Petition for Writ of Certiorari — Donnie Morgan, Warden, Petitioner v. Vincent D. White, Jr.

Supreme Court briefFeb 13, 2020

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No. 19-___

In the Supreme Court of the United States

______________________________

WARDEN, ROSS CORRECTIONAL INSTITUTION,

Petitioner,

VINCENT D. WHITE, JR.,

Respondent.

______________________________

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

______________________________

PETITION FOR WRIT OF CERTIORARI

______________________________

DAVE YOST

Ohio Attorney General

BENJAMIN M. FLOWERS*

*Counsel of Record

Ohio Solicitor General

MICHAEL J. HENDERSHOT

Chief Deputy Solicitor General

SHAMS H. HIRJI

Deputy Solicitor General

30 E. Broad St., 17th Floor

Columbus, Ohio 43215

614-466-8980

benjamin.flowers@

ohioattorneygeneral.gov

Counsel for Petitioner

QUESTION PRESENTED

The procedural-default doctrine bars federal

courts from awarding habeas relief for claims “that a

state court refused to hear based on an adequate and

independent state procedural ground.” Davila v. Davis, 137 S. Ct. 2058, 2062 (2017). Federal courts may

excuse a procedural default only if the petitioner “can

establish ‘cause’ to excuse the procedural default and

demonstrate that he suffered actual prejudice from

the alleged error.” Id. (emphasis added). In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court

held that petitioners can, in narrow circumstances,

establish “cause” by showing that the absence or ineffective performance of state-postconviction counsel

caused them to procedurally default an ineffectiveassistance-of-trial-counsel claim that had “some merit.” Id. at 14.

This case presents the following question: If a petitioner defaults an ineffective-assistance-of-trialcounsel claim with “some merit,” does Martinez v.

Ryan allow a federal court to excuse the procedural

default without requiring any further showing of

prejudice?

LIST OF PARTIES

The petitioner is Donnie Morgan, the Warden of

the Ross Correctional Institution.

The respondent is Vincent D. White, Jr.

iii

LIST OF RELATED CASES

1. Ohio v. White, No. 12CR-4418 (Ct. of Common

Pleas, Franklin County, Ohio) (judgment entered

January 27, 2014)

2. Ohio v. White, No. 14AP-160 (Ohio Ct. App., 10th

Dist.) (decision issued December 22, 2015)

3. Ohio v. White, No. 2016-184 (Ohio) (jurisdiction

declined May 4, 2016)

4. White v. Warden, No. 2:17-cv-325 (S.D. Ohio)

(March 12, 2018)

5. Ohio v. White, No. 18AP-158 (Ohio Ct. App., 10th

Dist.) (judgment entered April 4, 2018)

6. White v. Warden, No. 18-3277 (6th Cir. 2019)

(judgment entered October 8, 2019)

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

LIST OF PARTIES .....................................................ii

LIST OF RELATED CASES .................................... iii

TABLE OF CONTENTS ............................................ iv

TABLE OF AUTHORITIES ..................................... vii

INTRODUCTION ....................................................... 1

OPINIONS BELOW ................................................... 3

JURISDICTIONAL STATEMENT ............................ 3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ......................................... 4

STATEMENT .............................................................. 4

REASONS FOR GRANTING THE PETITION ....... 12

I. The circuits are split regarding whether

and how the actual-prejudice requirement

applies in Martinez cases. .............................. 12

A. Martinez creates a narrow exception to

the procedural-default doctrine................ 13

B. The circuits are split regarding

whether a petitioner who defaults a

claim with “some merit” must show any

further prejudice to have his default

excused. ..................................................... 16

1. The Fifth, Ninth, and Eleventh

Circuits

always

usually

(depending on the circuit) require

Martinez petitioners to show actual

prejudice over and above the “some

merit” requirement. ............................. 16

2. The Third, Sixth, and Seventh

Circuits

hold

that

Martinez

eliminated

any

prejudice

requirement. ........................................ 22

II. This is a good vehicle for addressing the

question presented. ........................................ 23

III.The question whether and how the actualprejudice requirement applies in Martinez

cases is exceptionally important.................... 26

CONCLUSION.......................................................... 29

APPENDIX:

Opinion, United States Court of Appeals for the

Sixth Circuit, October 8, 2019 .......................... App.1a

Opinion and Order, United States District

Court for the Southern District of Ohio,

March 12, 2018 ............................................... App.18a

Opinion and Order, United States District

Court for the Southern District of Ohio,

February 12, 2018 ........................................... App.25a

Order and Report and Recommendation,

United States District Court for the Southern

District of Ohio, January 8, 2018 ................... App.29a

Judgment Entry, Ohio Court of Appeals for the

Tenth Appellate District, April 4, 2018 ......... App.81a

Decision and Entry, Franklin County Ohio Court

of Common Pleas, November 30, 2017 ........... App.82a

Entry, Supreme Court of Ohio,

May 4, 2016 ..................................................... App.84a

Decision, Ohio Court of Appeals for the Tenth

Appellate District, December 22, 2015 .......... App.85a

Judgment Entry, Franklin County Ohio Court

of Common Pleas, January 27, 2014 ............ App.121a

Order, United States Court of Appeals for the

Sixth Circuit, November 20, 2019 ................ App.127a

Judgment, United States Court of Appeals for

the Sixth Circuit, October 8, 2019................ App.129a

vii

TABLE OF AUTHORITIES

Page(s)

Cases

Brown v. Brown,

847 F.3d 502 (7th Cir. 2017) ..................... 1, 22, 23

Canales v. Stephens,

765 F.3d 551 (5th Cir. 2014) ........................... 2, 21

Clabourne v. Ryan,

745 F.3d 362 (9th Cir. 2014) ............................... 19

Coleman v. Thompson,

501 U.S. 722 (1991) ....................................... 13, 14

Cox v. Horn,

757 F.3d 113 (3d Cir. 2014) ................................. 15

Davila v. Davis,

137 S. Ct. 2058 (2017) .................................. passim

Detrich v. Ryan,

740 F.3d 1237 (9th Cir. 2013) (en

banc) .............................................................. passim

Harrington v. Richter,

562 U.S. 86 (2011) ..................................... 2, 26, 27

Harris v. Comm’r, Ala. Dep’t of Corr.,

874 F.3d 682 (11th Cir. 2017) ............................. 17

Hittson v. GDCP Warden,

759 F.3d 1210 (11th Cir. 2014) ........................... 15

viii

Lebron v. National R.R. Passenger

Corp.,

513 U.S. 374 (1995) ............................................. 26

Martinez v. Ryan,

566 U.S. 1 (2012) .......................................... passim

Newbury v. Stephens,

756 F.3d 850 (5th Cir. 2014) ............................... 22

Raleigh v. Sec’y, Fla. Dep’t of Corr.,

827 F.3d 938 (11th Cir. 2016) ......................... 2, 17

Ramirez v. Ryan,

937 F.3d. 1230 (9th Cir. 2019) ..................... passim

Rodney v. Filson,

916 F.3d 1254 (9th Cir. 2019) ................... 2, 18, 21

Strickland v. Washington,

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

Trevino v. Thaler,

569 U.S. 413 (2013) ...................................... passim

United States v. Frady,

456 U.S. 152 (1982) ............................................. 13

United States v. Lee,

792 F.3d 1021 (8th Cir. 2015) ............................. 17

Va. Bankshares v. Sandberg,

501 U.S. 1083 (1991) ........................................... 26

Wessinger v. Vannoy,

864 F.3d 387 (5th Cir. 2017) ........................... 2, 22

Workman v. Superintendent Albion SCI,

915 F.3d 928 (3d Cir. 2019) ....................... 1, 22, 23

Statutes, Rules, and Constitutional Provisions

28 U.S.C. §1254 ........................................................... 3

INTRODUCTION

This case presents a question that at least six different circuits have answered in at least three different ways. The question involves the interaction of

the procedural-default doctrine and this Court’s decision in Martinez v. Ryan, 566 U.S. 1 (2012). The procedural-default doctrine, for its part, generally prohibits habeas courts from entertaining claims “that a

state court refused to hear based on an adequate and

independent state procedural ground.” Davila v. Davis, 137 S. Ct. 2058, 2062 (2017). If a habeas petitioner wishes to have his default excused, he must

show “‘cause’ to excuse the procedural default and

demonstrate that he suffered actual prejudice” from

the constitutional error he alleges. Id. Martinez, for

its part, held that petitioners can, in narrow circumstances, establish “cause” by showing that the absence or ineffective performance of statepostconviction counsel caused them to procedurally

default

ineffective-assistance-of-trial-counsel

claim that had “some merit.” Martinez, 566 U.S. at

14; Trevino v. Thaler, 569 U.S. 413, 423 (2013).

Here is the problem: Martinez addresses only the

“cause” component of the cause-and-prejudice test. It

says nothing (expressly, anyway) about the “actual

prejudice” requirement. Nonetheless, some courts

have held that a petitioner who shows that his claim

has “some merit” under Martinez need not make any

further showing of prejudice to have his default excused. That is the rule in the Third and Seventh

Circuits. Brown v. Brown, 847 F.3d 502, 513 (7th

Cir. 2017); Workman v. Superintendent Albion SCI,

915 F.3d 928, 939 (3d Cir. 2019). And it is the rule

that the Sixth Circuit adopted in its decision below.

Pet.App.15a. That rule effectively eliminates the

cause-and-prejudice test’s actual-prejudice requirement.

In contrast, the Fifth, Ninth, and Eleventh Circuits all require some additional showing of prejudice. They do not, however, agree on what that

showing entails. The Eleventh Circuit applies the

actual-prejudice prong of the cause-and-prejudice

test even in Martinez cases. See Raleigh v. Sec’y,

Fla. Dep’t of Corr., 827 F.3d 938, 957–58 (11th Cir.

2016). The Ninth Circuit’s test turns on the presence

or absence of state-postconviction counsel: petitioners who had state-postconviction counsel must show

actual prejudice, while petitioners who lacked statepostconviction counsel need not. See Ramirez v.

Ryan, 937 F.3d. 1230, 1241 (9th Cir. 2019); Rodney v.

Filson, 916 F.3d 1254, 1260 n.2 (9th Cir. 2019). As

for the Fifth Circuit, it is inconsistent. In some cases,

the court’s approach resembles that of the Eleventh

Circuit, while in other cases it resembles that of the

Ninth Circuit. Compare Canales v. Stephens, 765

F.3d 551, 571 (5th Cir. 2014) with Wessinger v. Vannoy, 864 F.3d 387, 391 (5th Cir. 2017).

Most circuit splits on issues of federal law deserve

this Court’s attention. That is especially so in the

habeas context. When a federal court awards habeas

relief, it “intrudes on state sovereignty to a degree

matched by few exercises of federal judicial authority.” Harrington v. Richter, 562 U.S. 86, 103 (2011)

(internal quotation omitted). Because Martinez expanded the opportunities for disrupting state convictions, the Court should make sure the circuits apply

it faithfully.

In sum, this case squarely presents an important

federal question on which the circuits are divided.

The Court should grant certiorari.

OPINIONS BELOW

The Sixth Circuit’s opinion below is published at

White v. Warden, 940 F.3d 270 (6th Cir. 2019), and

reproduced at Pet.App.1a.

The Sixth Circuit’s order denying rehearing and

rehearing en banc is reproduced at Pet.App.127a,

and available online at White v. Warden, 2019 U.S.

App. LEXIS 34633 (6th Cir., Nov. 20, 2019).

The District Court’s decision denying habeas relief is reproduced at Pet.App.18a, and available

online at White v. Warden, 2018 U.S. Dist. LEXIS

39635 (S.D. Ohio, Mar. 12, 2018).

JURISDICTIONAL STATEMENT

The Sixth Circuit issued its panel decision on October 8, 2019, and denied the Warden’s petition for

en banc review on November 20, 2019. This petition

timely invokes the Court’s jurisdiction under 28

U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution states:

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and

public trial, by an impartial jury of the

state and district wherein the crime shall

have been committed, which district shall

have been previously ascertained by law,

and to be informed of the nature and

cause of the accusation; to be confronted

with the witnesses against him; to have

compulsory

process

for

obtaining

witnesses in his favor, and to have the

assistance of counsel for his defense.

STATEMENT

1. In July 2012, two men barged into a house on

17th Avenue in Columbus, Ohio. They shot four

people, killing two of them. The two survivors identified Vincent White—the respondent here—as one of

the two shooters. Pet.App.86a–87a.

About a month later, a grand jury indicted White,

charging him “with one count of aggravated burglary, three counts of aggravated robbery, four counts of

aggravated murder, two counts of attempted murder,

two counts of felonious assault, and one count of possessing a firearm while under disability.”

Pet.App.86a. White pleaded not guilty and went to

trial, represented by an experienced attorney named

Javier Armengau.

At trial, White “admitted that he was at the

house and shot some of the people there.”

Pet.App.87a. But he claimed he acted in selfdefense. On his telling, he went to the home to buy

drugs and began shooting only when the four victims

forced him to kneel and tried to rob him at gunpoint.

Pet.App.87a

This story never made much sense. For one

thing, one witness testified that White had previously disclosed his plan to rob the house. Pet.App.86a–

87a. In addition, “[f]orensic evidence regarding the

direction and angles from which some of the victims

were shot tended to contradict White’s version of the

events.” Pet.App.87a. For example: “White and the

other shooter each fired at least six times and the

four victims did not return fire”; one of the victims

“was shot as if he were getting up from a seated position” while another “was shot in the back shoulder”;

and neither of the “two guns … used in the shooting”

were “in the possession of the house occupants.”

Pet.App.87a.

The jury convicted White on all counts. And, after holding a sentencing hearing, the trial court sentenced White to life without the possibility of parole.

2. White appealed his sentence. He retained a

new attorney to assist him in doing so. White claims

that, at this point, he learned for the first time that

Javier Armengau was under indictment for serious

crimes while representing White at trial.

Pet.App.3a–4a. The same prosecutor’s office that

had indicted White indicted Armengau, too. This,

White said, created a conflict of interest and thus denied him his Sixth Amendment right to counsel.

Pet.App.90a.

The state appellate court held that White could

not properly raise this issue on direct appeal. The

court explained that the record contained “no evidence or information whatsoever about Armengau’s

particular situation.” Pet.App.91a. Nor did the record contain any information “indicating White was

unaware of Armengau’s situation” at trial.

Pet.App.91a. Given the absence of this information,

the court concluded that the issue should have been

raised in a postconviction proceeding after developing the facts. “A direct appeal, where the record is

limited and where the record contains no mention of

any of the relevant facts at issue, is not the vehicle to

make such an argument.”

Pet.App.91a; accord

Pet.App.108a–09a ¶32 (Bruner, J., concurring in part

and dissenting in part) (agreeing with the majority’s

analysis of the ineffective-assistance issue).

White sought review in the Supreme Court of

Ohio, but the court declined to take his case.

Pet.App.84a.

3. By the time the Ohio Court of Appeals issued

its decision, the deadline for seeking statepostconviction relief had already expired. White had

not filed a protective petition or otherwise tried to

initiate state-postconviction proceedings.

White did eventually file a petition for postconviction relief in the state trial court. Not surprisingly,

the trial court denied the petition as untimely.

Pet.App.82a. White compounded his timeliness problem by failing to timely appeal the trial court’s dismissal. Not surprisingly, the appellate court rejected

the untimely appeal of White’s untimely postconviction petition. Pet.App.81a. White never sought review in the Supreme Court of Ohio.

4. To understand what happened in federal court,

it is necessary to pause for a moment and say some-

thing about the procedural-default doctrine. That

doctrine bars federal courts from awarding habeas

relief for claims “that a state court refused to hear

based on an adequate and independent state procedural ground.” Davila v. Davis, 137 S. Ct. 2058, 2062

(2017). For example, if a petitioner fails to timely

raise a claim in state court, and if the state court refuses to hear the claim on that basis, the claim is

procedurally defaulted.

Federal courts may excuse a procedural default

only if the petitioner “can establish ‘cause’ to excuse

the procedural default and demonstrate that he suffered actual prejudice from the alleged error.” Id.

“To establish ‘cause,’” a petitioner “must ‘show that

some objective factor external to the defense impeded

counsel’s efforts to comply with the State’s procedural rule.’” Id. at 2065 (quoting Murray v. Carrier, 477

U.S. 478, 488 (1986)). Because the conduct of one’s

lawyer is usually attributed to his client, the poor

performance of a lawyer usually does not constitute

“cause” sufficient to excuse a procedural default.

But there is a narrow exception to this rule. In

Martinez v. Ryan, 566 U.S. 1 (2012), this Court recognized that the general rule disadvantages petitioners convicted in States that forbid defendants from

raising ineffective-assistance-of-trial-counsel claims

on direct appeal. In those States, “the collateral proceeding is in many ways the equivalent of a prisoner’s direct appeal as to the ineffective-assistance

claim.” Id. at 11. As a result, a petitioner convicted

in one of these States, if he defaults such a claim because he lacks effective state-postconviction counsel,

might be barred from ever obtaining an adjudication

of his claim, no matter how meritorious it might be.

To avoid this, the Court carved out a narrow exception available to such petitioners. These parties

may establish “cause” to excuse a default by establishing that they had:

(1) an ineffective-assistance-of-trial-counsel

claim that was “substantial,” in the sense of

having “some merit”; and

(2) either no counsel during state-postconviction

proceedings, or counsel that “was ineffective

under the standards of Strickland v. Washington, 466 U.S. 668.”

Martinez, 566 U.S. at 14. Soon after announcing its

decision in Martinez, the Court expanded the opinion’s scope in Trevino v. Thaler, 569 U.S. 413, 423

(2013). Martinez initially applied only to petitioners

convicted in States where it is impossible to raise an

ineffective-assistance claim on direct appeal. Trevino

expanded the exception so that it now applies to petitioners convicted in States whose “procedural

framework, by reason of its design and operation,

makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a

claim of ineffective assistance of trial counsel on direct appeal.” Id. at 429 (emphasis added). Thus, after Trevino, the Martinez exception applies to petitioners who could have raised, but would have had

too hard a time raising, an ineffective-assistance

claim on direct appeal.

Martinez and Trevino, by their express terms,

pertain only to the “cause” component of the causeand-prejudice test—neither opinion purports to modify the “prejudice” component. As will become clear

later, however, some courts read Martinez and Trevino to implicitly modify, or altogether eliminate, the

“prejudice” component of the cause-and-prejudice

test. In these courts, a petitioner who satisfies the

Martinez test is entitled to have his default forgiven.

5. Now return to White’s federal proceedings. After the District Court denied him relief on the merits,

he appealed to the Sixth Circuit. And after the parties filed their briefs, the Sixth Circuit appointed

counsel for White and ordered both sides to submit

supplemental briefs. The court asked for more briefing “on the merits of the underlying conflict-ofinterest-of-trial-counsel claim.” Order, Doc. 23-2.

The court also requested “supplemental briefing on

what, if any, effect Martinez v. Ryan, 566 U.S. 1

(2012), and Trevino v. Thaler, 569 U.S. 413 (2013),

have on the resolution of the instant petition, including the possibility of supplementing the record.” Id.

White’s supplemental brief addressed Martinez

and Trevino primarily in a footnote in the summary

of argument. That footnote said, in relevant part:

any failure by [White’s] attorneys to

preserve [his] federal rights in Ohio’s

courts constitutes sufficient cause to

excuse the procedural default on habeas

review. Cf., Martinez v. Ryan, 566 U.S. 1,

132 S. Ct. 1309 (2012); Trevino v. Thaler,

569 U.S. 413, 133 S. Ct. 1911 (2013).

Supp. Br., Doc. 31, at 8–9, n.3 (6th Cir.). White’s

brief also asserted, with a citation to Martinez, that

his “trial attorney’s and appellate counsel’s failure to

complete or supplement the record on appeal, or to

file a timely State post-conviction petition, constitute[d] a Sixth Amendment violation sufficient to

permit federal habeas review.” Id. at 18. The brief

did not otherwise address Martinez or Trevino—it

said nothing else about the relevance of Martinez and

Trevino to this case, and it never addressed their relation to the procedural-default doctrine or their impact on the cause-and-prejudice test.

In response, the Warden argued that White procedurally defaulted the ineffective-assistance-of-trialcounsel claim because he never properly raised it in

state court. Supp. Br., Doc. 34, at 33–34, n.4 (6th

Cir.). In addition, the Warden argued that the narrow Martinez exception did not excuse the default.

Supp. Br., Doc. 34, at 34 & n.5. Again, that exception applies only in cases where state law did not allow the petitioner to raise the ineffective-assistanceof-trial-counsel claim until state-postconviction proceedings. Trevino, 569 U.S. at 423. And, as the

Sixth Circuit had previously recognized, Ohio’s “bifurcated review process” does allow petitioners to

press ineffective-assistance-of-trial-counsel claims on

direct review. Supp. Br., Doc. 34, at 34 & n.5 (citing

Moore v. Mitchell, 708 F.3d 760, 785 (6th Cir. 2013)).

Therefore, the Warden argued, the Martinez exception was “not applicable.” Id., at 34 n.5.

The Sixth Circuit vacated and remanded. It

agreed with the Warden that White procedurally defaulted his claim by failing to properly raise it in

state-court proceedings. Pet.App.8a–9a. But the

court determined that White’s procedural default

could be excused under the narrow Martinez exception. Martinez, the Sixth Circuit reasoned, applied to

White’s case because Ohio law effectively barred

White from raising his ineffective-assistance-of-trialcounsel claim on direct appeal. Pet.App.11a–15a.

And White satisfied Martinez’s requirements: (1) he

had an ineffective-assistance-of-trial-counsel claim

that was “substantial” in the sense of being “not

without ‘any merit’”; and (2) he “was without counsel

during

his

state

collateral

proceedings.”

Pet.App.10a–11a (internal quotation omitted).

As noted above, petitioners who can make the

Martinez showing establish “cause” to excuse a procedural default. Federal courts will excuse a procedural default only if the petitioner “can establish

‘cause’ to excuse the procedural default and demonstrate that he suffered actual prejudice from the alleged error.” Davila, 137 S. Ct. at 2062 (emphasis

added). But the Sixth Circuit did not conduct an actual-prejudice inquiry. Instead, it concluded that

White was entitled to have his procedural default

forgiven simply by establishing “cause” under Martinez. In so holding, the Court relied on a Third Circuit decision and a now-rejected portion of a plurality

opinion from the en banc Ninth Circuit. Both opinions state that a petitioner who satisfies Martinez’s

“some merit” showing is not required to make any

other showing of prejudice to have his default forgiven. Pet.App.15a (citing Detrich v. Ryan, 740 F.3d

1237, 1246 (9th Cir. 2013) (en banc) (plurality);

Workman v. Superintendent Albion SCI, 915 F.3d

928, 940 (3d Cir. 2019)).

After holding that White was entitled to have his

procedural default forgiven, the Sixth Circuit remanded the case to the District Court, with instructions to review de novo the merits of White’s ineffective-assistance claim.

6. The Warden petitioned for en banc review, arguing that habeas petitioners who satisfy Martinez

must prove actual prejudice to have their procedural

defaults forgiven. The Sixth Circuit denied the Warden’s en banc petition on November 20, 2019. Its or-

der stated that the original panel concluded “that the

issues raised in the petition were fully considered

upon the original submission and decision of the

case.” Pet.App.127a. The Warden, after obtaining a

stay of the mandate, timely filed this petition for a

writ of certiorari.

REASONS FOR GRANTING THE PETITION

The Court should grant this petition to resolve a

multi-dimensional circuit split concerning Martinez

v. Ryan, 566 U.S. 1 (2012). The issue is important.

It affects the ease with which habeas courts can intrude on state sovereignty by upending state convictions based on legal errors never presented to a state

court. And the question is more important today

than it was the day this Court decided Martinez because of Trevino v. Thaler, 569 U.S. 413 (2013). That

case drastically (and indeterminately) expanded the

number of States whose laws may give rise to Martinez claims. While Martinez itself created an exception applicable only to petitioners convicted in States

that prohibit raising ineffective-assistance claims on

direct appeal, Trevino expanded the exception to cover petitioners convicted in States whose laws make it

difficult to raise an ineffective-assistance claim on

direct appeal.

In sum, this case presents a clean vehicle for resolving a circuit split on an issue that greatly affects

the States. This Court should grant review.

The circuits are split regarding whether

and how the actual-prejudice requirement

applies in Martinez cases.

If a petitioner defaults an ineffective-assistanceof-trial-counsel claim with “some merit,” does Mar-

tinez v. Ryan allow a federal court to excuse the procedural default without requiring any further showing of prejudice? The circuits have answered this

question in various, inconsistent ways. This Court

should grant certiorari to restore uniformity to the

law.

A. Martinez creates a narrow exception to

the procedural-default doctrine.

This case involves two general rules and two narrow exceptions to those rules.

The first general rule is that federal courts cannot

award habeas relief to petitioners based on procedurally defaulted claims. In other words, they cannot generally award habeas relief based on legal theories “that a state court refused to hear based on an

adequate and independent state procedural ground.”

Davila v. Davis, 137 S. Ct. 2058, 2062 (2017).

The exception to this first rule is the “cause and

prejudice” exception. Under that exception, federal

courts may entertain procedurally defaulted claims if

the petitioner “can establish ‘cause’ to excuse the

procedural default and demonstrate that he suffered

actual prejudice from the alleged error.”

Id.

“[C]ause under the cause and prejudice test must be

something external to the petitioner, something that

cannot fairly be attributed to him.” Coleman v.

Thompson, 501 U.S. 722, 753 (1991). To show “prejudice,” the petitioner must prove more than “a possibility of prejudice”; he must show that the alleged errors “worked to his actual and substantial disadvantage.” United States v. Frady, 456 U.S. 152, 170

(1982).

The second general rule is that inadequate performance of state-postconviction counsel is not

“cause” for procedural-default purposes. Davila, 137

S. Ct. at 2062. In other words, if a habeas petitioner

procedurally defaults a claim by failing to timely

raise it in his state-postconviction proceedings, he

cannot generally avoid default by invoking postconviction counsel’s performance, no matter how bad it

might have been. Id. This general rule follows from

the principle that “cause,” in the procedural-default

context, must be an “objective factor external to the

defense” that caused the default. Id. at 2065 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). “A

factor is external to the defense if it ‘cannot fairly be

attributed to’ the prisoner.” Id. (quoting Coleman v.

Thompson, 501 U.S. 722, 753 (1991)). The actions of

postconviction counsel, however, are not external to

the defense; under “well-settled principles of agency

law,” any ineffectiveness on the part of statepostconviction counsel is imputed to the petitioner.

Coleman, 501 U.S. at 753–54.

There is a “narrow” exception to this second general rule. Martinez, 566 U.S. at 9; accord Trevino,

569 U.S. 413. Under this Court’s decisions in Martinez and Trevino, a petitioner who was effectively

prohibited by state law from raising an ineffectiveassistance-of-trial counsel claim on direct appeal,

and who procedurally defaulted the claim by failing

to properly raise it in state-postconviction proceedings, can establish “cause” to excuse that default by

showing that he:

(1) had an ineffective-assistance-of-trial-counsel

claim that was “substantial,” in the sense of

having “some merit,” and

(2) either no counsel during state-postconviction

proceedings, or counsel that “was ineffective

under the standards of Strickland v. Washington, 466 U.S. 668.”

Martinez, 566 U.S. at 14; accord Trevino, 569 U.S. at

423. The first of these prongs, at least, is easily satisfied. Unless the underlying claim “does not have

any merit or … is wholly without factual support,”

courts will deem it “substantial.” Martinez, 566 U.S.

at 16. Many courts analogize this to the easily-met

standard for securing a certificate of appealability in

a habeas case. See, e.g., Ramirez v. Ryan, 937 F.3d

1230, 1241 (9th Cir. 2019); Hittson v. GDCP Warden,

759 F.3d 1210, 1269 (11th Cir. 2014); Cox v. Horn,

757 F.3d 113, 119 (3d Cir. 2014).

Martinez created this narrow exception to fix a

perceived inequity for petitioners convicted in States

that forbid defendants from raising ineffectiveassistance-of-trial-counsel claims on direct appeal.

In those States, “the collateral proceeding is in many

ways the equivalent of a prisoner’s direct appeal as

to the ineffective-assistance claim.” Martinez, 566

U.S. at 11.

And defendants “are generally ill

equipped to represent themselves” in these de facto

appeals, “because they do not have a brief from counsel or an opinion of the court addressing their claim

of error.” Id. (internal quotation omitted). As a result, convicted criminals who have no postconviction

counsel, or who receive inadequate assistance from

postconviction counsel, are at a heightened risk of

procedurally defaulting their ineffective-assistanceof-trial-counsel claims. If they do indeed procedurally default the claim, then there is a good chance no

court will ever address the claim, no matter how

meritorious it might be. The narrow Martinez excep-

tion ensures that petitioners can establish “cause”

based on the absence or ineffective performance of

state-postconviction counsel.

B. The circuits are split regarding whether

a petitioner who defaults a claim with

“some merit” must show any further

prejudice to have his default excused.

Martinez purports to modify only the “cause”

component of the cause-and-prejudice test. It “does

not address—let alone modify—the standard’s prejudice prong.” Detrich v. Ryan, 740 F.3d 1237, 1260

(9th Cir. 2013) (en banc) (Nguyen, J., concurring in

judgment). Nonetheless, the circuits are split regarding whether a petitioner who satisfies Martinez’s

“some merit” requirement must make any additional

showing of prejudice before having his procedural default excused.

1. The Fifth, Ninth, and Eleventh

Circuits always or usually

(depending on the circuit)

require Martinez petitioners to

show actual prejudice over and

above the “some merit”

requirement.

In at least three circuits—the Fifth, Ninth, and

Eleventh Circuits—a petitioner seeking to excuse a

procedural default under Martinez must show prejudice over and above Martinez’s “some merit” requirement. But these circuits disagree among themselves regarding what that further showing entails

and how it relates to the cause-and-prejudice standard.

Eleventh Circuit. In the Eleventh Circuit, a petitioner who satisfies Martinez—a petitioner with a

“substantial”

ineffective-assistance-of-trial-counsel

claim that he defaulted because he had either no

counsel or ineffective counsel during statepostconviction proceedings—establishes only “cause.”

Raleigh v. Sec’y, Fla. Dep’t of Corr., 827 F.3d 938,

957–58 (11th Cir. 2016). To have his default excused, the petitioner must additionally satisfy the

prejudice component of the cause-and-prejudice test:

“In order to establish prejudice to excuse a default,

the petitioner must show ‘that there is at least a reasonable probability that the result of the proceeding

would have been different’ absent the constitutional

violation.” Id. at 957 (citation omitted). Thus, the

court in Raleigh rejected the petitioner’s Martinez

claim after concluding that the petitioner “was not

prejudiced by his collateral counsel’s failure to raise”

the underlying ineffective-assistance-of-trial-counsel

claim. Id. at 958; cf. Harris v. Comm’r, Ala. Dep’t of

Corr., 874 F.3d 682, 689–91 (11th Cir. 2017).

Other courts and judges have embraced the same

approach, though not in binding opinions. In dicta,

the Eighth Circuit once explained:

“Under

the Martinez rule, state collateral counsel’s ineffectiveness in failing to raise a viable claim of ineffective assistance by trial counsel can serve as cause to

overcome the procedural default. If the habeas

claimant can also show prejudice, the procedural default may be excused …” United States v. Lee, 792

F.3d 1021, 1024 (8th Cir. 2015) (citation omitted).

And in an opinion concurring in the result of the en

banc Ninth Circuit, Judge Nguyen explained that

Martinez did “not address—let alone modify—the

[cause-and-prejudice] standard’s prejudice prong.”

Detrich, 740 F.3d at 1260 (Nguyen, J., concurring in

the result). “Rather, the Supreme Court created a

‘narrow exception’ to ‘modify the unqualified statement … that an attorney’s ignorance or inadvertence

in a post-conviction proceeding does not qualify

as cause to excuse a procedural default.” Id. at 1261

(quoting Martinez, 132 S. Ct. at 1315). This means

that petitioners who satisfy Martinez must separately prove actual prejudice. Id. at 1261–62.

This approach contradicts the Sixth Circuit’s decision below, which excused White’s procedural default without requiring him to show actual prejudice.

Ninth Circuit. In the Ninth Circuit, Martinez

applies differently depending on whether the petitioner had state-postconviction counsel. Petitioners

seeking to invoke Martinez based on the ineffective

performance of postconviction counsel must demonstrate “a reasonable probability that, absent the deficient performance, the result of the post-conviction

proceedings would have been different.” Ramirez,

937 F.3d. at 1241 (quoting Clabourne v. Ryan, 745

F.3d 362, 377 (9th Cir. 2014)). In contrast, petitioners who lacked state-postconviction counsel need not

make any showing of prejudice beyond Martinez’s

“some merit” requirement. See Rodney v. Filson, 916

F.3d 1254, 1260 n.2 (9th Cir. 2019). This rule derives from the Ninth Circuit’s unique interpretation

of Martinez and Trevino—an interpretation that

takes some unpacking.

Begin by considering again Martinez’s elements.

(1) the petitioner must point to an ineffectiveassistance-of-trial-counsel claim that was

“substantial,” in the sense of having “some

merit”; and

(2) the petitioner must demonstrate that he had

either no counsel during state-postconviction

proceedings, or counsel that “was ineffective

under the standards of Strickland v. Washington, 466 U.S. 668.”

Martinez, 566 U.S. at 14; accord Trevino, 569 U.S. at

423.

According to the Ninth Circuit, the first of these

requirements suffices to establish “‘prejudice’ for

purpose of the … cause and prejudice’ analysis in

the Martinez context.” Clabourne, 745 F.3d at 377;

accord Ramirez, 937 F.3d at 1241. Thus, if a habeas

petitioner in the Ninth Circuit shows that his underlying ineffective-assistance-of-trial counsel claim has

“some merit”—if the claim is neither without “any

merit” nor “wholly without factual support”—he has

satisfied the prejudice component of the cause-andprejudice test. Ramirez, 937 F.3d at 1241 (quoting

Martinez, 566 U.S. at 14–16).

The Ninth Circuit has determined that this reduced prejudice showing follows from Martinez itself.

If petitioners may have their procedural defaults excused only upon a showing of actual prejudice, the

argument goes, then Martinez’s some-merit requirement would be superfluous. See Detrich, 740 F.3d at

1245–46 (en banc) (plurality op.). Judge Nguyen, in

the opinion discussed above, exposed the flaw in this

logic. She explained that retaining the actualprejudice standard would not make the “some merit”

decision superfluous. To the contrary, the “some

merit” requirement would serve to efficiently structure the cause-and-prejudice test: “Only if” the petitioner’s “claim is substantial and Martinez’s other

cause requirements are met must the federal court

perform” the “more searching prejudice inquiry.” Id.

at 1261 (Nguyen, J., concurring in judgment).

Notwithstanding its watering down of the prejudice component of the cause-and-prejudice test, the

Ninth Circuit still requires most petitioners to prove

actual prejudice in order to have a procedural default

excused under Martinez. Why? Because Martinez

incorporates the ineffective-assistance standard of

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

Strickland contains an actual-prejudice requirement

of its own. Again, Martinez applies in cases where

state-postconviction counsel “was ineffective under

the standards of Strickland v. Washington, 466 U.S.

668.” Martinez, 566 U.S. at 14. And to prove ineffectiveness under Strickland v. Washington, the aggrieved party must show that his attorney performed

deficiently and that he was prejudiced by the deficient performance. See Strickland, 466 U.S. at 687.

Translated to the Martinez context, this means that

petitioners seeking to excuse a procedural default

based on state-postconviction counsel’s ineffectiveness “must demonstrate … ‘that both’”: “(a) postconviction counsel’s performance was deficient, and

(b) there was a reasonable probability that, absent

the deficient performance, the result of the postconviction proceedings would have been different.”

Ramirez, 937 F.3d. at 1241 (quoting Clabourne, 745

F.3d at 377).

By incorporating both prongs of Strickland into

the “cause” component of the cause-and-prejudice

test, the Ninth Circuit bakes an actual-prejudice

showing into the “cause” component of the causeand-prejudice test. This might suggest that the

Ninth Circuit’s approach to the “prejudice” component is irrelevant. After all, what difference does it

make whether the Ninth Circuit considers actual

prejudice as part of the “cause” or “prejudice” component of the cause-and-prejudice test?

In most cases, the difference is strictly formal.

But the difference matters in Martinez cases resting

on the absence, rather than the ineffectiveness, of

state-postconviction counsel. Again, those seeking to

invoke the Martinez exception can do so based on

state-postconviction counsel’s ineffectiveness. But

they can also do so by showing that they had “no

counsel … during” state-postconviction proceedings.

Trevino, 569 U.S. at 423 (quotation marks omitted).

Of course, Strickland has no bearing on this latter

class of petitioners—petitioners who had no statepostconviction counsel cannot, and need not, show

that their state-postconviction attorney “was ineffective under the standards of Strickland.” Martinez,

566 U.S. at 14. Accordingly, in the Ninth Circuit,

that narrow class of petitioners is not required to

show prejudice under Strickland and thus not required to show any “prejudice over and above” Martinez’s “some merit” showing. Rodney, 916 F.3d at

1260 n.2.

The Fifth Circuit. The Fifth Circuit requires

petitioners to prove prejudice in addition to the

“some merit” showing. But the court’s approach to

evaluating prejudice varies across cases. In some

cases, the court’s approach resembles that of the

Eleventh Circuit. In Canales v. Stephens, for example, the court explained that a petitioner seeking to

have his default excused had to first “prove prejudice

as a result of his trial counsel’s deficient performance,” even though he had already shown that his

claim had “some merit.” 765 F.3d 551, 571 (5th Cir.

2014).

In other cases, the Fifth Circuit applies a framework that looks more like the Ninth Circuit’s. Take,

for example, Wessinger v. Vannoy, 864 F.3d 387

(2017), and Newbury v. Stephens, 756 F.3d 850 (5th

Cir. 2014) (per curiam). In those cases, the court assessed actual prejudice as part of the Strickland

analysis baked into Martinez itself. Each case thus

required the petitioner to show “‘a reasonable probability that he would have been granted state habeas

relief’ if not for counsel’s deficiency.” Wessinger, 864

F.3d at 391 (quoting Newbury, 756 F.3d at 871–72).

Insofar as the Fifth Circuit requires an actualprejudice showing only in Martinez cases where the

petitioner had state-postconviction counsel, that circuit, like the Ninth, would require no showing of actual prejudice in cases where the petitioner had no

counsel during state-postconviction proceedings.

2. The Third, Sixth, and Seventh

Circuits hold that Martinez

eliminated any prejudice

requirement.

In the Third, Sixth, and Seventh Circuits, a petitioner who shows that his ineffective-assistance-oftrial-counsel claim has “some merit” can have his default excused under Martinez without any additional

showing of prejudice. Brown v. Brown, 847 F.3d 502,

513 (7th Cir. 2017); Workman v. Superintendent Albion SCI, 915 F.3d 928, 939 (3d Cir. 2019);

Pet.App.15a.

Each of these circuits interprets Martinez and

Trevino as effectively eliminating the “prejudice”

component of the cause-and-prejudice test. These

circuits will excuse a habeas petitioner’s procedural

default if he can make two showings. First, he must

show that his underlying ineffective-assistance-oftrial-counsel claim has “some merit.” Brown, 847

F.3d at 513, 514–15; accord Pet.App.10a, 15a; Workman, 915 F.3d at 941. Second, the petitioner must

show that he had no counsel during statepostconviction

proceedings,

that

statepostconviction counsel rendered “deficient performance” under Strickland’s “first prong.” Brown, 847

F.3d at 513, 514–15; accord Pet.App.11a. Any petitioner who makes these two showings is entitled to

have his procedural default excused—he need not

prove “actual prejudice.”

This approach effectively reads the prejudice

component out of the cause-and-prejudice test.

Whereas most habeas petitioners in the Third, Sixth,

and Seventh Circuits must show actual prejudice to

have their procedural defaults excused, petitioners

seeking to have their defaults excused under Martinez do not.

Whatever Martinez requires, it should require the

same thing in every circuit in the country. That is

not the state of the law today. The Court should

grant certiorari to resolve the split.

II. This is a good vehicle for addressing the

question presented.

This case is an appropriate vehicle for addressing

the question presented. There are a few reasons

why.

First, the case cleanly poses the question presented because the Sixth Circuit did not address actual

prejudice at all. If it had, there would be a risk that

the actual-prejudice finding might moot the question

whether petitioners must prove actual prejudice in

the first place. Since the Sixth Circuit did not address actual prejudice, that risk does not arise here—

though it might arise in future cases about the same

circuit split.

Second, White had no state-postconviction counsel. Pet.App.11a. As a result, this case presents all

of the circuit split’s aspects. To see why, recall that

there are at least three ways of thinking about the

interaction between Martinez and actual prejudice.

Under the first approach, Martinez petitioners must

show prejudice over and above the “some merit”

showing to meet the cause-and-prejudice standard’s

prejudice prong. That is the rule in the Eleventh

Circuit and also (perhaps) in the Fifth and Eighth

Circuits. Under the second approach, petitioners

must show actual prejudice in the course of showing

that postconviction counsel was ineffective. That approach, adopted by the Ninth Circuit (and perhaps

the Fifth), means that Martinez petitioners must

show prejudice beyond the some-merit showing if

and only if they were represented by postconviction

counsel; petitioners who represented themselves in

state-postconviction proceedings can have their defaults forgiven without showing actual prejudice.

Under the third approach, the “some merit” requirement in Martinez establishes all the prejudice that is

required. That is the rule in the Third, Sixth, and

Seventh Circuits.

Because White had no state-postconviction counsel, all three of these options are on the table. The

Court could reverse the Sixth Circuit for failing to

require a showing of actual prejudice. It could affirm

the Sixth Circuit on the ground that the “some merit”

showing satisfies the cause-and-prejudice standard’s

actual-prejudice requirement. Or the Court could

affirm on the ground that White, because he represented himself pro se in his state-postconviction proceedings, was not required to show actual prejudice.

Finally, this case presents no procedural barriers

that would keep the Court from addressing the circuit split. In his response to the Warden’s en banc

petition, White suggested that the Warden waived

any argument about the application of Martinez by

“failing to mention” the case in his supplemental

briefing. Petr’s en banc BIO, Doc.41, 3, 7–9 (6th

Cir.). More precisely, White argued that the Warden

showed a lack of “professional respect,” and engaged

in “contemptuous” conduct, by failing to “mention”

Martinez at the supplemental-brief stage. Id. But

the Warden did address Martinez in his supplemental briefing. Specifically, the Warden argued

that the narrow Martinez exception was unavailable

to Ohio petitioners because Ohio allows defendants

to raise ineffective-assistance claims on direct review. See above 9–10.

True, the Warden’s supplemental briefing never

addressed whether petitioners who make the Martinez showing are entitled to have their procedural

defaults excused without regard to whether they can

establish actual prejudice. But the Warden can

hardly be faulted for that. Neither White nor the

Sixth Circuit’s supplemental briefing order raised

the issue. Indeed, White himself, in the brief to

which the Warden was responding, addressed Martinez and Trevino only twice: first in a “cf.” citation

buried in a footnote, and second in a sentence suggesting that White’s trial and direct-appeal lawyers

violated the Sixth Amendment by failing to “file a

timely State post-conviction petition.” See above 9–

10. White never argued that Martinez or Trevino

eliminated the actual-prejudice component of the

cause-and-prejudice test. Once the Sixth Circuit

reached the issue sua sponte in its opinion, the Warden filed a rehearing petition arguing that White had

to show actual prejudice to have his procedural default excused. The Court’s order denying en banc review stated that the panel “fully considered” this issue “upon the original submission and decision of the

case.” Pet.App.127a.

Regardless, any waiver would be irrelevant in

this Court. This Court is “free to address” any issue

“addressed by the court below,” without regard to

whether the parties raised the issue in the lower

court. Lebron v. National R.R. Passenger Corp., 513

U.S. 374, 379 (1995); accord Va. Bankshares v.

Sandberg, 501 U.S. 1083, 1099 n.8 (1991). Since the

Sixth Circuit “passed on the issue presented” when it

awarded White relief without requiring any showing

of actual prejudice, the question whether habeas petitioners must make such a showing is fairly presented for this Court’s review. Va. Bankshares, 501

U.S. at 1099 n.8.

III. The question whether and how the actualprejudice requirement applies in Martinez

cases is exceptionally important.

Habeas relief is available only rarely. Rightly so.

“Federal habeas review of state convictions frustrates both the States’ sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.” Harrington v. Richter, 562 U.S.

86, 103 (2011) (internal quotation omitted). It also

“disturbs the State’s significant interest in repose for

concluded litigation, denies society the right to pun-

ish some admitted offenders, and intrudes on state

sovereignty to a degree matched by few exercises of

federal judicial authority.” Id. (internal quotation

omitted).

The procedural-default doctrine accords with

these principles. “That doctrine, like the federal habeas statute generally, is designed to ameliorate the

injuries to state sovereignty that federal habeas review necessarily inflicts by giving state courts the

first opportunity to address challenges to convictions

in state court, thereby ‘promoting comity, finality,

and federalism.’” Davila, 137 S. C.t at 2070 (quoting

Cullen v. Pinholster, 563 U.S. 170, 185 (2011)). The

doctrine stands for the modest proposition that federal courts should not upend state convictions based

on alleged constitutional violations that the habeas

petitioner failed to properly raise in state court.

Martinez forms an exception to this sovereigntyprotecting doctrine. And the exception invades sovereignty to a greater degree today than it did on the

day Martinez was decided. The reason is Trevino,

which made Martinez applicable even to petitioners

convicted in States where it is possible, though difficult, to raise an ineffective-assistance claim on direct

appeal. Trevino, 569 U.S. at 429. Because of Trevino, the Martinez exception applies to many more petitioners today than it did on the day it was decided.

Trevino, 569 U.S. at 433 (Roberts, C.J., dissenting).

That makes the scope of the sovereignty-invading exception all the more important.

The issue is more important still because many

circuits are misapplying Martinez. First, the approaches adopted by the Third, Sixth, Seventh, and

Ninth Circuits (at least) ignore the fact that Martinez

modifies only the “cause” component of the causeand-prejudice standard. Martinez “does not address—let alone modify—the standard’s prejudice

prong.” Detrich, 740 F.3d at 1260 (Nguyen, J., concurring in judgment). Yet each of these circuits read

Martinez to eliminate the actual-prejudice requirement.

In addition, the Third, Sixth, and Seventh Circuits are applying Martinez in a manner that contradicts this Court’s characterization of Martinez as a

“narrow exception” to the procedural-default doctrine. 566 U.S. at 9. If petitioners need not make

any showing of prejudice beyond identifying an ineffective-assistance-of-counsel claim that is not entirely

meritless, the exception is “broad,” not “narrow.”

Finally, there is the Ninth Circuit’s approach,

which allows petitioners who represented themselves

pro se in state-postconviction proceedings to have

their defaults excused without a showing of actual

prejudice. That contradicts Martinez’s insistence

that it was not requiring States to appoint counsel

for state-postconviction proceedings. Id. at 16. If the

Ninth Circuit’s rule is right, States that funnel ineffective-assistance claims to postconviction proceedings will face strong pressure to appoint statepostconviction counsel. If they fail to do so, then every petitioner who declines to retain his own statepostconviction lawyer will be entitled to have his default forgiven upon satisfying the easy-to-meet “some

merit” requirement. Thus, every State subject to

Martinez that fails to appoint state-postconviction

counsel risks having its convictions reviewed de novo

in federal court.

At the very least, there is a significant probability

that many courts are misapplying Martinez by improperly broadening its narrow exception. That

makes review especially appropriate. Any expansion

of “the narrow exception announced in Martinez []

unduly aggravate[s] the ‘special costs on our federal

system’ that federal habeas review already imposes.”

Davila, 137 S. Ct. at 2070 (quoting Engle v. Isaac,

456 U.S. 107, 128 (1982)). But even if the circuits

that read Martinez to eliminate the actual-prejudice

requirement were correct, it would be important to

say so definitively. The law ought to apply uniformly

throughout the country.

CONCLUSION

The Court should grant the petition for certiorari.

DAVE YOST

Ohio Attorney General

BENJAMIN M. FLOWERS*

*Counsel of Record

Ohio Solicitor General

MICHAEL J. HENDERSHOT

Chief Deputy Solicitor General

SHAMS H. HIRJI

Deputy Solicitor General

30 E. Broad St., 17th Floor

Columbus, Ohio 43215

614-466-8980

benjamin.flowers@

ohioattorneygeneral.gov

Counsel for Petitioner

FEBRUARY 2020

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.