth, Fifth, and Eighth Circuits, a wholly unsupported IATC claim is no different from one that is not

presented at all, and so the default may be excused

based on a more fulsome record developed during federal habeas proceedings. Pet. 15-18. This is also the

precise position Justice Breyer laid out in Gallow v.

Cooper, 570 U.S. 933, 933 (2013) (Breyer, J., respecting the denial of the petition for writ of certiorari),

where he suggested that incanting an IATC claim

“without any evidence to support it might as well be no

claim at all.” Respondent does not contest that this is

the rule in those circuits, or suggest that Smith would

have been denied access to Martinez and Trevino in

those circuits or under Justice Breyer’s view. That suffices to show that the question raised in the petition is

presented here, and is appropriate for this Court to resolve.

To be sure, Smith lost below, and was denied even

the possibility of invoking Martinez and Trevino, on

the ground that he had raised sentencing IATC in

state habeas proceedings and not on appeal. But the

lower courts reached that holding here only because

the Sixth Circuit does not follow the approach of the

three circuits and Supreme Court concurrence described above. As in the Tenth and Eleventh Circuits,

the Sixth Circuit holds that by merely mentioning

some sentencing IATC claim, a petitioner’s counsel effectively raises and obtains a merits determination on

all sentencing IATC claims, no matter how little evidence or argument counsel devoted to the winning issue. In these circuits, the federal court is then effectively required to rule against the petitioner in every

such case—no matter how ineffective their state trial

and post-conviction counsel—because Cullen v. Pinholster, 563 U.S. 170 (2011), closes the record, and

there is (by hypothesis) no evidence in the state post-

conviction record of what competent trial counsel

would have put before the court.

Accordingly, the State is just dead wrong to say

that “it is undisputed that the petitioner raised this

same claim during his state post-conviction proceedings.” BIO 7. Instead, that is the whole dispute. On

Smith’s view, and on the view of the many other jurists

described above, Smith’s counsel did not “raise[] this

same claim during his state post-conviction proceedings” because—as the state court found—he did “not

present[] [the] mitigation evidence which should have

been presented by [trial] counsel.” Pet. App. 114a. Indeed, he failed to present any such evidence at all.

Whether that suffices to “raise” the relevant IATC

claim is precisely what Smith asks this Court to decide; it is the opposite of “undisputed.” Contra BIO 7.

Respondent’s suggestion that Smith only defaulted the relevant sentencing IATC claim on appeal

from the state habeas proceeding is just a variation on

this same theme. The premise of that argument is that

the issue was raised in the initial habeas proceeding,

such that there was something to be defaulted on appeal. But Smith’s position (again, shared by three circuits) is that this premise is incorrect: Because there

was no mitigating evidence submitted whatsoever,

there was in substance no claim on which to take an

appeal at all. Put another way, this argument just

boils down once more to a pure merits argument on

who has the right answer to the question presented.

2. Smith laid out four reasons why that question

presented needs answering, and why this case is a

certworthy vehicle for doing so. In short, there is a

well-developed split on the question presented, this

case is an unusually good vehicle for addressing it, the

issue is recurring and important, and the Sixth Circuit

is wrong. See Pet. 13-32. Respondent effectively concedes the first three points. The argument described

above is, at best, simply the argument that the Sixth

Circuit is right about what it means to “raise” IATC in

state post-conviction proceedings. Compare BIO 10-11

(arguing that “[n]othing in Martinez’s narrow holding

indicates that it … allow[s] a petitioner to relitigate, or

reinforce, a claim that was rejected in state court, even

if … his post-conviction counsel failed to submit evidence”), with Pet. 15-18 (explaining that the Ninth,

Fifth, and Eighth Circuits apply Martinez in precisely

that way). But a respondent’s own disagreement with

the petitioner about the right rule on the merits in this

particular case is perhaps the worst reason a respondent can give for why this Court should leave a confusing, three-to-three circuit split in place throughout the

Nation.

Respondent perhaps avoids confronting the other

reasons this case is a good candidate for certiorari because they point quite strongly towards a grant. Most

importantly, there is now a well-developed split on an

issue two Justices have already recognized as likely to

require this Court’s eventual resolution. See Gallow,

570 U.S. at 933 (noting the import of the question but

explaining that, at the time, no split had yet developed); see also BIO 11 (only arguing that “the circuit

courts of appeal, in general,” have not applied Martinez and Trevino to functionally defaulted claims)

(emphasis added). Because Smith’s case cleanly falls

on one side of the line, such that a ruling in either direction would be outcome determinative in his federal

habeas proceeding, this case is the perfect vehicle to

address the question presented and resolve the exact

split Justice Breyer foresaw.

3. The only other point of note in respondent’s opposition is its suggestion that the state habeas court

denied relief because “petitioner did not want counsel

to raise mental health or family background issues,”

until he “ultimately changed his mind” as to the latter.

BIO 2, 7; see Pet. App. 114a. While the state court

noted this evidence, however, it is clear that this was

not the basis of the court’s holding. In fact, the court’s

conclusion went to an entirely separate part of the

analysis under Strickland v. Washington, 466 U.S. 668

(1984): Testimony that Smith himself rejected this evidence would go to counsel’s effective representation;

the failure to put on the missing “mitigation evidence”

at the post-trial stage (the point the state habeas court

invoked, Pet. App. 114a) goes to whether Smith could

show prejudice. So respondent’s point in this regard is

at best a red herring given the state post-trial court’s

own account of its rationale.

But it is worse for respondent than that. Far from

being evidence that the IATC claim was fairly presented in Smith’s initial state habeas proceeding, as

Respondent argues, BIO 7, this simply goes to show

that his trial counsel failed to develop and then present the compelling mitigation evidence discovered by

his federal habeas counsel. Put another way, saying

“we did not even look to see what mitigating evidence

might exist, even after the defendant ‘ultimately’ said

he was ok with it,” is just confirmation that Smith’s

trial counsel was constitutionally deficient, and that

state habeas counsel was also ineffective for failing to

do the same in the collateral proceedings as well.

To be clear, the state habeas court did not set forth

any conclusions as to the testimony’s import or reliability. At most, the statements just add to why the

case is an unusually good vehicle for addressing the

question presented. Smith had a substantial IATC

claim, which could easily have been supported had

state habeas counsel attempted to develop the record,

and the state habeas court rejected the IATC claim

specifically because counsel failed to submit any evidence to support it.

Here, we happen to know exactly what evidence

Smith’s trial counsel should have discovered and submitted during mitigation, and thus in turn, what state

habeas counsel should have submitted to show that

trial counsel was ineffective, because the federal habeas court took the unusual step of allowing the record

to be developed before ruling on whether the additional evidence could be considered. See Pet. 24-25.

That discovery shows that Smith has severe frontal

lobe damage, which “profoundly impaired” his executive functioning and behavior regulation. It also shows

that Smith’s father suffered from depression and paranoia, and was discharged from the military for “psychosis [and] mental deficiency,” with the mental age of

an eight-year-old. Pet. 26. That evidence is compelling, and very likely would have led to a different outcome here. See Pet. 25-26 (citing cases from this Court

holding that counsel was ineffective for failing to investigate and present this kind of mitigating evidence). And as the petition explained, this is the rare

case where there will be any record at all in this regard, because now that the Sixth Circuit’s rule is settled, federal courts will simply deny petitioners any

chance to supplement the record. This case is thus the

perfect vehicle for the Court to address the important

question presented.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted,