Amicus Curiae Brief — Crosley Alexander Green, Petitioner v. Ricky D. Dixon, Secretary, Florida Department of Corrections, et al.

No. 22-686

IN THE

Supreme Court of the United States

_______________________

CROSLEY ALEXANDER GREEN,

Petitioner,

v.

RICKY D. DIXON, SECRETARY,

FLORIDA DEPARTMENT OF CORRECTIONS, et al.

Respondents.

______________________

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT

______________________

BRIEF OF DUE PROCESS INSTITUTE AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

______________________

ADAM R. FOX

KEVIN KUMAR

SQUIRE PATTON

BOGGS (US) LLP

555 South Flower Street

Los Angeles, CA 90071

NICOLA COHEN

SQUIRE PATTON

BOGGS (US) LLP

1211 Avenue

of the Americas

New York, NY 10036

ROBERT DEVLING

SQUIRE PATTON

BOGGS (US) LLP

2550 M Street, NW

Washington, DC 20037

KEITH BRADLEY

Counsel of Record

SQUIRE PATTON

BOGGS (US) LLP

1801 California Street

Denver, CO 80202

(303) 830-1776

keith.bradley@squirepb.com

DARA D. MANN

SQUIRE PATTON

BOGGS (US) LLP

1201 W. Peachtree

Street, NW

Atlanta, GA 30309

Counsel for Amicus Curiae

February 23, 2023

i

TABLE OF CONTENTS

Page

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

INTEREST OF AMICUS CURIAE .........................1

SUMMARY OF ARGUMENT..................................1

ARGUMENT ............................................................4

I. Federalism and Comity Require The Reversal of

the Eleventh Circuit’s Opinion. ...........................4

A. Federal Habeas Review Historically Has

Operated as a Limited Check on a State’s

Authority to Detain an Individual. .............4

B. In Line With These Federalism and Comity

Guardrails, Federal Courts Should Defer to

State-Court Determinations of Claim

Exhaustion in Habeas Proceedings. ...........6

C. Despite These Well-Established Principles,

the Eleventh Circuit Failed to Defer to the

State-Court Finding that Mr. Green

Exhausted His Brady Claim. .................... 11

D. The Eleventh Circuit Further Erred in

Trying to Influence a State’s Rules and

Procedures. ................................................ 14

II. The Eleventh Circuit’s Holding Is Unworkable

Because It Requires Federal Courts To Devote

Significant Judicial Resources To Reviewing

State-Court Pleadings. ...................................... 17

CONCLUSION ....................................................... 20

ii

TABLE OF AUTHORITIES

Page(s)

Federal Cases

Adams v. Holland,

330 F.3d 398 (6th Cir. 2003) ............................... 9

Albertson v. Millard,

345 U.S. 242 (1953) (per curiam) ..................... 14

Ex parte Bollman,

8 U.S. (4 Cranch) 75 (1807) ............................ 2, 4

Brady v. Maryland,

373 U.S. 83 (1963) ..................... 1, 2, 3, 11, 12, 13

Brown v. Davenport,

142 S. Ct. 1510 (2022) ......................................... 5

Coleman v. Thompson,

501 U.S. 722 (1991) ....................................... 3, 15

Duckworth v. Serrano,

454 U.S. 1 (1981) (per curiam) ....................... 2, 7

Estelle v. Gamble,

429 U.S. 97 (1976) ............................................. 17

Ether v. Dixon,

No. 20-60241-CIV-ALTMAN, 2022 WL

1908918 (S.D. Fla. June 3, 2022) ............... 18, 19

Evans v. Chavis,

546 U.S. 189 (2006) ....................................... 9, 10

iii

Felker v. Turpin,

518 U.S. 651 (1996) ............................................. 5

Harrington v. Richter,

562 U.S. 86 (2011) ........................... 10, 13, 15, 17

Hortonville Joint School Dist. No. 1 v.

Hortonville Ed. Assn.,

426 U.S. 482 (1976) ......................................... 3, 7

Lambert v. Blackwell,

387 F.3d 210 (3d Cir. 2004) ................................ 9

McCleskey v. Zant,

499 U.S. 467 (1991) ............................................. 5

O’Sullivan v. Boerckel,

526 U.S. 838 (1999) ....................... 7, 8, 10, 12, 13

Picard v. Connor,

404 U.S. 270 (1971) ....................................... 6, 12

Randolph v. Kemna,

276 F.3d 401 (8th Cir. 2002) ............................... 9

Rose v. Lundy,

455 U.S. 509 (1982) ............................. 5, 7, 10, 18

Ex parte Royall,

117 U.S. 241 (1886) ............................................. 2

Shinn v. Ramirez,

142 S. Ct. 1718 (2022) ..................................... 6, 7

Shoop v. Twyford,

142 S. Ct. 2037 (2022) ......................................... 2

iv

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

No. 22-CV-14215-RAR, 2022 WL

16700291 (S.D. Fla. Nov. 3, 2022) .................... 18

Urquhart v. Brown,

205 U.S. 179 (1907) ........................................... 15

Wainwright v. Sykes,

433 U.S. 72 (1977) ............................................... 5

White v. Wheeler,

577 U.S. 73 (2015) ............................................... 2

Woodford v. Garceau,

538 U.S. 202 (2003) ............................................. 6

Wright v. Sec’y for Dep’t of Corr.,

278 F.3d 1245 (11th Cir. 2002) ......................... 15

Younger v. Harris,

401 U.S. 37 (1971) ............................................. 14

State Cases

In re Exhaustion of State Remedies in

Criminal and Post-Conviction Relief

Cases,

471 S.E.2d 454 (S.C. 1990) ................................. 8

State v. Green,

No. 05-1989-CF-00492-AXXX-XX (Fla.

18th Cir. Ct. Aug. 31, 2011) .......................... 3, 11

State v. Sandon,

777 P.2d 220 (Ariz. 1989) .................................... 9

v

Federal Statutes

28 U.S.C. § 2244(d) ................................................... 9

28 U.S.C. § 2254(b) ................................................... 6

28 U.S.C. § 2254(c) .................................................. 7

Act of Feb. 5, 1867, ch. 28, 14 Stat. 385 .................. 5

Act of Sept. 24, 1789, Chapter 20, § 14, 1

Stat. 82 ........................................................ 2, 5, 7

Antiterrorism and Effective Death Penalty

Act of 1996 ................................................. 2, 6, 14

Rules

Fla. R. Crim. P. § 3.850 .......................................... 16

Constitutional Provisions

U.S. Const., pmbl...................................................... 1

1

INTEREST OF AMICUS CURIAE1

Due Process Institute is a nonprofit, bipartisan

public interest organization striving to honor, preserve, and restore procedural fairness in the criminal

legal system through the guiding principle that due

process accomplishes the Constitution’s solemn promises to “establish justice” and “to secure the blessings

of liberty.” U.S. Const., pmbl. Due Process Institute

takes a strong interest in ensuring the existence of

meaningful postconviction remedies for constitutional

claims raised in criminal cases, because these postconviction remedies are an essential check on the process of prosecution and criminal litigation. When procedural errors occur during prosecution—deprivations of due process—it is crucial that the federal

courts be able to provide relief from those errors.

SUMMARY OF ARGUMENT

By ignoring a Florida court’s express finding that

Petitioner Crosley Green exhausted his Brady claim

under state law and “recommending” state-court

pleading requirements, the Eleventh Circuit improperly disregarded fundamental principles of federalism

and comity designed to limit the role of federal courts

in habeas proceedings for individuals in state custody.

Concerned with protecting the principles of federalism and comity to states, Congress and this Court

1 Pursuant to Supreme Court Rule 37.6, no counsel for a

party authored this brief in whole or in part, and no entity or

person other than amicus and its counsel made any monetary

contribution toward the preparation and submission of this brief.

Also, pursuant to Rule 37.2, counsel of record for all parties received notice of amicus curiae’s intent to file this brief at least 10

days before the due date.

2

have confined the adjudication of federal habeas cases

in several important ways.

This case implicates two separate, but related,

comity controls. First, habeas claims are channeled

first to state courts, so that they can resolve such

claims before federal courts undertake such adjudication. The exhaustion requirement affords state courts

the first opportunity to correct alleged violations of

federal law. Duckworth v. Serrano, 454 U.S. 1, 3

(1981) (per curiam). How States use that opportunity

and enable exhaustion of claims is within their purview. Second, a federal court considering a habeas petition must defer to state-court factfinding. “[W]here,

as here, the federal courts review a state-court ruling

under the constraints imposed by [the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”)],

the federal court must accord an additional and ‘independent, high standard’ of deference.” White v.

Wheeler, 577 U.S. 73, 78 (2015) (quoting Uttecht v.

Brown, 551 U.S. 1, 10 (2007)). Since the Judiciary Act

of 1789, Congress and the Court repeatedly have confirmed these and other limitations on federal habeas

review out of respect for federalism and comity. See,

e.g., Shoop v. Twyford, 142 S. Ct. 2037, 2043 (2022);

Ex parte Royall, 117 U.S. 241 (1886); Ex parte Bollman, 8 U.S. (4 Cranch) 75, 94 (1807).

