Respondents Brief — Travis Dwight Green, Petitioner v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division
Supreme Court briefApr 10, 2024
Ask Donna
What actually matters in this document.
Text
No. 23-6451
In the Supreme Court of the United States
_____________
TRAVIS DWIGHT GREEN, PETITIONER
v.
BOBBY LUMPKIN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION
(CAPITAL CASE)
_____________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________
BRIEF IN OPPOSITION
_____________
KEN PAXTON
Attorney General of Texas
AARON L. NIELSON
Solicitor General
BRENT WEBSTER
First Assistant Attorney General
LANORA C. PETTIT
Principal Deputy Solicitor General
Counsel of Record
OFFICE OF THE
ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
[Tel.]: (512) 936-1700
[Fax]: (512) 474-2697
Lanora.Pettit@oag.texas.gov
BENJAMIN WALLACE MENDELSON
Assistant Solicitor General
Counsel for Respondent
QUESTIONS PRESENTED
Travis Green does not dispute that he raped, beat, and strangled Kristin Loesch in her
own home. Nor can he dispute that the state trial court held not one but two hearings under
Faretta v. California, 422 U.S. 806 (1975), to ensure that he was competent both to stand
trial for his heinous crime and to present his own defense. Rather, he maintains that he was
incompetent to stand trial and that his state-habeas counsel abandoned him within the
meaning of Maples v. Thomas, 565 U.S. 266 (2012). Again, Green does not dispute that
habeas counsel filed a timely petition raising numerous claims. Rather, he maintains that
counsel should have amended the petition to challenge whether Green was incompetent at
the time of trial. The questions presented are:
1. Is whether (and thus when) attorney abandonment occurs within the meaning of
Maples a legal conclusion subject to de novo review?
2. Is mental incompetency a factor external to the defense such that it may serve as
cause to overcome procedural default when the state-habeas petitioner is represented, and
any factual basis for the underlying claim is apparent from the face of the trial record?
i
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ................................................................................................... i
TABLE OF CONTENTS .......................................................................................................... ii
INTRODUCTION ....................................................................................................................... 1
STATEMENT ................................................................................................................................. 3
I. The Brutal Murder of Kristin Loesch ............................................................................ 3
II. Green’s Trial ....................................................................................................................... 5
III. State-Habeas Proceedings ............................................................................................... 7
IV. Federal-Habeas Proceedings ........................................................................................... 8
REASONS FOR DENYING THE PETITION ...................................................................... 10
I. The First Question Presented Does Not Warrant Review. ...................................... 10
A. There is no circuit split requiring this Court’s attention....................................... 10
1. No circuit split exists as to the proper standard of review for
procedural default and cause to overcome it. ......................................... 11
2. No circuit split exists as to whether the doctrine of equitable tolling
applies to cases like this. ........................................................................... 15
B. This case presents a poor vehicle to resolve Green’s nonexistent circuit split. . 17
1. If the time of abandonment is a factual finding, then the outcome of
Green’s case would not change under AEDPA...................................... 17
2. McLean did not abandon Green under any standard of review at
the relevant time….. .................................................................................. 18
C. The Fifth Circuit correctly concluded that whether (and by extension when)
an attorney has abandoned his client presents a question of law. ....................... 21
II. The Second Question Presented Does Not Warrant Review. ................................... 22
A. Any circuit split is shallow, longstanding, and not worthy of this Court’s
review. ........................................................................................................................... 23
B. This case presents a poor vehicle to determine whether mental incompetence
may excuse procedural default. ................................................................................. 27
C. At least with representation, mental incompetence does not establish cause
to overcome procedural default. ................................................................................ 29
CONCLUSION ........................................................................................................................... 31
TABLE OF AUTHORITIES
Page(s)
Cases:
Amadeo v. Zant,
486 U.S. 214 (1988) ............................................................................................................ 11, 21
ii
Anderson v. Attorney General of State of Kansas,
342 F.3d 1140 (10th Cir. 2003) ............................................................................................... 14
Anderson v. Kelly,
938 F.3d 949 (8th Cir. 2019) ................................................................................................... 13
Burroughs v. Makowski,
411 F.3d 665 (6th Cir. 2005) ................................................................................................... 12
Clark v. Perez,
510 F.3d 382 (2d. Cir. 2008) .................................................................................................... 14
Clark v. United States,
764 F.3d 653 (6th Cir. 2014) ................................................................................................... 24
Coleman v. Thompson,
501 U.S. 722 (1991) ................................................................................................ 10, 19, 29, 30
Cooter & Gell v. Hartmarx Corp.,
496 U.S. 384 (1990) .................................................................................................................. 16
Cvijetinovic v. Eberlin,
617 F.3d 833 (6th Cir. 2010) ................................................................................................... 12
Davila v. Davis,
582 U.S. 521 (2017) ............................................................................................................ 10, 29
Dretke v. Haley,
541 U.S. 386 (2004) ............................................................................................................ 10, 11
Ervin v. Delo,
194 F.3d 908 (8th Cir. 1999) ................................................................................................... 26
Fairchild v. Workman,
579 F.3d 1134 (10th Cir. 2009) ............................................................................................... 14
Farabee v. Johnson,
129 F. App’x 799 (4th Cir. 2005) ............................................................................................ 24
Faretta v. California,
422 U.S. 806 (1975) ....................................................................................................... i, 5, 7, 28
Ford v. Wainwright,
477 U.S. 399 (1986) .................................................................................................................. 10
Fortenberry v. Haley,
297 F.3d 1213 (11th Cir. 2002) ............................................................................................... 14
Gastineau v. Wright,
592 F.3d 747 (7th Cir. 2010) ................................................................................................... 15
Godinez v. Moran,
509 U.S. 389 (1993) .................................................................................................................... 7
Gonzales v. Davis,
924 F.3d 236 (5th Cir. 2019) ..................................................................................... 2, 9, 24, 29
Gordon v. Arkansas,
823 F.3d 1188 (8th Cir. 2016) ................................................................................................. 26
Green v. Lumpkin,
No. 20-70021 (5th Cir.) .......................................................................................................... 3, 8
iii
Green v. Thaler,
699 F.3d 404 (5th Cir. 2012) ................................................................................................... 10
Hall v. Mays,
7 F.4th 433 (6th Cir. 2021) ...................................................................................................... 12
Harris v. McAdory,
334 F.3d 665 (7th Cir. 2003) ................................................................................................... 24
Herb v. Pitcairn,
324 U.S. 117 (1945) .................................................................................................................. 29
Holt v. Bowersox,
191 F.3d 970 (8th Cir. 1999) ....................................................................................... 23, 25, 26
Hull v. Freeman,
991 F.2d 86 (3d Cir. 1993) ................................................................................................. 23, 24
Indiana v. Edwards,
554 U.S. 164 (2008) .................................................................................................................... 7
Johnson v. Wilson,
187 F. App’x 455 (6th Cir. 2006) ............................................................................................ 24
Juniper v. Davis,
74 F.4th 196 (4th Cir. 2023) .................................................................................................... 14
Koon v. United States,
