Reply Brief — Stephen Hugueley, Petitioner v. Tony Mays, Warden

CAPITAL CASE

No. 20-6929

IN THE

SUPREME COURT OF THE UNITED STATES

STEPHEN HUGUELEY,

Petitioner,

vs.

TONY MAYS, WARDEN RIVERBEND MAXIMUM SECURITY INSTITUTION

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

REPLY TO RESPONDENT’S BRIEF IN OPPOSITION

AMY D. HARWELL

Assistant Chief Capital Habeas Unit

*Counsel of Record

MARSHALL JENSEN

Research and Writing Attorney

FEDERAL PUBLIC DEFENDER

Middle District of Tennessee

Capital Habeas Unit

810 Broadway, Suite 200

Nashville, TN 37203

(615) 736-5047

Amy_Harwell@fd.org

Counsel for Petitioner

TABLE OF CONTENTS

Page

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

I.

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

II.

THE WARDEN’S PUTATIVE DISTINCTION BETWEEN THIS AND

OTHER MARTINEZ CASES IS ILLUSORY: POST-CONVICTION

COUNSEL’S INEFFECTIVENESS CAUSED THE “WAIVER” AND THE

PROCEDURAL DEFAULT ........................................................................... 3

III.

THE WARDEN’S ARGUMENT THAT HUGUELEY IS FACT-BOUND

AND SOLELY ABOUT PETITIONER’S WAIVER IS BELIED BY THE

WARDEN’S SUBSEQUENT USE OF HUGUELEY TO ARGUE THAT

MARTINEZ IS LIMITED ............................................................................ 11

IV.

MR. HUGUELEY’S CLAIMS ARE SUBSTANTIAL UNDER MARTINEZ;

COUNSEL WAS NOT ENTITLED TO RELY ON HIS EXPERTS’

UNINFORMED OPINIONS, BECAUSE TRIAL COUNSEL DID NOT

INVESTIGATE COMPETENCY ................................................................ 12

V.

THE WARDEN DOES NOT CONTEST THAT CERTIORARI IS NEEDED

TO RESOLVE WHETHER THE SIXTH CIRCUIT APPROPRIATELY

JETTISONED WELL-ESTABLISHED EXHAUSTION PRINCIPLES .... 15

VI.

CONCLUSION ............................................................................................ 17

CERTIFICATE OF SERVICE ..................................................................................... 19

i

TABLE OF AUTHORITIES

Cases

Adams v. United States ex rel. McCann, 317 U.S. 269 (1942) .................................. 4

Broadnax v. Lumpkin, 987 F.3d 400 (5th Cir. 2021) ................................................. 1

Chase v. Macauley, 971 F.3d 582 (6th Cir. 2020) ....................................................... 7

Clark v. Nagy, 934 F.3d 483 (6th Cir. 2019) ............................................................... 7

Coleman v. Thompson, 501 U.S. 722 (1991) ............................................................. 10

Duncan v. Henry, 513 U.S. 364 (1995) ..................................................................... 16

Edwards v. Ariz., 451 U.S. 477 (1981) ........................................................................ 4

Escamilla v. Stephens, 749 F.3d 380 (5th Cir. 2014) ................................................. 1

Gray v. Netherland, 518 U.S. 152 (1996) .................................................................. 16

Huff v. United States, 734 F.3d 600 (6th Cir. 2013) .................................................. 7

Hugueley v. Mays, 964 F.3d 489 (6th Cir. 2020) ........................................ 5, 6, 16, 17

Martinez v. Ryan, 566 U.S. 1 (2012) .................................................................. passim

Mayle v. Felix, 545 U.S. 644 (2005) .......................................................................... 16

Medina v. California, 505 U.S. 437 (1992) .................................................................. 4

Miller-El v. Cockrell, 537 U.S. 322 (2003) .................................................................. 2

O'Sullivan v. Boerckel, 526 U.S. 838 (1999) ............................................................. 16

Picard v. Connor, 404 U.S. 270 (1971) ...................................................................... 16

Reid ex rel. Martiniano v. State, 396 S.W.3d 478 (Tenn. 2013) ................................ 4

Trevino v. Thaler, 569 U.S. 413 (2013) ..................................................................... 17

Vandross v. Stirling, 986 F.3d 442 (4th Cir. 2021) ..................................................... 1

Other

Sup. Ct. R. 10(a) ......................................................................................................... 17

Tenn. Sup. Ct. R. 28 ................................................................................................. 3, 4

Sup. Ct. R. 29 ............................................................................................................. 19

ii

I.

INTRODUCTION

Mr. Hugueley’s case presents two issues that require this Court’s attention and

resolution: (1) the disagreement among the circuits as to the application of Martinez

v. Ryan, 566 U.S. 1 (2012), to ineffective assistance of trial counsel claims that are

pled but not developed or presented in an initial state court post conviction

proceeding, and (2) the Sixth Circuit’s jettisoning of established exhaustion principles

to create a new rule that the presentation in state court of any claim of ineffective

assistance of trial counsel necessarily encompasses all claims of ineffective assistance

of trial counsel. Seemingly conceding the conflicts among the circuits1 and that these

issues require this resolution by this Court—and without addressing the second issue

at all—the Warden claims that Mr. Hugueley’s case is an inappropriate vehicle for

the resolution of the Martinez issue.

The Warden’s contention that the case is not a good vehicle to resolve the

questions presented is a fallacy. Only by ignoring the ineffectiveness of postconviction counsel can the Warden contend that “waiver”—caused the default of Mr.

1 Since the filing of the Petition for a Writ of Certiorari (Petition), the courts of appeals

have decided two additional cases that reflect the divergent opinions of the circuits

applying Martinez. See Vandross v. Stirling, 986 F.3d 442, 451 (4th Cir. 2021) (“We

have already held on more than one occasion that Martinez, which authorizes a

federal court to consider a new claim that was procedurally defaulted, does not

provide a similar exception for new evidence supporting a claim that was in fact

presented in state court.”); Broadnax v. Lumpkin, 987 F.3d 400, 409 n.7 (5th Cir.

2021) (“‘Thus, once a claim is considered and denied on the merits by the state habeas

court, Martinez [v. Ryan, 566 U.S. 1, 132 S. Ct. 1309, 182 L.Ed.2d 272 (2012) ] is

inapplicable, and may not function as an exception to Pinholster’s rule that bars a

federal habeas court from considering evidence not presented to the state habeas

court.’”) (quoting Escamilla v. Stephens, 749 F.3d 380, 395 (5th Cir. 2014)).

1

Hugueley’s ineffective assistance of trial counsel claims. The Warden’s attempt to

distort the state court’s default ruling fails because the state court could not permit

the “withdrawal” of the petition had Mr. Hugueley’s counsel performed in accordance

with constitutional standards. The Warden seeks to have this Court ignore postconviction counsel’s deficient performance with respect to the Sixth Amendment

claim that trial counsel failed to adequately investigate, develop, and present Mr.

Hugueley’s incompetence to stand trial. As the record amply demonstrates, postconviction counsel—as had trial counsel—failed to investigate or litigate the claim.

Her deficiencies preceded—and foreordained the outcome of—the competency

hearing.

The Warden’s auxiliary argument is that certiorari is not appropriate because

Mr. Hugueley’s Sixth Amendment claims were not substantial under Martinez. This,

too, fails, because the record reflects that trial counsel failed to investigate Mr.

Hugueley’s mental health condition despite numerous red flags, failed to ensure

compliance with a court order that would have revealed his marked brain

abnormalities, and neglected to even read any of the records that documented a long

history of mental illness, suicidality, and trauma. These failures constitute a serious

departure from prevailing professional norms and constitute deficient performance.

Accordingly Mr. Hugueley’s ineffective assistance of trial counsel claims, clearly

having “some merit,” is substantial under Martinez. Martinez, 566 U.S. at 14 (citing

Miller-El v. Cockrell, 537 U.S. 322 (2003)).

2

II.

THE WARDEN’S PUTATIVE DISTINCTION BETWEEN THIS AND

OTHER MARTINEZ CASES IS ILLUSORY: POST-CONVICTION

COUNSEL’S INEFFECTIVENESS CAUSED THE “WAIVER” AND THE

PROCEDURAL DEFAULT.

The Warden repeatedly asserts Mr. Hugueley’s case is not an appropriate

vehicle for the resolution of the Martinez question presented because Mr. Hugueley’s

“waiver” caused the default of his claims—not the ineffectiveness of post-conviction

counsel. Brief in Opposition (BIO) at 14–17. Repeatedly making this assertion,

however, does not alter the facts. The only reason the putative “waiver” was accepted

by the state court was post-conviction counsel’s failure to adequately investigate,

plead, and present the claim that trial counsel unreasonably failed to raise Mr.

Hugueley’s incompetence to stand trial. The warden’s argument fails because, had

post-conviction

counsel

reasonably

investigated

and

developed

this

Sixth

Amendment claim, she would have demonstrated that Mr. Hugueley was as

incompetent to waive his post-conviction proceeding as he was to stand trial—and for

the same reasons. The brain malformation that impaired his functioning throughout

his life, causing hallucinations, self-harm, and fits of psychotic behavior, prevented

him from rationally choosing to abandon his post-conviction proceedings—just as it

prevented him from consulting with counsel with a reasonable degree of rational

understanding.

The Tennessee law of competency to waive post-conviction remedies in a

capital case, codified in Tennessee Supreme Court Rule 28, specifies that a capital

defendant must understand “the significance and consequences of withdrawing the

post-conviction petition,” “knowingly, intelligently, and voluntarily, without coercion,

3

withdraw[] the petition,” and be “competent to decide whether to withdraw the postconviction petition.”2 Tenn. Sup. Ct. R. 28, § 11(A)1–4; see also Medina v. California,

505 U.S. 437, 450 (1992) (“[I]t is contradictory to argue that a defendant may be

incompetent, and yet knowingly or intelligently waive his right[s].”) (internal citation

and quotation marks omitted). Under this Rule, the relevant inquiry is “whether the

prisoner possesses ‘the present capacity to appreciate [his or her] position and make

a rational choice with respect to continuing or abandoning further litigation or on the

other hand whether the petitioner is suffering from a mental disease, disorder, or

defect which may substantially affect the petitioner’s capacity.’” Reid ex rel.

Martiniano v. State, 396 S.W.3d 478, 512–13 (Tenn. 2013) (quoting Tenn. Sup. Ct. R.

28 § 11(B)(1)).

Simply, Mr. Hugueley could not have “waived” his right to pursue his postconviction because he was not competent to do so. The Warden has never disputed

the two central opinions that Mr. Hugueley’s experts presented in the federal

proceedings below: (1) that his brain is malformed in a way that inherently shows the

damage long pre-dated his adult convictions; and (2) that this impairment caused him

Tennessee’s rule for determining competency to waive capital post-conviction

proceedings mirrors federal standards of competency. See, e.g., Edwards v. Arizona,

451 U.S. 477, 482 (1981) (A valid waiver must be a “knowing and intelligent

relinquishment or abandonment of a known right or privilege.”); Adams v. U.S. ex

rel. McCann, 317 U.S. 269, 277 (1942) (“The task of judging the competence of a

particular accused cannot be escaped by announcing delusively simple rules of trial

procedure which judges must mechanically follow. The question in each case is

whether the accused was competent to exercise an intelligent, informed judgment.”).

2

4

to be unable to consult with his lawyer with a degree of rational understanding as

required by the governing law.

Instead of engaging with Mr. Hugueley’s incompetence, the Warden points

talismanically to Mr. Hugueley’s “waiver” in an attempt to convince this Court that

this case is fact-bound and “not an appropriate vehicle” for resolving the circuit split.

BIO at 14 (claiming that procedural default is solely attributable to Mr. Hugueley’s

waiver). The Warden’s argument is unavailing because, just as in every case to which

Martinez applies, the procedural default in this case—that is, Mr. Hugueley’s

putative “waiver”—was caused by post-conviction counsel’s ineffectiveness. See, e.g.,

Martinez, 566 U.S. at 14 (holding that the procedural default doctrine may not bar

an “ineffectiveness claim of ineffective assistance of trial counsel when an attorney’s

errors (or the absence of an attorney) caused a procedural default in an initial-review

collateral proceeding”) (emphasis added),

The Warden posits that post-conviction counsel “‘vigorously raised Hugueley’s

ineffective-assistance-of-counsel claim, including how trial counsel failed to properly

litigate his competency to stand trial or waive the presentation of mitigating

evidence.’” BIO at 13 (quoting Hugueley v. Mays, 964 F.3d 489, 500 (6th Cir. 2020)).

This is a dubious proposition considering that, by her own admission, post-conviction

counsel had neither collected the relevant records nor conducted any investigation at

the time she filed Mr. Hugueley’s amended petition. R. 130-20, PageID 7406. At the

time Mr. Hugueley allegedly “waived” his post-conviction proceedings, postconviction counsel had not investigated basic aspects of his background and mental

5

functioning. R. 130-20, PageID 7420. Furthermore, the amended petition omitted any

claim that trial counsel had been ineffective for failing to challenge Mr. Hugueley’s

prior convictions. Id. at 7406–07; 42-1, PageID 1622–82.

The Warden misdirects the Court, eliding post-conviction counsel’s failures

with a characterization that she “vigorously challenged” the court’s expert’s

conclusions and credentials and proffering a meaningless observation that “[t]he postconviction court afforded Hugueley the opportunity to present additional evidence

regarding

his

competency

after

the

hearing,

and

post-conviction

counsel

supplemented the record with a report questioning the adequacy and reliability of Dr.

Seidner’s evaluation.” BIO at 9 (citing Hugueley, 964 F.3d at 493, 497). That postconviction counsel managed to show up to court, ask questions of the expert, and then

submit a report she obtained pro bono opining that Dr. Seidner’s methodology was

flawed, does not transform her failures into constitutionally adequate representation.

Indeed, the record unquestionably demonstrates that post-conviction counsel’s

performance with respect to the trial counsel ineffectiveness claim was

constitutionally deficient. She failed to investigate, despite the numerous facts that

compelled a mental health investigation. R. 130-20, PageID 7406 (attesting that

counsel had done “minimal” investigation prior to submitting the petition); id. at

PageID 7408 (counsel had “spent very little time on the preparation of Mr. Hugueley’s

case”); id. at PageID 7420 (noting that counsel had conducted no social history

investigation prior to the “waiver” proceeding). She failed to adequately plead his

Sixth Amendment claims. R. 130-20, PageID 7406–07. She failed to comply with basic

6

pleading requirements resulting in the court’s denial of her request for expert

assistance. R. 130-20, PageID 7414–15. These compounding failures culminated in

post-conviction counsel’s failure to secure any expert assistance. In turn, the postconviction court had no information with which to evaluate Mr. Hugueley’s

competency other than the opinion of the court’s expert, Dr. Seidner. Counsel’s

failures led inexorably to the court’s erroneous conclusion that Mr. Hugueley was

competent because her failures deprived her of the knowledge and expert assistance

necessary to challenge Dr. Seidner’s suspect conclusions.3

Dr. Seidner concluded that Mr. Hugueley was competent to withdraw his

petition and reasoned that, although Mr. Hugueley’s views were unconventional, his

desire to die was a reasonable reaction to the conditions of prison life. See generally

R. 42-7, PageID 2595–2613 (Seidner Report). Had counsel performed adequately,

however, counsel would have discovered Mr. Hugueley’s organic brain impairments

and would have been able to disprove these conclusions. First and foremost, counsel’s

failure to secure brain imaging to support the Sixth Amendment claim or challenge

To the extent that there is any question about post-conviction counsel’s deficient

representation resulted in the procedural default, the district court should have

conducted an evidentiary hearing and afforded Mr. Hugueley the opportunity to

prove that he established cause to excuse the default. See Clark v. Warden, 934 F.3d

483, 494 (6th Cir. 2019) (“As a general matter, ‘[w]here there is a factual dispute, the

habeas court must hold an evidentiary hearing to determine the truth of the

petitioner’s claims.’”) (quoting Huff v. United States, 734 F.3d 600, 607 (6th Cir.

2013)). See also Chase v. MaCauley, 971 F.3d 582, 592 (6th Cir. 2020) (“An argument

that ineffective assistance of counsel should excuse a procedural default is treated

differently than a free-standing claim of ineffective assistance of counsel. . . . In

particular, the latter must meet the higher AEDPA standard of review, while the

former need not.”) (internal citation and quotation marks omitted).

3

7

the waiver of the petition meant that Mr. Hugueley organic brain abnormalities went

undiscovered. The failure to obtain these scans—due to an abject failure to abide by

the pleading requirements—was undoubtedly prejudicial as these scans definitively

and quantifiably show that Mr. Hugueley is not capable of rational decision-making.

Counsel’s failure to secure her own expert evaluation to support the Sixth

Amendment claim similarly resulted in her failure to discredit Dr. Seidner’s opinions.

Dr. Seidner opined that Mr. Hugueley was not suicidal, despite elevations on both

the indexes for suicidality and depression on the Personality Assessment Inventory,

a lengthy, well-documented history of suicide attempts, and Mr. Hugueley’s

representations to Dr. Seidner that he was attempting to commit “suicide by state.”

R. 42-7, PageID 2607–09; R. 42-12, PageID 2933. Dr. Seidner also discounted the

well-documented history of Mr. Hugueley’s auditory hallucinations and diagnoses of

psychiatric disorders. See R. 127-4, PageID 5813–16. He erroneously diagnosed Mr.

Hugueley with a personality disorder—a diagnosis that required the absence of any

Axis I mental illness. R. 127-4, PageID 5815–16. Furthermore, she was unequipped

to cross-examine Dr. Seidner, both because she lacked her own expert and because

she was unfamiliar with Mr. Hugueley’s history of mental problems and had failed to

conduct meaningful investigation into his case—even by the late date of his

competency hearing. See R. 130-20, PageID 7420 (“I did not have additional materials

to submit to Dr. Seidner because no social history or mitigation investigation had

been done in this case.”).

8

The Warden’s assessment that post-conviction counsel did an adequate job

with what she had to work is inapposite. The question is not her skill at making

purses from sow’s ears. The question is why she had only sow’s ears with which to

work. Post-conviction counsel has answered that question explicitly. She did not have

the proof of Mr. Hugueley’s brain impairment to support the Sixth Amendment claim

and to demonstrate that he was incompetent to waive post-conviction review because

she could not get the court to approve brain scans. R. 130-20, PageID 7414; R. 101-2,

PageID 5163–68. The court would not approve brain scans because she did not meet

the pleading requirements of showing a particularized need. R. 130-20, PageID 7414.

She could not show a particularized need because she had not conducted a mitigation

investigation. R. 130-20, PageID 7420. Counsel’s failure to represent Mr. Hugueley

in accordance with prevailing professional norms left the state court without the

information necessary to accurately assess his competency to waive his postconviction proceedings. R. 130-20, PageID 7409–12; 7415; 7420; Pet. for cert. at 18.

Finally, the Warden concedes there is a circuit split regarding the application

of Martinez to instances in which post-conviction counsel pled but ineffectively failed

to develop and support a Sixth Amendment claim. The Warden, however, attempts

to distinguish Mr. Hugueley’s case from those cited in the Petition, claiming that his

case is distinct from either side of the split. BIO at 16. In essence, the Warden argues

that Martinez offers no avenue for relief in cases in which the procedural default

resulted from the petitioner’s withdrawal of post-conviction proceedings. Id. The

distinction drawn by the Warden is unavailing.

9

The Warden asks this Court to treat the procedural default of Mr. Hugueley’s

claim as different from other defaults encompassed by Martinez. Martinez itself

never restricted its application to certain procedural defaults and rather instructed

that a federal court may excuse any default of a claim when post-conviction counsel

was “ineffective under the standards of Strickland v. Washington.” Martinez, 566

U.S. at 14. For the purposes of that holding, it is irrelevant whether the default was

the deficient failure to follow a procedural rule, the deficient failure to plead a claim,

or the deficient failure to prove a claim. All those failures by post-conviction counsel

may constitute ineffective representation sufficient to excuse the default pursuant to

Martinez. Id. The relevant inquiry is therefore whether, but for counsel’s errors, the

claim would have been properly preserved and presented to the state courts for

review. Coleman v. Thompson, 501 U.S. 722, 750 (1991) (defining cause as

“attributable thereto”).