For over a decade, Mr. Green pursued postconviction relief in the state courts, including in the Florida

Supreme Court, under Brady v. Maryland, 373 U.S.

83 (1963). He argued that the State unlawfully failed

to disclose exculpatory evidence—namely, notes

showing that before trial, two responding officers

shared with the prosecutor their belief that Mr. Green

was innocent, and the victim’s ex-girlfriend was the

3

actual perpetrator of the crime. A state court subsequently found that Mr. Green’s Brady claim was “addressed in his first post-conviction motion[,] denied by

this Court on November 22, 2005, and affirmed on appeal to the Supreme Court of Florida,” thereby exhausting the claim in state court. Order Den. Def.’s

Mot. for Post-Conviction Relief, State v. Green, No. 051989-CF-00492-AXXX-XX, at 13 (Fla. 18th Cir. Ct.

Aug. 31, 2011).

On review, the Eleventh Circuit defied decades of

well-settled precedent when it failed to defer to the

state court’s finding of exhaustion. Instead, the federal court of appeals conducted a searching, de novo

review of the record and relitigated the exhaustion issue in a 100-plus page opinion concluding in a “recommendation” to Florida to amend its rules and procedures for postconviction pleadings, presumably to

make it easier for federal courts to relitigate claim exhaustion.

However, this Court’s guidance in this area is

clear: Exhaustion is a question of state law and procedure, the interpretation of which federal courts “are

bound to accept.” Hortonville Joint School Dist. No. 1

v. Hortonville Ed. Assn., 426 U.S. 482, 488 (1976).

And federal courts must avoid undue interference in

the management of state courts. See Coleman v.

Thompson, 501 U.S. 722, 750 (1991) (“[S]ignificant

harm to the States . . . results from the failure of federal courts to respect [state procedural rules].”).

In short, the Eleventh Circuit’s opinion disregards

basic principles of federalism and comity, establishes

an unworkable, burdensome obligation on federal

courts to review all state and federal court pleadings

4

and opinions to relitigate a question of state law, and

therefore should not stand.

ARGUMENT

I.

FEDERALISM AND COMITY REQUIRE THE REVERSAL OF THE ELEVENTH CIRCUIT’S OPINION.

Historically, federalism and comity govern federal

courts’ use of the writ of habeas corpus. These concerns are paramount when federal courts review

state-court decisions on matters of state law, such as

whether a claim has been exhausted. The Eleventh

Circuit failed to give due respect to the determination

of the Florida Circuit Court of the Eighteenth Judicial

Circuit’s (“Circuit Court”) that Mr. Green sufficiently

presented his claim to the Florida Supreme Court.

The new model for habeas proceedings in the Eleventh

Circuit is the opposite of comity. It tasks federal

courts with relitigating procedural decisions made

over years of state proceedings, and forces state litigants to conform their state-court litigating strategies

to the demands of the federal courts that might review

a case.

A. Federal Habeas Review Historically Has

Operated as a Limited Check on a State’s

Authority to Detain an Individual.

American courts have always recognized that the

writ of habeas corpus operates as a limited judicial

check on an executive’s ability to detain individuals.

Departing from the English courts’ tradition, early

American federal courts uniquely limited their use of

the writ to the authority provided by statute. Ex parte

Bollman, 8 U.S. (4 Cranch) 75, 94 (1807) (“the power

to award the writ by any of the courts of the United

5

States, must be given by written law”). Because the

Judiciary Act of 1789 only permitted federal courts “to

grant the writ of habeas corpus when prisoners were

‘in custody, under or by colour of the authority of the

United States, or [were] committed for trial before

some court of the same,’” the writ generally applied

only to individuals in federal custody. 2 Felker v. Turpin, 518 U.S. 651, 659 (1996) (quoting Act of Sept. 24,

1789, ch. 20, § 14, 1 Stat. 82).

In 1867, Congress expanded the writ of habeas to

persons in state custody. Wainwright v. Sykes, 433

U.S. 72, 78 (1977). Under the Act of 1867, habeas became available “in all cases where any person may be

restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States.”

Act of Feb. 5, 1867, ch. 28, 14 Stat. 385.

Despite the expansion of habeas following the

Civil War, Congress and this Court have taken steps

to ensure that state-court determinations remain entitled to significant deference. E.g., Wainwright, 433

U.S. at 87 (holding federal courts will not overrule a

state-court conviction on claims that were procedurally defaulted); Rose v. Lundy, 455 U.S. 509 (1982)

(holding federal courts will not overrule a state-court

conviction on claims that were unexhausted); McCleskey v. Zant, 499 U.S. 467, 489 (1991) (limiting habeas’

2 Although the writ of habeas was predominantly a mecha-

nism for “federal courts to issue habeas writs to federal custodians,” Brown v. Davenport, 142 S. Ct. 1510, 1520 (2022), early federal courts could grant the writ for state detainees under certain

limited circumstances, Felker v. Turpin, 518 U.S. 651, 659–60

(1996).

6

availability for successive petitions under the abuseof-the-writ doctrine).

More recently, Congress has reaffirmed that federal courts must be restrained in their decision-making in habeas cases. A key goal of AEDPA was “to further the principles of comity, finality, and federalism[.]” Woodford v. Garceau, 538 U.S. 202, 206 (2003)

(internal citation omitted).

Stated simply, preservation of respect for federalism and comity for state courts has been a cornerstone

of the American writ of habeas corpus throughout its

history. Two centuries of precedent demand that federal courts “respect our system of dual sovereignty” as

zealously today as in 1789. Shinn v. Ramirez, 142 S.

Ct. 1718, 1730 (2022) (internal citation omitted).

B. In Line With These Federalism and Comity Guardrails, Federal Courts Should

Defer to State-Court Determinations of

Claim Exhaustion in Habeas Proceedings.

Federal courts generally require state prisoners to

exhaust their state-court remedies before seeking federal relief. Picard v. Connor, 404 U.S. 270, 275–76

(1971) (“It has been settled since Ex parte Royall, 117

U.S. 241 [] (1886), that a state prisoner must normally

exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus.”). Congress agreed and codified the exhaustion

requirement. 28 U.S.C. § 2254(b) (“An application for

a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall

not be granted unless it appears that the applicant

has exhausted the remedies available in the courts of

7

the State.”). Under AEDPA, a claim is not yet exhausted if the prisoner still “has the right under the

law of the State to raise, by any available procedure,

the question presented.” Id. at § 2254(c).

As with most doctrines underlying federal habeas

processes, the exhaustion requirement is rooted in

federalism and comity. The requirement that state

prisoners first exhaust their federal claims in state

court “is principally designed to protect the state

courts’ role in the enforcement of federal law and prevent disruption of state judicial proceedings.” Rose,

455 U.S. at 518. Exhaustion gives state courts “an initial opportunity to pass upon and correct alleged violations of prisoners’ federal rights,” before federal

courts scrutinize the underlying state criminal proceedings. Duckworth v. Serrano, 454 U.S. 1, 3 (1981)

(per curiam). In other words, the exhaustion requirement is a procedure that furthers the interests of federalism by “minimiz[ing] friction between our federal

and state systems of justice[.]” Id.

A state court’s determination regarding claim exhaustion is entitled to deference from federal courts in

habeas proceedings because the determination “turns

on an inquiry into what procedures are ‘available’ under state law.” O’Sullivan v. Boerckel, 526 U.S. 838,

847 (1999) (emphasis added); see Shinn, 142 S. Ct. at

1732 (explaining that to properly exhaust a claim, a

state prisoner must raise his “federal claim before the

state courts in accordance with state procedures”).

Federal courts are “bound to accept the interpretation

of [state] law,” as determined by that state’s courts.

Hortonville Joint School Dist. No. 1 v. Hortonville Ed.

Assn., 426 U.S. 482, 488. Thus, when a state court

determines that a party properly presented and fully

8

exhausted a claim in its courts, federal courts must

accept that interpretation of the state’s procedures.

This Court has already indicated that federal

courts must accept an authoritative state court’s determination of what qualifies as exhaustion under its

state law—even when that determination takes a different form from what would be familiar in federal

courts. In O’Sullivan, the petitioner argued that requiring state prisoners to exhaust their federal claims

in state court before federal habeas relief could be obtained would overwhelm state appellate courts with

prisoners seeking to exhaust their claims. The Court

responded that States can establish their own procedures to reduce or mitigate that burden; and it cited,

as an example, In re Exhaustion of State Remedies in

Criminal and Post-Conviction Relief Cases, 471

S.E.2d 454 (S.C. 1990).

In that case, the Supreme Court of South Carolina

issued a blanket ruling following legislative changes

to the state’s postconviction procedures. The court

held that prisoners were “deemed to have exhausted

all available state remedies respecting a claim of error” regardless of whether they petitioned the state

supreme court for review. Id. In essence, the Supreme Court of South Carolina redefined the state

procedures for exhaustion, to state that prisoners are

deemed to have exhausted claims even without pursuing all available remedies. This Court then, in

O’Sullivan, regarded the South Carolina approach as

a permissible way for a State to define its own mechanisms for exhaustion.

South Carolina is not the only state supreme

court to judicially declare that prisoners’ claims are

exhausted. State courts across the country have

9

amended their procedures to redefine what constitutes exhaustion of a claim. See, e.g., State v. Sandon,

777 P.2d 220, 221 (Ariz. 1989). Besides the Eleventh

Circuit in this case, the federal courts of appeals have

widely accepted these state-court interpretations of

exhaustion of state-court remedies. See, e.g., Lambert

v. Blackwell, 387 F.3d 210, 233 (3d Cir. 2004)

(“hold[ing] that [Pennsylvania Supreme Court] Order

No. 218 renders review from the Pennsylvania Supreme Court ‘unavailable’ for purposes of exhausting

state court remedies”); Adams v. Holland, 330 F.3d

398, 402 (6th Cir. 2003) (holding claim exhausted

based on a Tennessee Supreme Court rule that declared “the litigant shall be deemed to have exhausted

all available state remedies” after intermediate appellate court review); Randolph v. Kemna, 276 F.3d 401,

404 (8th Cir. 2002) (holding claim exhausted based on

a Missouri Supreme Court rule that declared discretionary review “’is not part of the standard review process for purposes of federal habeas corpus review’”)

(internal citation omitted).

In other contexts, this Court has held that federal

courts’ decision-making on habeas petitions depends

upon state courts’ interpretation of state law. For example, in Evans v. Chavis, 546 U.S. 189 (2006), the

Court considered whether a state-court appeal could

toll the one-year statute of limitations of 28 U.S.C. §

2244(d) when the state statute merely said the state

appeal had to be filed within a “reasonable time.” A

unanimous Court held that what constitutes a “reasonable time” should be decided based on state law.

Id. at 199–200. Thus, this Court deferred to a state

court’s determination of a state-law issue, which

10

affected the federal court’s decision on the habeas petition.3

At a minimum, a state court’s determination of a

question of state law is entitled to comity, which the

Eleventh Circuit did not provide. Comity “dictates

that when a prisoner alleges that his continued confinement for a state court conviction violates federal

law, the state courts should have the first opportunity

to review this claim and provide any necessary relief.”

O’Sullivan, 526 U.S. at 842–44. “[T]he doctrine of

comity [] ‘teaches that one court should defer action on

causes properly within its jurisdiction until the courts

of another sovereignty with concurrent powers, and

already cognizant of the litigation, have had an opportunity to pass upon the matter.’” Rose, 455 U.S. at 518

(quoting Darr v. Burford, 339 U.S. 200, 204 (1950)). If

a state court is satisfied that a federal claim has been

presented and that it had an opportunity to address

the prisoner’s claims, as occurred in this case, federal

courts fail to give the requisite respect to state courts

by insisting the prisoner engage in more or different

state-court litigation.

3 In addition to the situation presented in Evans, the Court

also has held that state-law determinations of procedural default

control federal courts’ decisions to consider habeas petitions.

Harrington v. Richter, 562 U.S. 86, 99–100, 103 (2011) (“If the

state court rejects the claim on procedural grounds, the claim is

barred in federal court unless” an exception applies). The same

deference should apply if the state court holds the claim is not

barred on state procedural grounds.

11

C. Despite These Well-Established Principles, the Eleventh Circuit Failed to Defer

to the State-Court Finding that Mr.

Green Exhausted His Brady Claim.

The Eleventh Circuit accorded zero deference to

the state court’s finding that Mr. Green exhausted his

Brady claim under state law.

The record contains a definitive statement by the

state court on this issue. Reviewing Mr. Green’s successive state postconviction motion in 2011, the Circuit Court stated the following:

The Defendant next alleges that the State

never disclosed to the Defendant or his defense counsel that then-Deputy Rixey and

Sergeant Clarke observed facts indicating

that Hallock shot Chip Flynn. This issue was

addressed in his first post-conviction motion[,]

denied by this Court on November 22, 2005,

and affirmed on appeal to the Supreme Court

of Florida. (See Exhibit “7”). Green v. State,

975 So. 2d 1090 (Fla. 2008).

Order Den. Def.’s Mot. for Post-Conviction Relief,

State v. Green, No. 05-1989-CF-00492-AXXX-XX, at

13 (Fla. 18th Cir. Ct. Aug. 31, 2011) (emphasis added).

Because this Brady claim had been previously litigated through the entirety of Florida’s appellate system, including before the Florida Supreme Court, the

Circuit Court explicitly held the issue “barred as successive.” Id. After the Circuit Court’s statement on

this issue, no court questioned whether this Brady

claim was exhausted until the case reached the Eleventh Circuit in 2018. App. 156a (Jordan, J., concurring in part and dissenting in part) (“In 2011, then,

12

both the state and state post-conviction court were

satisfied that Mr. Green had exhausted his Brady

claim[.]”).