518 U.S. 81 (1996) .................................................................................................................... 16
La Crosse v. Kernan,
244 F.3d 702 (9th Cir. 2001) ................................................................................................... 13
Lyons v. Luebbers,
403 F.3d 585 (8th Cir. 2005) ............................................................................................. 27, 28
Malone v. Vasquez,
138 F.3d 711 (8th Cir. 1998) ................................................................................................... 26
Maples v. Thomas,
565 U.S. 266 (2012) ......................................................................................................... passim
Martinez v. Ryan,
566 U.S. 1 (2012) ...................................................................................................................... 30
Mata v. Baker,
74 F.4th 480 (7th Cir. 2023) .................................................................................................... 13
Mayberry v. Dittmann,
904 F.3d 525 (7th Cir. 2018) ................................................................................................... 15
McKaskle v. Wiggins,
465 U.S. 168 (1984) .................................................................................................................... 7
Michigan v. Long,
463 U.S. 1032 (1983) ................................................................................................................ 29
Murray v. Carrier,
477 U.S. 478 (1986) ...................................................................................................... 10, 24, 30
Nassiri v. Mackie,
967 F.3d 544 (6th Cir. 2020) ................................................................................................... 16
iv
Nelson v. Shoop,
No. 19-3667, 2019 WL 7578382 (6th Cir. Dec. 23. 2019) ..................................................... 24
Panetti v. Quarterman,
551 U.S. 930 (2007) .................................................................................................................. 10
Perry v. Brown,
950 F.3d 410 (7th Cir. 2020) ................................................................................................... 15
Prible v. Lumpkin,
43 F.4th 501 (5th Cir. 2022) .................................................................................................... 11
Richardson v. Lemke,
745 F.3d 258 (7th Cir. 2014) ................................................................................................... 13
Robertson v. Simpson,
624 F.3d 781 (6th Cir. 2010) ................................................................................................... 16
Schawitsch v. Burt,
491 F.3d 798 (8th Cir. 2007) ................................................................................................... 13
Schneider v. McDaniel,
674 F.3d 1144 (9th Cir. 2012) ..................................................................................... 14, 25, 31
Shinn v. Ramirez,
596 U.S. 366 (2022) ............................................................................................................ 29, 31
Smith v. Newsome,
876 F.2d 1461 (11th Cir. 1989) ......................................................................................... 24, 30
Terry v. Jackson,
No. 16-4330, 2017 WL 5664915 (6th Cir. July 17, 2017) ..................................................... 24
Thomas v. Attorney General,
992 F.3d 1162 (11th Cir. 2021) ............................................................................................... 16
Trevino v. Thaler,
569 U.S. 413 (2013) .................................................................................................................. 30
United States v. McMutuary,
217 F.3d 477 (7th Cir. 2000) ................................................................................................... 16
Ward v. Hall,
592 F.3d 1144 (11th Cir. 2010) ............................................................................................... 14
Young v. Westbrooks,
702 F. App’x 255 (6th Cir. 2017) ............................................................................................ 20
Statutes:
28 U.S.C.
§ 2244(d)(1) ............................................................................................................................... 15
§ 2254 ................................................................................................................................... 13, 14
§ 2254(e)(1) ......................................................................................................................... 17, 18
Tex. Code Crim. Proc. art. 11.071 § 5(a)................................................................................. 9, 20
v
Other Authorities:
7 Wayne R. LaFave et al., Criminal Procedure § 28.4(d) (4th ed. Dec. 2023
update) ...................................................................................................................................... 30
Emily Shapiro, Man on death row for 1999 slaying now linked by DNA to
another woman's murder that same month, ABC News (Oct. 17, 2018),
https://tinyurl.com/2czdhewb. .................................................................................................. 7
Eric M. Freedman, Giarratano Is a Scarecrow: The Right to Counsel in
State Capital Postconviction Proceedings, 91 Cornell L. Rev. 1079
(2006) ......................................................................................................................................... 26
vi
In the Supreme Court of the United States
_____________
No. 23-6451
TRAVIS DWIGHT GREEN, PETITIONER
v.
BOBBY LUMPKIN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION
(CAPITAL CASE)
_____________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________
BRIEF IN OPPOSITION
___________
Travis Green does not dispute his guilt for the brutal sexual assault and murder of
nineteen-year-old Kristin Loesch whose autopsy revealed more than a liter of blood in her
abdomen, a silent witness to the pain and terror that were the final moments of the
effervescent teen’s all-too-short life. Green does not dispute that the question of his
competency was thoroughly explored twice before his trial or that he was provided counsel
to present a state-court habeas petition. Nevertheless, twenty-five years after he left
Kristin’s body to be found in her bedroom by her distraught boyfriend, Green insists that
he is entitled to a writ of habeas corpus because his state-habeas counsel abandoned him
within the meaning of Maples when counsel chose not to litigate Green’s competency—for
the third time.
1
The Fifth Circuit declined to reopen the issue of Green’s competency to stand trial a
quarter century after the fact because the claim has long since defaulted. The basis for
Green’s current claim of incompetence was apparent from the face of the trial record at the
time that state-habeas counsel declined to include the claim in his timely filed state-habeas
application. Any actions that Green insists represented abandonment did not occur until
years after the state-court deadline to amend the application had lapsed. Accordingly,
Green asserts not abandonment but negligence: In his view, his attorney should have relitigated his competency in his state-habeas petition. But under this Court’s wellestablished rule, negligence of state-court counsel is not grounds for federal-habeas relief.
Maples, 565 U.S. at 280-81. The Fifth Circuit further held that under its precedent, mental
incompetency during state-habeas proceedings is not cause to excuse a default because it is
not “external” to the defense. See Pet.App.9a n.2 (citing Gonzales v. Davis, 924 F.3d 236,
244 (5th Cir. 2019)).
Neither ground the petition identifies merits this Court’s attention. First, there is no
need for the Court to assess whether abandonment (and, by extension, when abandonment
occurs) represents a legal question or a factual one. Notwithstanding Green’s assertions to
the contrary, the courts of appeals uniformly review the existence of cause to excuse a statecourt default de novo and any underlying factual findings for clear error. Further, this case
presents a poor vehicle to resolve any confusion that might exist regarding the appropriate
standard of review because under any standard of review, Green’s state-habeas counsel did
not abandon him when he filed a state-habeas petition on Green’s behalf. He merely omitted
a claim that Green now insists would have been meritorious. Green’s theory of abandonment
would expand Maples beyond recognition and swallow the well-established rule, expressly
2
reaffirmed in Maples, that attorney negligence is not cause to overcome procedural default.
565 U.S. at 280-81.
Second, any potential friction among the courts of appeals regarding whether and when
incompetence during state-habeas proceedings can represent cause to overcome a statecourt default does not merit review at the present time. True, the Eighth Circuit has held
that mental incompetency may serve as cause in limited circumstances. But the circuits
agree that such circumstances do not exist when an incompetent habeas petitioner is
represented by counsel and that incompetence does not prevent counsel from raising a
defaulted claim. That is precisely what happened here: Green had state-habeas counsel who
had access to trial court records in which Green’s trial-time competency was actually
litigated. Under those circumstances, the failure to argue in state-habeas proceedings that
Green was tried while incompetent was attributable to his state-habeas counsel’s actions,
not any mental illness from which Green may have suffered during state-court proceedings.
Thus, any friction between the Eighth Circuit’s decades-old precedent and the unpublished
decision below is not relevant to the resolution of this case.
Because Green identifies no split of authority relevant to this case and ignores multiple
vehicle problems with the questions on which he seeks review, his petition should be denied.
STATEMENT
I.
The Brutal Murder of Kristin Loesch
In 1999, Kristin Loesch was nineteen years old, ROA.6519, 1 and attending community
college in Houston, Texas, ROA.6499-500, 6519. She was described by those who loved her
“ROA.” refers to the electronic record on appeal in Green v. Lumpkin, No. 20-70021
(5th Cir.).
1
3
as having a “big heart,” and being “open,” “trustworthy,” “honest,” and “just a good girl.”
ROA.6493. She had just moved in with her high-school sweetheart, Bobby Stewart,
ROA.6519, from whom she was “inseparable,” ROA.6498.
One day that September, Kristin and Bobby hosted a get-together at their Houston
apartment. ROA.6487-93, 6519-20. After their friends left, they struck up a conversation
with a passerby named Travis, ROA.6524-29, with whom they spent the evening together
before dropping Travis off at his apartment complex. ROA.6529-33. Upon returning to their
own apartment, Kristin went to bed. ROA.6536. Bobby, whom everyone knew as a heavy
sleeper, fell asleep on the couch in a separate room. ROA.6539-45.
The next morning, Bobby found Kristin dead on the bedroom floor. ROA.6547-48. She
had been sexually assaulted, strangled, and suffered severe blunt-force trauma. ROA.67926803. The medical examiner’s autopsy revealed that Kristin’s liver contained a large tear,
and her abdomen was full of blood. ROA.6796-97. Such an injury requires an “extreme
amount of force” ordinarily comparable to a car crash. ROA.6799. There was hemorrhage
in her neck, and one of her neck bones was broken. ROA.6801-02. In other words, she had
been strangled to death, ROA.6803, but the trauma to her abdomen would have killed her
anyway. ROA.6803-04.
The “Travis” that Bobby and Kristin had met and that Bobby later described to police
matched petitioner, Travis Green. ROA.6647-51. Green also matched a neighbor’s
description of a man seen entering the apartment around the time Kristin died. ROA.646063. Green’s DNA was also found in semen and blood stains on Kristin’s shirt, semen in her
vagina, and skin under her fingernails. ROA.6763-74.
4
II. Green’s Trial
Green was charged with capital murder in Texas state court. ROA.4820. Judge Michael
McSpadden appointed counsel for Green, ROA.4822, but Green filed a motion invoking his
constitutional right to represent himself. ROA.4861. After Green executed a written waiver
of his right to counsel, ROA.4868, Judge McSpadden held a Faretta hearing to ensure that
Green was competent to proceed pro se. ROA.5302-03. Green indicated that he was
“competent enough and intelligent enough” to represent himself, that he had a right to
represent himself, and that he understood he would be held to the same rules as lawyers.
ROA.5306, 5311-17. Judge McSpadden also inquired into Green’s mental-health history and
appointed a doctor to assess Green’s competency, but Green refused to speak to him.
ROA.5312-13, 5042. Judge McSpadden ultimately permitted Green to proceed pro se, but
he ordered that existing counsel should remain as standby counsel and “be available on a
consulting basis only.” ROA.5305, 5315. Judge McSpadden later appointed Tyrone
Moncriffe as standby counsel. ROA.6979, 4870.
Judge McSpadden was replaced by Judge Robert Jones, who conducted a second
Faretta hearing to ensure Green’s competency. ROA.5323-26. Green indicated he
understood that his waiver might affect his appellate rights, and that he would need to
follow evidentiary rules, subpoena witnesses, and file motions properly. ROA.5332-51.
Green listened to admonishments and asked relevant questions. See ROA.5332-53. Green
explained that he was “being charged with capital murder,” and facing “the death penalty,
and that’s what [he was] going to defend” against. ROA.5353. Green repeatedly stated he
was competent and reaffirmed his waiver of counsel. ROA.5338-57. When Judge Jones
specifically inquired into Green’s mental-health history, Green explained that he had, on
5
occasion, spoken to a psychologist regarding social and economic issues, but had never been
diagnosed with any mental illness or admitted to a mental institution. ROA.5330-31, 534850. Like Judge McSpadden before him, Judge Jones deemed Green competent to waive his
rights and proceed pro se. ROA.5359; see also ROA.5965-66, 6415-16.
Through thirteen days of pretrial proceedings, neither Judge Jones nor the prosecutors
noted signs of incompetence. See ROA.5300-6399. Nevertheless, when Moncriffe informed
the court that he observed signs of paranoia, Judge Jones ordered a psychological
assessment. ROA.5965-66. A doctor evaluated Green, observed him during voir dire, and
issued a report concluding that Green was competent. ROA.5093-98. Green had no record
of mental illness, and a report from county medical staff assessed Green’s mental status as
normal. ROA.5093. Green’s mother reported no mental illness and attributed Green’s
nervousness and distrust of lawyers to his incarceration and previous experience.
ROA.5094. The bailiff similarly reported that Green told him he distrusted lawyers because
they had lied to him. ROA.5095-96.
During trial, Green actively defended himself. ROA.6419, invoking the Rule, ROA.6414,
asking relevant questions, including whether the prosecutor had “passed the witness,”
ROA.6464; examining exhibits before agreeing to admission, ROA.6473; and objecting to
testimony, ROA.6660-61. Green continued to reaffirm his desire to represent himself
throughout voir dire and trial. E.g., ROA.5421, 5523, 6414, 6697.
Faced with a mountain of eyewitness testimony and physical evidence, the jury
nonetheless found Green guilty. ROA.6849. As the trial moved into the punishment phase,
Green informed the court that he relinquished his right to self-representation. ROA.6861.
Moncriffe assumed Green’s representation. ROA.6861, 6863.
6
Green was ultimately sentenced to death. 2 ROA.7026. The Texas Court of Criminal
Appeals affirmed on direct appeal. Pet.App.222a-223a.
III. State-Habeas Proceedings
The trial court appointed Ken McLean to represent Green in state-habeas proceedings,
ROA.7417, who timely filed a state-habeas application on October 15, 2001. ROA.7422-35.
The application raised seven claims. ROA.7423-7432. Four of the claims raised were
presented only as headings. ROA.7432. McLean stated that he “intend[ed] to develop the
facts and law of these extra-record grounds for habeas relief with all deliberate speed.”
ROA.7432. Green himself had previously filed a habeas application pro se, ROA.7382, but
the court dismissed it because McLean represented Green, ROA.7448. Absent from
McLean’s petition on behalf of Green was any claim that Green, who had been found
competent twice, was nonetheless incompetent to stand trial. 3
The last possible date on which McLean could have supplemented Green’s state-habeas
application was November 12, 2001. ROA.7372-73. After that deadline lapsed, “McLean had
no contact with Green and made no filings on his behalf” for the next six years. Pet.App.5a.
Green’s DNA was also found in a glove near the body of Kassie Lynn Federer, another
19-year-old college student who was shot to death in her own Baton Rouge home just 11
days after Kristin’s brutal murder. Emily Shapiro, Man on death row for 1999 slaying now
linked by DNA to another woman's murder that same month, ABC News (Oct. 17, 2018),
https://tinyurl.com/2czdhewb. By the time that Louisiana authorities matched that DNA to
Green in 2018, he had already been sentenced to death in Texas.
2
Although this finding was made in the context of a Faretta hearing, the competency
needed to stand trial is the same competency needed to waive counsel. Godinez v. Moran,
509 U.S. 389, 396-401 (1993). The level of competency needed to represent oneself is at least
as high. See McKaskle v. Wiggins, 465 U.S. 168, 173 (1984) (requiring that a defendant
“knowingly and intelligently foregoes his right to counsel and that he is able and willing to
abide by rules of procedure and courtroom protocol.”); see also Indiana v. Edwards,
554 U.S. 164, 178 (2008).
3
7
In November 2007, the State moved for disposition of the writ, and the state court
ordered the parties to file any supplemental materials. ROA.7576-78. In April 2008, after
obtaining mental-health records from the Texas Department of Criminal Justice, McLean
filed a “Statement of Counsel” saying he could not “in good faith file Proposed Findings of
Fact and Conclusions of Law” warranting habeas relief. Pet.App.239a. McLean included
that he reviewed Green’s most recent mental-health examination from May 2007 and stated,
incorrectly, that it contained no indication of mental illness or incompetency at that time.
Pet.App.239a. Around 2009, McLean died, and the state-habeas trial court appointed
successor counsel. ROA.7662.
The state trial court recommended denying Green’s application for habeas relief.
Pet.App.219a-221a. The Texas Court of Criminal Appeals denied relief in 2013.
Pet.App.195a-196a.
IV. Federal-Habeas Proceedings
Green sought federal-habeas relief in 2014. ROA.77-316, 352-647. He argued that he
was incompetent to stand trial and that Moncriffe provided ineffective punishment-phase
assistance. Pet.App.13a. Green does not dispute that both claims were procedurally
defaulted because he failed to raise them in state-habeas proceedings. Pet. 2; Pet. for
Rehearing En Banc 3-4, Green v. Lumpkin, No. 20-70021 (5th Cir. May 4, 2023), ECF No.
93.
The federal district court found cause to overcome the default of Green’s competency
claim because it concluded that McLean abandoned Green within the meaning of Maples v.
Thomas, 565 U.S. 266. Pet.App.30a. The district court also found cause to overcome the
default of the punishment-phase ineffective-assistance claim because McLean provided
8
ineffective assistance as state-habeas counsel. Pet.App.85a-87a. The district court granted
relief on both claims. Pet.App.13a. 4
A panel of the Fifth Circuit reversed. Pet.App.2a. It held that it need not decide
whether McLean abandoned Green because “any abandonment that might have occurred
here” was not the cause of his default as it “did not take place until after the November 12,
2001 deadline for McLean to supplement Green’s habeas petition.” Pet.App.7a. The panel
further explained that “Texas law requires capital habeas petitioners to present all statehabeas claims in their initial application,” Pet.App.7a (citing Tex. Code Crim. Proc. art.
11.071 § 5(a)). Because Texas courts generally “will not entertain claims that appear for the
first time in a successive application,” Pet.App.8a, the court concluded “the default of
Green’s incompetency claim is attributable to McLean’s failure to raise it in Green’s initial
habeas application—rather than any subsequent abandonment under Maples.” Pet.App.9a.
In other words, the Fifth Circuit concluded that the gravamen of Green’s claim was that
McLean did not raise a claim in his initial habeas application that Green now wishes he had,
not that McLean had later abandoned him. See Pet.App.9a.
The Fifth Circuit rejected Green’s alternative argument based on “his incompetence
throughout the state-habeas proceedings” under existing circuit precedent. Pet.App.9a (at
n.2). Specifically, the court applied Gonzales, where the court had held that mental
incompetency does not satisfy cause to overcome procedural default because it is “not a
cause external to the petitioner.” 924 F.3d at 244 & n.4.
The district court technically granted relief on two separate claims alleging that
Moncriffe was ineffective for different reasons. Pet.App.13a, 120a. As Green does not
discuss those claims in his petition before this Court, the distinction between the claims is
irrelevant, and respondent will discuss it no further.
4
9
Green moved for rehearing en banc, which the Fifth Circuit denied without any
member of the court requesting a poll. Pet.App.12a. This petition followed.
REASONS FOR DENYING THE PETITION
As this Court has held, generally, “a federal court may not review federal claims that
were procedurally defaulted in state court.” Davila v. Davis, 582 U.S. 521, 527 (2017). But
a “state prisoner may overcome the prohibition on reviewing procedurally defaulted claims
if he can show ‘cause’ to excuse his failure to comply with the state procedural rule and
actual prejudice resulting from the alleged constitutional violation.” Id. at 528. To establish
cause, “the prisoner must ‘show that some objective factor external to the defense impeded
counsel’s efforts to comply with the State’s procedural rule.’” Id. (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)).
Green asserts that this Court’s intervention is necessary because the lower courts are
confused about the standard for reviewing whether cause exists, and whether mental
incompetence during state habeas proceedings can constitute cause. Green is wrong. 5
I.
The First Question Presented Does Not Warrant Review.
A.
There is no circuit split requiring this Court’s attention.
“The procedural default doctrine . . . refers to a complex and evolving body of equitable
principles informed and controlled by historical usage, statutory developments, and judicial
decisions.” Dretke v. Haley, 541 U.S. 386, 392 (2004). The doctrine “has its roots in the
Green pointedly does not raise a claim that he is currently incompetent to be executed
under Ford v. Wainwright, 477 U.S. 399 (1986), or Panetti v. Quarterman, 551 U.S. 930,
934 (2007). Such a claim would, in any event, be unripe as Green lacks an execution date.
See Green v. Thaler, 699 F.3d 404, 410 n.3 (5th Cir. 2012).
5
10
general principle that federal courts will not disturb state court judgments based on
adequate and independent state law procedural grounds.” Id. An “equitable exception”
exists “when a habeas applicant can demonstrate cause and prejudice for the procedural
default.” Id. at 393. The existence of cause is a “legal conclusion,” which is properly
reviewed de novo. Amadeo v. Zant, 486 U.S. 214, 222 (1988). By contrast, factual findings
supporting that legal conclusion are reviewed for clear error. Id. at 223.
As Green admits (at 19 & n.9), the Fifth Circuit follows this principle: It has held that
“in reviewing a grant of habeas relief, [the court] review[s] issues of law de novo and
findings of fact for clear error.” Prible v. Lumpkin, 43 F.4th 501, 513 (5th Cir. 2022), cert.
denied, 143 S. Ct. 2644 (2023); see Pet. 19. And consistent with this Court’s precedent, it
treats “whether a petitioner has shown cause and prejudice to excuse a procedural default”
as a legal question that “is reviewed de novo.” 43 F.4th at 513. Those statements are entirely
consistent with the notion in which findings of fact, which underlie that legal question, are
reviewed for clear error. Green nonetheless insists that the Fifth Circuit’s rule splits with
its sister circuits in two different ways. Those splits are illusory, irrelevant, or both.
1.
No circuit split exists as to the proper standard of review for
procedural default and cause to overcome it.
Green first contends (at 18) that this Court’s intervention is necessary because the
courts of appeals apply inconsistent standards of review in determining whether cause
exists to excuse procedural default. But Green conflates the difference between reviewing
the ultimate legal question of whether procedural default and cause exist with reviewing
factual findings supporting the existence of procedural default or cause to overcome it.
11
Because those are different questions, which are correctly subject to different standards of
review, there is no circuit split requiring this Court’s attention.
The cases from other circuits that Green cites are not to the contrary—as Green
effectively concedes. Citing cases with incomplete or generalized standards of review,
Green contends that the Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits, along
with the Fifth, simply review “procedural default rulings” de novo, Pet. 20, and writes off
clarifying or more specific cases as showing “a lack of intra-circuit consistency,” Pet. 21. He
then asserts that these standards of review are inconsistent with those employed by the
Second and Fourth Circuits, which examine factual questions for clear error. See Pet. 21.
No inconsistency exists because (unlike Green), these courts recognize the difference
between reviewing a factual finding and reviewing a legal conclusion that may flow from
that finding.
To begin, the Sixth Circuit has explained that “[i]n appeals of federal habeas corpus
proceedings,” it reviews “factual findings under a ‘clearly erroneous’ standard.”
Cvijetinovic v. Eberlin, 617 F.3d 833, 836 (6th Cir. 2010). It reviews “a district court’s legal
conclusions in a habeas petition de novo” and “accordingly” reviews “the district court’s
decision applying the cause and prejudice rules to the procedural bar issues de novo.” Id.
(cleaned up). “The district court’s determination regarding procedural default and its
resolution of whether cause and prejudice exist to excuse the default are . . . subject to de
novo review.” Id. (cleaned up). That standard applies because “cause and prejudice and
procedural default are questions of law, which [the court] review[s] de novo.” Burroughs v.
Makowski, 411 F.3d 665, 667 (6th Cir. 2005). Green acknowledges that in Hall v. Mays, 7
F.4th 433, 443 (6th Cir. 2021), the Sixth Circuit expressly held that “‘in an appeal of a district
12
court’s finding of procedural default, [it] review[s] the district court’s legal conclusions de
novo and its findings of fact for clear error.’” Pet. 21.
As to the Seventh Circuit, Green cites (at 20) a case reciting that it reviews the ultimate
question of “procedural defaults and related issues de novo.” Richardson v. Lemke,
745 F.3d 258, 269 (7th Cir. 2014). But the same circuit has also held that “[w]hen reviewing
a district court’s ruling on a habeas corpus petition, [it] review[s] the district court’s factual
findings for clear error and rulings on issues of law de novo.” Mata v. Baker, 74 F.4th 480,
485 (7th Cir. 2023). Again, as to the final question of “whether a claim is procedurally
defaulted,” the court reiterated that “[its] review is de novo.” Id.
Regarding the Eighth Circuit, Green cites a case holding that it reviews “a district
court’s finding of procedural default de novo.” Schawitsch v. Burt, 491 F.3d 798, 802 (8th
Cir. 2007); Pet. 20. But on the next page of his petition, Green acknowledges that the same
court has explained that it reviews “the factual findings of the district court for clear error
and a finding of procedural default de novo.” Anderson v. Kelly, 938 F.3d 949, 954 (8th Cir.
2019); Pet. 21. Green calls this “intra-circuit inconsistency,” Pet. 21, but it is nothing more
than one opinion written more specifically than another. No inconsistency exists.
Green continues the same routine with the Ninth Circuit, citing a case holding that a
“district court’s dismissal of the petition for writ of habeas corpus on the ground of state
procedural default presents issues of law that we review de novo.” La Crosse v. Kernan,
244 F.3d 702, 704 (9th Cir. 2001); Pet. 20. And then two pages later, he acknowledges that
the same court reviews “the denial of a petition for writ of habeas corpus brought under 28
U.S.C. § 2254 de novo. But to the extent it is necessary to review findings of fact made in
13
the district court, the clearly erroneous standard applies.” Schneider v. McDaniel, 674 F.3d
1144, 1148 (9th Cir. 2012) (cleaned up); Pet. 22.
Green’s proffered Tenth Circuit case states that it “reviews de novo whether claims are
procedurally barred.” Anderson v. Attorney General of State of Kansas, 342 F.3d 1140,
1143 (10th Cir. 2003); Pet. 20. But the same circuit has held that in habeas cases, “[w]hen
the state court did not determine the issue on its merits, and the district court decided the
issue in the first instance, [it] review[s] de novo the district court’s conclusions of law. [The
court] review[s] its findings of facts for clear error.” Fairchild v. Workman, 579 F.3d 1134,
1140 (10th Cir. 2009).
Finally, Green points to an Eleventh Circuit case holding that “[a] district court’s
dismissal of a habeas claim for procedural default is . . . reviewed de novo.” Fortenberry v.
Haley, 297 F.3d 1213, 1219 (11th Cir. 2002); Pet. 20. But he cites another Eleventh Circuit
case explaining that it reviews “de novo a district court’s grant or denial of a habeas corpus
petition. The district court’s factual findings are reviewed for clear error, while mixed
questions of law and fact are reviewed de novo.” Ward v. Hall, 592 F.3d 1144, 1155 (11th
Cir. 2010); Pet. 22.
So too with the Second and Fourth Circuits. The Second Circuit has explained that in
a procedural default case, the “grant or denial of habeas corpus is reviewed de novo, and
the underlying findings of fact are reviewed for clear error.” Clark v. Perez, 510 F.3d 382,
389 (2d. Cir. 2008). Similarly, the Fourth Circuit reviews “de novo the district court’s denial”
of a § 2254 petition. Juniper v. Davis, 74 F.4th 196, 208 (4th Cir. 2023). “In doing so” it
reviews “the district court’s legal conclusions de novo and findings of fact for clear error.”
Id.
14
In sum, no circuit split exists regarding the standard of review to apply in a proceduraldefault context. 6 Green simply cites cases that abridge the relevant standard of review,
while ignoring others that provide a more fulsome discussion.
2.
No circuit split exists as to whether the doctrine of equitable
tolling applies to cases like this.
Green also argues that courts of appeals apply different standards of review to this
Court’s equitable doctrine permitting tolling of the habeas corpus statute of limitations in
28 U.S.C. § 2244(d)(1). Pet. 22-23. To start, even if true, this argument is irrelevant, and
Green does not suggest that the statute of limitations is at issue in this case. But even if the
standard of review for tolling were somehow relevant, the courts of appeals that Green cites
apply the same standard of review as described above: legal conclusions regarding
equitable tolling are reviewed de novo, and factual findings are reviewed for clear error.
The only difference is that courts have some amount of discretion to determine whether to
grant the equitable relief of tolling even if the legal standard is met.
Green suggests that the Seventh Circuit applies a “‘deferential’” standard of review to
equitable tolling. Pet. 23 (quoting Perry v. Brown, 950 F.3d 410, 414 (7th Cir. 2020) (citing
Mayberry v. Dittmann, 904 F.3d 525, 530 (7th Cir. 2018)). But that merely references the
Seventh Circuit’s rule that a decision to toll limitations is reviewed “for an abuse of
discretion.” Mayberry, 904 F.3d at 530. But “an abuse of discretion occurs if the district
court reaches erroneous conclusions of law or premises its holding on a clearly erroneous
assessment of the evidence.” Gastineau v. Wright, 592 F.3d 747, 748 (7th Cir. 2010); see also
Any “intra-circuit inconsistency” is similarly illusory. See Pet. 21. In any event, such
inconsistency could be grounds for a habeas petitioner in the relevant circuit to seek en
banc review—not a reason for this Court to involve itself in Green’s case.
6
15
United States v. McMutuary, 217 F.3d 477, 483 (7th Cir. 2000). Thus, “[l]ittle turns, . . . on
whether [courts] label review of this particular question abuse of discretion or de novo”
because “a district court by definition abuses its discretion when it makes an error of law,”
Koon v. United States, 518 U.S. 81, 100 (1996), or clear error of fact, Cooter & Gell v.
Hartmarx Corp., 496 U.S. 384, 405 (1990).