Thus, the Warden’s reliance on the fact that Mr. Hugueley’s putative “waiver”

served as the post-conviction court’s reason for dismissing the state petition fails to

address the clear Martinez inquiry. Properly framed the relevant inquiry is whether,

but for post-conviction counsel’s deficient representation, would Mr. Hugueley have

been found competent to withdraw his petition and thereby have defaulted his

ineffective assistance of trial counsel claim. Every medical and mental health

professional furnished his magnetic resonance imaging results has found him

incompetent. Counsel’s failure to secure experts, obtain the relevant brain scans, or

even gather basic mental health and social history records constitutes deficient

10

performance. In short, the putative “waiver” only serves as an independent source of

default if we accept the Warden’s faulty premise that this “waiver” was knowingly

entered by a competent individual, capable of intelligently waiving his rights.

III.

THE WARDEN’S ARGUMENT THAT HUGUELEY IS FACT-BOUND

AND SOLELY ABOUT PETITIONER’S WAIVER IS BELIED BY THE

WARDEN’S SUBSEQUENT USE OF HUGUELEY TO ARGUE THAT

MARTINEZ IS LIMITED.

In its Brief in Opposition, the Warden casts the Sixth Circuit’s decision in

Hugueley as bounded and limited by the fact that Mr. Hugueley “waived” postconviction proceedings. BIO at 17. According to the Warden, this waiver distinguishes

Hugueley from all other Martinez cases—putting Hugueley “beyond the reach of

Martinez” and rendering Hugueley an inappropriate vehicle for the resolution of the

circuit split. BIO at 15. In other cases, however, the Warden expressly argues the

opposite, claiming that Hugueley fundamentally limits the application of Martinez.

For example, in Ivy v. Carpenter, 2:13-cv-02374 (W.D. Tenn. July 29, 2020) (R. 128

Reply), the Warden argued that Hugueley stands for the proposition that Martinez

does not provide an avenue for relief for properly raised claims that were

“underdeveloped” by post-conviction counsel. Id. at PageID 14760. Similarly, in

Sample v. Colson, 2:11-cv-02362 (W.D. Tenn. Dec. 11, 2020) (R. 155 Reply) the

Warden repeatedly cited Hugueley for the proposition that cursory and

underdeveloped claims presented in post-conviction could not be excused pursuant to

Martinez. Id. at PageID 14153–55. That the Warden has cited Hugueley, repeatedly,

as authority that Martinez is limited demonstrates that Hugueley is an ideal vehicle

11

for the resolution of the split both parties acknowledge exists in the Circuits’

application of Martinez.

IV.

MR. HUGUELEY’S CLAIMS ARE SUBSTANTIAL UNDER MARTINEZ;

COUNSEL WAS NOT ENTITLED TO RELY ON HIS EXPERTS’

UNINFORMED OPINIONS, BECAUSE TRIAL COUNSEL DID NOT

INVESTIGATE COMPETENCY.

Choosing not to address Mr. Hugueley’s second question presented, the

Warden, instead, poses an alternate question: “Whether, even if Martinez v. Ryan,

566 U.S. 1 (2012), applied here, it would excuse Hugueley’s default since he failed to

demonstrate that his ineffective-assistance-of-trial-counsel claim was substantial.”4

BIO at i. Unsurprisingly, the Warden answers his own, substitute, question in the

negative. BIO at 18 (arguing “certiorari is not warranted because Hugueley has failed

to show that his claims of ineffective assistance of trial counsel are substantial”).

Though the questions presented by Mr. Hugueley’s petition do not implicate the

substantiality of Mr. Hugueley’s ineffective assistance of counsel claim, the Warden’s

analysis is belied by any reading of the record.

Contrary to the Warden’s contention that “the record shows that trial counsel

recognized competency as a potential issue and thoroughly investigated it” (BIO at

19), the record demonstrates exactly the opposite. Trial counsel admits that he “never

considered the possibility that Mr. Hugueley’s behavior was not something he could

4 Mr. Hugueley’s second question presented asks this Court to address the Sixth

Circuit’s determination that any Sixth Amendment claim raised in state court

necessarily encompasses all ineffective assistance of counsel claims for the purposes

of the exhaustion doctrine.