Nevertheless, instead of deferring to this explicit

state-court conclusion that the Brady claim was exhausted, the Eleventh Circuit engaged—for almost 70

pages—in a comprehensive survey of the state and

federal filings and opinions to adjudicate the question

afresh. Concerns over the form of raising the claim,

specifically the numbering and lettering of headers in

prior pleadings, preoccupied the majority. See, e.g.,

id. (Jordan, J., concurring in part and dissenting in

part) (the majority “focused (fixated might be a better

word) on the numbering of the claims in Florida postconviction proceedings instead of analyzing the substance of the arguments that Mr. Green presented”).

This overwhelming focus on the form, over substance,

of Mr. Green’s pleadings violated basic principles of

the exhaustion doctrine. See Picard, 404 U.S. at 278

(“We simply hold that the substance of a federal habeas corpus claim must first be presented to the state

courts.”); App. 156a (Jordan, J., concurring in part

and dissenting in part) (the majority has “not [used]

the correct approach, for the ‘policy of federal state

comity,’ ‘underlying the exhaustion doctrine does not

compel the triumph of form over substance’” (quoting

Henry v. Dep’t of Corr., 197 F.3d 1361, 1367 (11th Cir.

1999))). Moreover, it should, under O’Sullivan, remain the prerogative of the state courts not to focus

on the arrangement of headings in state-court briefs.

Florida law and Florida procedures determined

whether the claim was presented to the Florida

courts, and it flouts the basic principles of comity for

a federal court to decide that, contrary to the state

13

courts’ views, particular features of a prisoner’s brief

are dispositive of that point.

In the course of this lengthy analysis, on page 95

of the opinion, buried in a footnote, the Eleventh Circuit acknowledged, and rejected, the Circuit Court’s

finding of exhaustion. See App. 84a–85a n.91 (“The

quoted statement that Claim III-H-4 was ‘affirmed on

appeal to the Supreme Court of Florida’ finds no support in the Green II decision, and had to have come

from another source, one that we were unable to identify.”). The majority even had the audacity to suggest

“[t]he Circuit Court could not have read the opinion”

of the Florida Supreme Court. Id. This, too, was contrary to O’Sullivan. There, the Court indicated a

State can choose to deem a claim exhausted even

though the prisoner did not carry it all the way

through a filing at the state’s highest court; here, the

Eleventh Circuit has held a state court cannot deem a

claim exhausted if a federal court is not satisfied with

the prisoner’s state filings.

Furthermore, this Court has instructed federal

courts to presume that a state court has adjudicated a

claim on the merits even when there is no reasoned

decision. Harrington, 562 U.S. at 98–99. The Eleventh Circuit’s analysis here contravenes that precedent, too, by assuming—in the face of directly contradictory language—that the Florida Supreme Court

could not have addressed a given claim.

This analysis blatantly disregarded the comity

owed to state courts in federal habeas proceedings.

The Circuit Court, which frequently and with familiarity applies Florida appellate and postconviction procedures, is perfectly suited to determine whether Mr.

Green presented and exhausted his Brady claim in

14

the Florida Supreme Court. See Albertson v. Millard,

345 U.S. 242, 244 (1953) (per curiam) (“Interpretation

of state legislation is primarily the function of state

authorities, judicial and administrative.”).

D. The Eleventh Circuit Further Erred in

Trying to Influence a State’s Rules and

Procedures.

Wholly ignoring the guardrails of federalism and

comity, the Eleventh Circuit attempted to intervene

in how state petitioners plead their claims in state

court. “While this Court cannot do more than recommend to the state courts that they consider requiring

more straightforward post-conviction pleading,” the

Eleventh Circuit wrote, “state prisoners seeking postconviction relief in federal court may consider themselves on notice that this Court will vigorously enforce

both AEDPA and Rules 8 and 11.” App. 144a.

As an initial matter, the Eleventh Circuit’s recommendation that a State amend its procedural rules violates basic principles of federalism and comity. This

Court has long instructed against this type of federal

intervention into state judicial processes. “Since the

beginning of this country’s history,” it explained,

“Congress has, subject to few exceptions, manifested

a desire to permit state courts to try state cases free

from interference by federal courts.” Younger v. Harris, 401 U.S. 37, 43 (1971). Therefore, even while “vindicat[ing] and protect[ing] federal rights and federal

interests,” federal courts must avoid “unduly interfer[ing] with the legitimate activities of the States.”

Id. at 44.