The Eleventh Circuit, to which Green also points, Pet. 23, likewise reviews “de novo the
district court’s application of equitable tolling law to the facts,” and the “district court’s
factual findings are reviewed for clear error.” Thomas v. Attorney General, 992 F.3d 1162,
1179 (11th Cir. 2021).
Finally, Green cannot create a certworthy issue by pointing out (at 23) that “faced with
lingering questions of fact in confronting an equitable tolling argument,” the Sixth Circuit
has “remand[ed] [cases] for further factual development and legal argument.” Nassiri v.
Mackie, 967 F.3d 544, 548 (6th Cir. 2020). That statement does not change the Sixth
Circuit’s standard of review. Where “the facts are undisputed or the district court rules as
a matter of law that equitable tolling is unavailable,” like its sister courts, the Sixth Circuit
“appl[ies] the de novo standard of review to a district court’s refusal to apply the doctrine
of equitable tolling.” Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir. 2010). In “all other
cases, [it] appl[is] the abuse of discretion standard” Id. But a “district court abuses its
discretion when it relies on clearly erroneous findings of fact, improperly applies the law,
or uses an incorrect legal standard.” Id.
Again, even if equitable tolling were relevant to the standards of review raised in the
question presented, Green has not shown a split of authority requiring this Court’s
attention.
16
B.
This case presents a poor vehicle to resolve Green’s nonexistent circuit
split.
Even if the Court were to find tension in how the lower courts assess procedural
default, this would be a poor case to resolve it for two reasons. First, if the Court were to
conclude that abandonment under Maples is a factual question then it would be subject to
the state court’s factual findings under AEDPA. Here, the state-habeas court concluded, as
a matter of fact, that Green was represented even after the deadline for McLean to amend
Green’s state-habeas petition had lapsed. Second, under any standard of review, McLean
did not abandon Green during a time when his assistance could have been useful—namely,
before the state-habeas court’s deadline to amend his state-habeas petition had lapsed.
1.
If the time of abandonment is a factual finding, then the outcome
of Green’s case would not change under AEDPA.
This is a poor vehicle to resolve any hypothetical tension over the standard of review
for the time at which abandonment occurs because even if the Court were to conclude that
the time of abandonment is a factual finding, then it would not change the outcome of this
case. Under AEDPA, federal courts are required to defer to a state court’s factual findings.
“[A] determination of a factual issue made by a State court shall be presumed to be correct,”
and petitioners bear “the burden of rebutting the presumption of correctness by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1).
Here, a state court found that McLean had not abandoned Green but was instead acting
as counsel during the relevant time of his state-habeas proceedings. Specifically, when
Green filed a pro se state-habeas application, the state-habeas court dismissed it because it
noted that Green had court-appointed counsel, McLean, who had also filed a state-habeas
application. ROA.7448. That is a factual finding that occurred on February 11, 2002,
17
ROA.7448, after the November 2001 deadline passed to add an incompetency claim to
Green’s application. ROA.7372-73. That finding directly contradicts the district court’s
holding that McLean abandoned Green “‘from the beginning,’” Pet. 25 (citing Pet.App.34a),
and Green does not address it.
Nor could Green show by “clear and convincing evidence,” 28 U.S.C. § 2254(e)(1), that
he had been abandoned as early as 2002. He points to (at 24-25) McLean’s poor performance
in filing and subsequently litigating Green’s state-habeas application. In particular, Green
focuses on McLean’s 2008 “Statement of Counsel” that he could not in good faith file
findings of fact and conclusions of law warranting habeas relief. Pet. 25, 27; Pet.App.239a.
But actions that McLean took years after filing the state-habeas application cannot
overcome AEDPA’s required deference to the state-habeas court. And Maples itself
reaffirmed that simple attorney negligence is not cause to overcome procedural default. 565
U.S. at 280-81.
2.
McLean did not abandon Green under any standard of review at
the relevant time.
Apart from the deference owed to the state court’s determination that McLean
continued to represent Green at least as late as 2002, this is a poor vehicle to address the
standard of review for cause because under any standard of review, McLean did not
abandon Green within the meaning of Maples at the relevant time.
As explained above, though far from perfect, McLean timely filed a state-habeas
application on behalf of Green in October 2001. ROA.7422-35. The application raised seven
claims, but none were that Green had been incompetent to stand trial. ROA.7423-7432. The
last possible date on which McLean could have supplemented Green’s state-habeas
18
application was November 12, 2001, ROA.7372-73, and he did not do so. Pet.App.5a.
Because McLean timely filed the habeas application and the deadline to amend it expired
shortly thereafter, he did not abandon Green at that time within the meaning of Maples
under any standard of review.
Maples addressed abandonment in the most traditional sense of the term: While
Maples’s postconviction petition was pending in an Alabama trial court, his attorneys
accepted new employment that prohibited them from continuing to represent Maples
without “inform[ing] Maples of their departure and consequent inability to serve as his
counsel,” Maples, 565 U.S. at 270, seeking the Alabama trial court’s leave to withdraw, or
moving for substitution of counsel, id. at 270-71. When the Alabama trial court denied
Maples’s petition, no one received notice of the order, and the deadline to appeal the ruling
lapsed. Id. at 271. Under these “extraordinary facts,” this Court held that cause existed to
excuse the procedural default of missing the state appellate deadline. Id.
Maples established a narrow basis for cause where a habeas petitioner is actually left
without a lawyer without notice. Green does not contend that McLean actually stopped
representing him. He contends that, despite litigating, McLean constructively abandoned
him through poor representation. See Pet. 14-15. But such an expansion of Maples, would
run headlong into Coleman, which held that “[a]ttorney ignorance or inadvertence is not
‘cause’ because the attorney is the petitioner’s agent when acting, or failing to act, in
furtherance of the litigation, and the petitioner must bear the risk of attorney error.” 501
U.S. at 753. Far from overturning Coleman, Maples relied on it to reaffirm that
“[n]egligence on the part of a prisoner’s postconviction attorney does not qualify as ‘cause.’”
565 U.S. at 280 (quoting Coleman, 501 U.S. at 753).
19
The Court never “disturb[ed] that general rule,” either in Maples, id. at 281, or in the
intervening decade. Respondent is unaware of a case in which this Court has ever held that
abandonment occurs when an attorney files a timely but poorly done habeas petition. See
Young v. Westbrooks, 702 F. App’x 255, 265 (6th Cir. 2017) (“To our knowledge, no other
court of appeals has held that a lawyer abandons his client despite filing a brief on his behalf,
and we will not be the first to extend Maples in this fashion.”). And Green has pointed to
none. To do so now would require the Court to expand Maples in such a way as to swallow
the basic rule that attorney negligence is not cause.
As a result, if McLean abandoned Green, it did not happen until after the deadline to
supplement his state-habeas application, regardless of any standard of review. Once that
deadline passed, no attorney could have added the incompetency claim that Green now
seeks to pursue. Texas law requires that if “a subsequent application for a writ of habeas
corpus is filed after filing an initial application, a court may not consider the merits of or
grant relief based on the subsequent application” with exceptions not relevant here. Tex.
Code Crim. Proc. art. 11.071 § 5(a). Accordingly, as the Fifth Circuit held, “the default of
Green’s incompetency claim is attributable to McLean’s failure to raise it in Green’s initial
habeas petition.” Pet.App.9a. Any actions that he or any other attorney took or could have
taken beyond that deadline changed nothing as to the default of Green’s incompetency
claim, making this a poor vehicle to resolve any lingering questions about the standard of
review.