12

control or that his decisions might be the result of brain impairment.” R. 130-8,

PageID 7292–93. Trial counsel admits that he also “did not do any legal research

concerning competency.” Id. Since trial counsel “never considered the possibility” Mr.

Hugueley was incompetent, it is unclear how the Warden can argue in good faith that

the record shows that he recognized the issue, much less that he “thoroughly

investigated it.” BIO at 19.

Further, the record belies Warden’s contention that trial counsel investigated

Mr. Hugueley’s competency. The Warden conveniently omits that, while trial counsel

did collect substantial mitigating evidence, counsel did not share that information

with the experts—indeed, he did not even review it himself. R. 130-8, PageID 7291.

That trial counsel had an investigator collect records does not constitute an

“investigation” under prevailing professional norms when trial counsel did not so

much as read the documents collected much less direct further efforts in response to

those documents. Trial counsel has sworn that he concluded that Mr. Hugueley was

competent merely because “he knew what was going on.” R. 130-8, PageID 7293.

Indeed, trial counsel could not have based that assessment on anything other than

his limited and uniformed interactions because he did not investigate Mr. Hugueley’s

mental health history and did not read the paltry records that were collected. See,

e.g., R. 41-7, PageID 900–1238 (unread report and records); R. 128-1, PageID 6036–

41; Pet. for cert. at 21 n.15.

The Warden also argues that Mr. Hugueley’s ineffective assistance of counsel

claims are not substantial because he was “deemed competent in his three prior

13

murder trials.” BIO at 20. The Warden builds on that contention, arguing that

because Mr. Hugueley had been thrice found to be competent, “trial counsel had no

reasonable basis for attempting to collaterally attack Hugueley’s prior convictions,

and his performance in this regard was not deficient.” BIO at 20. To the contrary, Mr.

Hugueley did not have three murder trials. Indeed, he has had only one trial–ever.

R. 42-1, PageID 246. Not only does the record show that Mr. Hugueley pleaded guilty

to his three prior offenses, it demonstrates that his counsel in a prior non-capital

proceeding questioned his competency to stand trial but acquiesced in Mr. Hugueley’s

desire to plead without an evaluation. R. 132-16, PageID 7651 (discussing 1992 plea

and counsel’s concern that a competency evaluation was needed). Moreover, the

record demonstrates that the need to collaterally challenge the prior offenses would

have been manifest had trial counsel considered the possibility that Mr. Hugueley

was not competent and conducted the most basic investigation including interviewing

predecessor counsel about counsel’s experience representing Mr. Hugueley. R. 13020, PageID 7406–07.

Finally, contrary to the Warden’s unsupported assertion, the opinions of the

experts presented in the lower courts definitively demonstrate that Mr. Hugueley

was incompetent at the time of his prior offenses. The Warden claims that, the expert

reports “do not specifically address Hugueley’s mental state at the time of his prior

convictions let alone conclude that he was incompetent to stand trial at the time of

14

those convictions.” BIO at 20.5 The Warden further asserts that Mr. Hugueley

“[f]ailed to show any evidence he was incompetent at the time of his prior convictions.”

Id. (emphasis added). The Warden’s conclusion defies a plain reading of the experts’

reports. Both of Mr. Hugueley’s experts in federal habeas concluded that he is

incompetent based on a brain condition that has existed since early childhood if not

birth and pointing out many, many instances of conduct attributable to this brain

defect from early childhood and continuing until the time of the evaluation. R. 127-4;

R. 127-5. Although both experts identified the etiology of Mr. Hugueley’s impairment

as lifelong and developmental in nature, the Warden seeks to cast their conclusions

as being inapplicable to Mr. Hugueley’s mental state at the time of his prior

convictions. Such a reading is plainly inaccurate given both experts’ clear conclusions

that Mr. Hugueley’s condition is lifelong, having originated in childhood if not in utero

and that it persists until present day. R. 127-4; R. 127-5.

V.

THE WARDEN DOES NOT CONTEST THAT CERTIORARI IS NEEDED

TO RESOLVE WHETHER THE SIXTH CIRCUIT APPROPRIATELY

JETTISONED WELL-ESTABLISHED EXHAUSTION PRINCIPLES.