The Court also has warned against federal interference into state matters specifically in the

15

postconviction context. In Coleman v. Thompson, for

instance, a case “concern[ing] the respect that federal

courts owe the States and the States’ procedural

rules,” the Court explained there is “significant harm

to the States that results from the failure of federal

courts to respect [state procedural rules].” 501 U.S.

722, 726, 750 (1991). The Court thus “eliminate[d] inconsistency between the respect federal courts show

for state procedural rules and the respect they show

for their own,” and definitively concluded that “[n]o

less respect should be given to state rules of procedure.” Id. at 751; see also Urquhart v. Brown, 205 U.S.

179, 181 (1907) (“[I]n view of the relations existing,

under our system of government, between the judicial

tribunals of the Union and of the several states, a Federal court or Federal judge will not ordinarily interfere by habeas corpus with the regular course of procedure under state authority, but will leave the applicant for the writ of habeas corpus to exhaust the remedies afforded by the state for determining whether he

is illegally restrained in his liberty.”).

Two decades later, in Harrington v. Richter, the

Court, again, warned federal courts against forcing

state courts to modify their practices, in part because

it could “undercut state practices” or risk depleting

state “resources.” 562 U.S. at 99 (“Opinion-writing

practices in state courts are influenced by considerations other than avoiding scrutiny by collateral attack

in federal court.”); Wright v. Sec’y for Dep’t of Corr.,

278 F.3d 1245, 1255 (11th Cir. 2002) (“Telling state

courts when and how to write opinions to accompany

their decisions is no way to promote comity.”). If federal courts cannot dictate how state courts write their

opinions in postconviction proceedings, see Harrington, 562 U.S. at 99, federal courts also should not

16

dictate how state petitioners plead their claims in

state postconviction proceedings.

Moreover, despite being a “recommend[ation],”

the Eleventh Circuit’s commentary nonetheless has

immediate and problematic consequences for state petitioners within its region. App. 143a. Like other

states, Florida has established its own rules and procedures for how to adjudicate claims on direct appeal

and in postconviction proceedings. See, e.g., Fla. R.

Crim. P. § 3.850. This includes rules regarding the

contents of a postconviction motion, id. at § 3.850(c),

and the form of the motion, id. at § 3.850(d). Nothing

in its rules dictates how “straightforward[ly]” a petitioner must plead her claims. App. 143a.

Now, however, a state petitioner has little choice

but to be mindful of the Eleventh Circuit’s “straightforward” requirement when pleading a claim in state

postconviction proceedings. Even if the state courts

soundly adjudicate a claim, the Eleventh Circuit may

deem the state pleadings too “complex and confusing,”

throw the case out of federal court, and thus deny a

petitioner the right to federal review. App. 3a. Indeed, this is what exactly happened to Mr. Green. Under this new standard, petitioners like Mr. Green are

in a bind: They are barred from pursuing their claims

in state court because their claims are exhausted in

the view of state courts, while they simultaneously are

barred from seeking relief in federal court because

their claims are not sufficiently exhausted in the view

of federal courts. The Eleventh Circuit cannot be

17

permitted to supplement, or effectively amend, a

state’s rules and procedures in this way.4

II. THE ELEVENTH CIRCUIT’S HOLDING IS UNWORKABLE BECAUSE IT REQUIRES FEDERAL COURTS

TO DEVOTE SIGNIFICANT JUDICIAL RESOURCES

TO REVIEWING STATE-COURT PLEADINGS.

The Eleventh Circuit has created an unworkable

and burdensome precedent for district courts. District

courts within that circuit can no longer rely on a state

court’s pronouncement that a claim has been exhausted but must now engage in a probing, de novo

review of every pleading filed in state and federal

court to resolve the threshold exhaustion question. As

a result, those courts will expend even more resources

on habeas cases than what is already spent today.5

See Harrington, 562 U.S. at 91 (reviewing a habeas

petition is “a commitment that entails substantial judicial resources”). This result is directly contrary to

the purpose of the exhaustion doctrine, which seeks to

The Eleventh Circuit’s “straightforwardness” rule will

have particularly harmful consequences on pro se petitioners.

See Estelle v. Gamble, 429 U.S. 97, 104–06 (1976) (“[A] pro se

complaint, ‘however inartfully pleaded,’ must be held to ‘less

stringent standards than formal pleadings drafted by lawyers.’”)

(internal citation omitted).

4

5 In 2021, state prisoners filed nearly 13,000 habeas petitions in U.S. District Courts. U.S. District Courts – Civil Cases

Commenced, by Basis of Jurisdiction and Nature of Suit, Admin.