20
C.
The Fifth Circuit correctly concluded that whether (and by extension
when) an attorney has abandoned his client presents a question of law.
Though the Fifth Circuit did not expressly state the standard of review, it properly
refused to defer to the district court’s finding of abandonment, or when it occurred. See
Pet.App.2a. Green is mistaken that the district court’s holding that McLean abandoned him
“from the beginning” is a factual finding. Pet. 25. The time at which McLean took various
actions are factual findings. Whether (and, by extension, when) those actions rose to the
level of abandonment is a legal conclusion.
Maples itself determined de novo both that abandonment occurred and when it did.
This Court has long held that the existence of cause is a “legal conclusion.” Amadeo, 486
U.S. at 222. In Maples, the “sole question” the Court reviewed was “whether, on the
extraordinary facts of Maples’ case, there is ‘cause’ to excuse the default.” 565 U.S. at 271;
see id. at 280 (“[This Court] granted certiorari to decide whether the uncommon facts
presented here establish cause adequate to excuse Maples’ procedural default.”). In
answering this question, the Court conducted a de novo review of a legal conclusion based
on an undisputed set of facts.
The material facts of Maples were, by the time they reached this Court, undisputed:
two associates at the law firm of Sullivan & Cromwell represented Maples in state
postconviction proceedings in Alabama. Id. at 274. As noted above, both left their client
without a lawyer and without notice. Id. at 275. Because no other Sullivan & Cromwell
lawyer entered an appearance on behalf of Maples, id., no one received notice that relief
had been denied, and no notice of appeal was filed, id. at 277-79.
21
The Court reviewed de novo whether cause existed to overcome the default on this set
of facts. The State argued that Sullivan & Cromwell represented Maples “throughout” his
state postconviction proceedings, but the Court “disagree[d].” Id. at 283; cf. Pet. 26. The
Court explained that the two associates severed their agency relationship with Maples by
accepting new employment in positions that prevented them from continuing to represent
Maples. Id. at 283-84. The Court also explained that because no other relevant attorneys at
Sullivan & Cromwell “had the legal authority to act on Maples’ behalf before his time to
appeal expired,” they were not Maples’ agents “at the time critical to preserving Maples’
access to an appeal.” Id. at 286-87. The Court ultimately concluded that for reasons entirely
outside Maples’ control, “Maples lacked the assistance of any authorized attorney during
the 42 days Alabama allows for noticing an appeal from a trial court’s denial of
postconviction relief.” Id. at 289. At no point did the Court even mention the “clearly
erroneous” standard of review or defer to the district court’s determinations as to the legal
conclusion of cause. Rather, it reversed the district court as affirmed by the Eleventh
Circuit. Id. at 279, 290.
The Fifth Circuit correctly applied Maples. It treated the state-habeas attorney’s
actions taken during his representation as facts, but it reviewed the legal conclusion of when
abandonment occurred de novo. Pet.App.4a-9a. The Court need not, and given the alreadylengthy delay in providing justice to Kristin’s family should not, grant review to reaffirm
that conclusion.
II. The Second Question Presented Does Not Warrant Review.
The Court should also decline to review any circuit split regarding whether
incompetence during state-habeas proceedings forms cause to overcome procedural
22
default. Pet. 30. Contrary to Green’s contentions, only one circuit, the Eighth, has held that
such mental illness can serve as cause—over 20 years ago and even then, in only limited
circumstances. Compare Hull v. Freeman, 991 F.2d 86, 91 (3d Cir. 1993) with Holt v.
Bowersox, 191 F.3d 970, 974 (8th Cir. 1999). The duration of the split underscores how few
cases it actually effects. This is not one of them. Because Green had state-habeas counsel
who could have raised Green’s incompetency claim based on information apparent on the
face of the trial-court records, any mental illness Green may have suffered in 2001 would
not represent cause under the law of any circuit. The Fifth Circuit was thus correct to reject
this claim.
A.
Any circuit split is shallow, longstanding, and not worthy of this Court’s
review.
Respondent does not dispute that several circuits have addressed whether mental
incompetency during state-habeas proceedings can excuse a procedural default. Green is
incorrect, however, to assert (at 30-32) that the Fifth Circuit decision below, together with
two other circuits, splits from the Fourth, Eighth, Ninth, and Eleventh Circuits in rejecting
such a claim. In reality, only the Eighth Circuit has accepted that under certain limited
circumstances incompetency can form the basis for cause to excuse default of a claim in
state-habeas proceedings—more than two decades ago. That no circuit has joined, and this
Court has never reviewed, the Eighth Circuit’s rule in the intervening time suggests that
the Court’s intervention is unwarranted now. Perhaps more importantly, this case does not
implicate the narrow range of circumstances where the circuits have arguably diverged, so
review is unwarranted.
23
1.
The panel below correctly noted (at Pet.App.9a n.2) that this is not the first time
the Fifth Circuit has addressed the issue of whether incompetence during state-habeas
proceedings represents cause to excuse a procedural default. In Gonzales, the Fifth Circuit
held that it did not because mental incompetency is not “external to the petitioner.” 924
F.3d at 244. Other circuits agree. The Third Circuit has held that a mental disability is not
“external” to a petitioner’s “defense within the meaning of Carrier.” Hull, 991 F.2d at 91.
The Seventh Circuit has followed suit, also holding that mental illness is not cause for
default because “something that comes from a source within the petitioner is unlikely to
qualify as an external impediment.” Harris v. McAdory, 334 F.3d 665, 669 (7th Cir. 2003). 7
Green is wrong to suggest (at 31-32) that the Fourth, Ninth, or Eleventh Circuits have
adopted a different view. The cases that Green cites from the Fourth and Eleventh Circuits
merely “assum[e] that profound mental illness may constitute cause to excuse a procedural
default in certain circumstances,” before rejecting a habeas petition for other reasons.
Farabee v. Johnson, 129 F. App’x 799, 802 (4th Cir. 2005) (denying a claim because
“Farabee has not demonstrated that any mental illness actually caused his procedural
defaults”); Smith v. Newsome, 876 F.2d 1461, 1465 (11th Cir. 1989) (“[W]e assume that a
pro se habeas petitioner who lacked the mental capacity to understand the nature and
Green is correct (at 30-31) that the Sixth Circuit has also held in an unpublished
opinion that “a borderline mental impairment is not cause for excusing procedural default.”
Johnson v. Wilson, 187 F. App’x 455, 458 (6th Cir. 2006). But the same court has
subsequently noted in a published opinion that the question remains open in the
jurisdiction. Clark v. United States, 764 F.3d 653, 660 n.3 (6th Cir. 2014); see also Terry v.
Jackson, No. 16-4330, 2017 WL 5664915, at *2 (6th Cir. July 17, 2017); Nelson v. Shoop, No.
19-3667, 2019 WL 7578382, at *2 (6th Cir. Dec. 23. 2019).
7
24
object of habeas proceedings and to present his case for habeas relief in a rational manner
would have cause for omitting a claim in such proceedings.”).
At most, the Ninth Circuit has suggested—but again did not hold—that mental illness
might, in limited circumstances, serve as cause to excuse procedural default in pro se cases,
not cases in which the petitioner was represented by counsel during state-habeas
proceedings as Green was. Contra Pet. 32. Schneider opined that its precedents “do not
necessarily foreclose the possibility that a pro se petitioner might demonstrate cause in a
situation where a mental condition rendered the petitioner completely unable to comply
with a state’s procedures and he had no assistance.” 674 F.3d at 1154 (emphasis added). But
the Ninth Circuit also expressly said that even “a pro se petitioner’s mental condition
cannot serve as cause for a procedural default, at least when the petitioner on his own or
with assistance remains able to apply for post-conviction relief to a state court.” Id.