It is notable that the Warden does not contest that there is a conflict between

the Sixth Circuit’s holding in Hugueley and the well-established exhaustion

principles that have long been part of this Court’s jurisprudence.

The exhaustion doctrine requires a state prisoner to “give the state courts an

opportunity to act on his claims before he presents those claims to a federal court in

The Warden’s assertion is particularly objectionable given that he opposed an

evidentiary hearing in the lower court that would have permit a full exploration of

the experts’ opinions. R. 89-1, PageID 4986–90; R. 137, PageID 7671.

5

15

a habeas petition.” O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). “A petitioner

satisfies the exhaustion doctrine when the claim has been “fairly present[ed],”, so the

state court has an “‘opportunity to pass upon and correct’ alleged violations” of

petitioner’s federal rights. Duncan v. Henry, 513 U.S. 364, 365 (1995) (quoting Picard

v. Connor, 404 U.S. 270, 275 (1971)).

The Sixth Circuit’s decision in Hugueley cavalierly ignores this deep-rooted

jurisprudence. See Hugueley, 964 F.3d at 501 n.4. The lower court’s holding—that

any allegation of ineffective assistance of counsel encompasses all Sixth Amendment

claims—is simply incompatible with established exhaustion principles. As this Court

has held “it is not enough to make a general appeal to a constitutional guarantee . . .

to present the ‘substance’ of such a claim to a state court.” Gray v. Netherland, 518

U.S. 152, 163 (1996); Mayle v. Felix, 545 U.S. 644, 655–56 (2005) (holding that claims

in habeas must be plead with particularity). The exhaustion requirement “would

serve no purpose if it could be satisfied by raising one claim in the state courts and

another in the federal courts.” Picard, 404 U.S. at 276. By holding that pleading any

claim of ineffective assistance of counsel claim is sufficient to subsume all such

claims, the Sixth Circuit defies this Court’s clear guidance that a cognizable claim

must articulate both the legal and factual basis for each claim. Taken to its logical

end, the Sixth Circuit’s hold results in a rule that pleading a general claim of

ineffective assistance of counsel in state court is sufficient to exhaust all Sixth

Amendment claims.

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In addition to defying the exhaustion doctrine, this approach also is expressly

contrary to Martinez and Trevino. The underpinning of the Martinez doctrine’s

equitable exception is that otherwise a defendant would be deprived “of any review

of [a substantive ineffective assistance of counsel] claim at all.” Trevino v. Thaler, 569

U.S. 413, 423 (2013). Under the Sixth Circuit’s interpretation, if state post-conviction

counsel pled non-meritorious claims in state post-conviction but omitted another

substantial claim, Martinez does not permit review of the omitted claim under the

reasoning that “theory of relief” of ineffective assistance of counsel was available and

subsumed such a claim.6 See Hugueley, 964 F.3d at 501 n.4.

In sum, the Sixth Circuit’s holding in Hugueley defies this Court’s established

jurisprudence and certiorari is warranted. Sup. Ct. R. 10(a).

VI.

CONCLUSION

This Court should grant this petition for a writ of certiorari.

The Sixth Circuit’s decision is utterly incompatible with Trevino as that case

involved facts where post-conviction counsel pled one theory of ineffective assistance

of counsel but omitted another substantial claim of ineffective assistance. Trevino,

569 U.S. at 418.

6

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Respectfully submitted,

AMY D. HARWELL

Assistant Chief, Capital Habeas Unit

*Counsel of Record

MARSHALL JENSEN

Research and Writing Attorney

FEDERAL PUBLIC DEFENDER

Middle District of Tennessee

Capital Habeas Unit

810 Broadway, Suite 200

Nashville, TN 37203

(615) 736-5047

Amy_Harwell@fd.org

Counsel for Petitioner

BY:

Counsel for Stephen Hugueley

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CERTIFICATE OF SERVICE

Pursuant to Supreme Court Rule 29.5(a), I certify a copy of the Petition

for a Writ of Certiorari was sent via First Class mail to the U.S. Supreme Court

and to counsel for the Respondent on March 8, 2021.

Amy D. Harwell

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