Offs. of U.S. Courts (Mar. 31, 2021), available at

https://www.uscourts.gov/statistics/table/c-2/federal-judicialcaseload-statistics/2021/03/31. Surely, district courts cannot

conduct in every case the type of searching review that the Eleventh Circuit now requires.

18

decrease “the burden on the federal courts.” Rose, 455

U.S. at 520.

The Eleventh Circuit’s decision illustrates the

burden imposed on lower courts that ignore principles

of federalism and comity. The majority opinion is

more than 150 pages. See App. 145a (Jordan, J., concurring in part and dissenting in part) (describing the

majority opinion as “exhaustive [in] nature,” “too

long,” and “say[ing] too much about too many things

unnecessarily”). The majority devotes almost 70 of

those pages to describing the claims that were litigated in numerous prior filings and opinions in both

state and federal court dating back to 2001 when Mr.

Green filed his first amended state postconviction petition. See App. 24a–90a. Furthermore, to conduct

this analysis at all, the majority had to navigate

through a voluminous record, consisting of more than

12 volumes and 8,000 pages. This is not the proper allocation of a federal court’s resources in habeas proceedings.

Indeed, one district court has already described

Green’s novel exhaustion analysis as an “unnecessarily cumbersome step.” Sinclair v. Sec’y, Fla. Dep’t

of Corr., No. 22-CV-14215-RAR, 2022 WL 16700291,

at *7 (S.D. Fla. Nov. 3, 2022). Tellingly, that court

deemed Green’s requirement of “individually analyzing how each subclaim changed (or not) over time” so

burdensome that it decided it would be simpler for it

to review the merits of the claims de novo. Id.

Similarly, Ether v. Dixon, No. 20-60241-CIV-ALTMAN, 2022 WL 1908918 (S.D. Fla. June 3, 2022), reflects the extensive work that Green calls for. Citing

Green, Ether conducted a detailed analysis of whether

the petitioner’s briefing of three claims across

19

multiple pleadings in state and federal court were

“substantially the same.” Id. at *6. The court then

devoted several pages to documenting the ways in

which the claims had been pleaded differently. Id.

(finding the argument on which one claim rested had

changed “a bit” across pleadings). Nonetheless, even

after engaging in this lengthy analysis, the court concluded that, while at least one of the claims was

“something of a close call,” it gave the plaintiff the

“benefit of the doubt” and considered the claims exhausted. Id. at *7. Ether thus highlights not only the

resource drain, but also the confusing nature of the

Eleventh Circuit’s novel approach to exhaustion.

Habeas petitions already impose a heavy burden

on the federal courts. Requiring district courts to engage in an exhaustive review of every pleading and

opinion ever filed in state and federal court to resolve

a threshold exhaustion issue imposes an unnecessary

and unworkable burden.

Federal habeas relief is an important mechanism

to remedy due-process violations, when they occur. To

ensure that this remedy remains available when it is

appropriate, the attention of the federal courts in habeas cases should not be distracted to relitigating procedural questions that the state courts have already

decided. If a prisoner’s habeas claim is meritorious

(under the governing standards), it should be granted;

and if it is not meritorious, it should be denied. For

the federal courts to engage in extensive rehashing of

state postconviction processes, even after the state

courts have determined the pertinent procedural

questions, is a significant new obstacle. And besides

being an unwarranted constraint on habeas relief, it

has the dangerous consequence of undermining the

20

state courts that federal habeas rules purport to respect.

CONCLUSION

The Eleventh Circuit’s decision disregarded foundational principles underlying federal habeas review:

deference and comity to state courts. And its unprecedented analysis, relitigating a procedural issue clearly

resolved by a state court, has produced an unworkable

and burdensome approach that will consume the limited resources of the lower courts. For the reasons set

forth above, the Due Process Institute urges the Court

to grant the petition for a writ of certiorari.

Respectfully submitted,

ADAM R. FOX

KEVIN KUMAR

SQUIRE PATTON

BOGGS (US) LLP

555 South Flower Street

Los Angeles, CA 90071

NICOLA COHEN

SQUIRE PATTON

BOGGS (US) LLP

1211 Avenue

of the Americas

New York, NY 10036

ROBERT DEVLING

SQUIRE PATTON

BOGGS (US) LLP

2550 M Street, NW

Washington, DC 20037

FEBRUARY 23, 2023

KEITH BRADLEY

Counsel of Record

SQUIRE PATTON

BOGGS (US) LLP

1801 California Street

Denver, CO 80202

(303) 830-1776

keith.bradley

@squirepb.com

DARA D. MANN

SQUIRE PATTON

BOGGS (US) LLP

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Street, NW

Atlanta, GA 30309