(emphases added). In other words, the Ninth Circuit did not even expressly rule that mental
illness served as cause but suggested that, if it could, such a rule would apply only to pro se
petitioners who lacked assistance, such as from other inmates—let alone from a licensed
lawyer. See id.
2.
The Eighth Circuit has held that mental illness may serve as cause in limited
circumstances—in the 1990s. But since then, its rule has never been adopted by another
circuit or deemed to necessitate review by this Court. The Eighth Circuit has explained, in
cases where a mentally ill petitioner “never had post-conviction counsel,” Holt, 191 F.3d at
973, that “[i]n order for mental illness to constitute cause and prejudice to excuse
procedural default, there must be a conclusive showing that mental illness interfered with
a petitioner’s ability to appreciate his or her position and make rational decisions regarding
25
his or her case at the time during which he or she should have pursued post-conviction
relief.” Id. at 974. “Mental illness prejudices a petitioner if it interferes with or impedes his
or her ability to comply with state procedural requirements, such as pursuing postconviction relief within a specific time period.” Id. Indeed, the Eighth Circuit has applied
this rule in other cases where a pro se petitioner procedurally defaulted. See Gordon v.
Arkansas, 823 F.3d 1188, 1191, 1196-97 (8th Cir. 2016).
But other Eighth Circuit cases confirm the importance of counsel in the analysis. For
example, one case found that a petitioner with depression who had once filed a pro se
postconviction motion did not show cause to excuse procedural default because that
petitioner otherwise “was represented by postconviction counsel[,] and there is no evidence
[petitioner] was unable to consult with her.” Ervin v. Delo, 194 F.3d 908, 916 (8th Cir. 1999).
In another case, the Eighth Circuit rejected a claim that mental illness overcame
procedural default because there was “no evidence that mental illness hindered
[petitioner’s] ability to consult with counsel, file pleadings, or otherwise comply with
Missouri requirements for postconviction relief so mental illness is not cause to excuse his
procedural default.” Malone v. Vasquez, 138 F.3d 711, 719 (8th Cir. 1998).
This Court has never deemed it necessary to review this longstanding split, likely
because the issue rarely arises. To respondent’s knowledge, the Eighth Circuit has never
granted relief by applying Holt to a case with counsel. Further, in Maples, this Court
recognized that nearly all States have guaranteed counsel in postconviction proceedings in
habeas cases. See Maples, 556 U.S. at 272 (noting that Alabama was “early alone among the
States” in not providing such counsel); Eric M. Freedman, Giarratano Is a Scarecrow: The
Right to Counsel in State Capital Postconviction Proceedings, 91 Cornell L. Rev. 1079,
26
1086 (2006) (finding that 89% of death-penalty States provide for counsel). More recent
Eighth Circuit case law rejected a claim that default “should be excused due to . . . mental
incompetence” because “regardless of how incompetent [petitioner] now contends he was,
[petitioner] was represented during the state court proceedings, and [petitioner’s]
incompetence did not prevent his counsel from raising the competency issue.” Lyons v.
Luebbers, 403 F.3d 585, 592-93 (8th Cir. 2005) (emphasis in original).
B.
This case presents a poor vehicle to determine whether mental
incompetence may excuse procedural default.
This case presents a poor vehicle for this Court to consider whether mental
incompetence may excuse default because the circuit split isn’t implicated. After all, even
in the Eighth Circuit, petitioners with state-habeas counsel typically cannot assert cause
based on mental illness. Id. And Green had counsel. Green argued to the district court that
his incompetence during state-habeas proceedings nonetheless should be considered cause
to excuse the default of his competency claim because “McLean had grounds to investigate
[his] mental condition before he filed the state habeas application.” Pet.App.130a. The
district court explained that it need not consider that issue because it found that McLean
abandoned Green under Maples, which satisfied cause. Pet.App.35a n.13. But in so holding,
it made factual findings—which Green fully embraces for the purpose of the first question
presented—which doom this claim. Specifically, the court found that there was “no
indication McLean did any investigation or had any communication with Green,”
Pet.App.31a, and that he “completely failed . . . even to communicate with Green, for
roughly seven years.” Pet.App.34a. If that is true, then the default may have been caused
27
by negligence on McLean’s part. Supra p. 20. But it could not have been caused by any
mental illness from which Green may or may not have suffered.
Moreover, the record belies any notion that incompetence “prevent[ed] [Green’s]
counsel from raising the competency issue.” Lyons, 403 F.3d at 592-93. To the contrary,
McLean was on notice of the potential issue from the fact that two different judges
conducted two separate Faretta hearings before allowing Green to exercise his
constitutional right to defend himself. Supra p. 5. And the petition points to the fact that
when Moncriffe took over representation of Green at the penalty phase, he made “Green’s
mental condition the central theme of his closing argument” and pled with jurors that “‘[w]e
don’t kill sick people.’” Pet. 13 (quoting Pet.App.91a). That is, notwithstanding that the trial
court had found Green competent, it permitted Moncriffe to argue to the jury that Green
should nonetheless not be executed because:
Something unusual about this case to you? Guy representing himself? Doesn’t
know how to ask questions. Having difficulty presenting questions. You tell
me if you didn’t see something wrong. We had no psychiatric examinations or
reports to bring in. And the reason I couldn’t bring them in is because I was
not the lawyer . . . But folks, look, I want you to use some of your common
sense with me. Something [is] wrong.
ROA.6988. Thus, Moncriffe’s closing statement would have alerted McLean to the existence
of a possible incompetency claim without any need to speak to Green.
With these facts, Green could not show that any mental illness during his state-habeas
proceedings established cause even under the Eighth Circuit’s rule because he had statehabeas counsel and his mental illness would not have prevented McLean from raising
Green’s defaulted competency claim. As a result, this is a poor vehicle to resolve any tension
that may remain between the Eighth Circuit and the Fifth Circuit regarding whether and
28
when mental illness should be deemed a cause “external to the petitioner” sufficient to
overcome a procedural default. Gonzales, 924 F.3d at 244.
C.
At least with representation, mental incompetence does not establish
cause to overcome procedural default.
Finally, review is unwarranted because, at least when a state-habeas petitioner has
counsel, mental incompetence is not cause to overcome procedural default. “Together,
exhaustion and procedural default promote federal-state comity.” Shinn v. Ramirez, 596
U.S. 366, 378 (2022). Flipsides of the same coin, these rules give meaning to the bedrock
principles that “[u]nder our federal system, the federal and state courts are equally bound
to guard and protect rights secured by the Constitution,” and that “States should have the
first opportunity to address and correct alleged violations of state prisoner’s federal rights.”
Coleman, 501 U.S. at 731; see also, e.g., Shinn, 596 U.S. at 379. They also reflect a specific
application of the larger principle that this Court cannot—or at least should not—disturb a
state-court judgment that rests on an “independent and adequate state ground.” Coleman,
501 U.S. at 731-32; Michigan v. Long, 463 U.S. 1032, 1041-42 (1983) (noting that this
“principle . . . is based, in part, on “the limitations of our own jurisdiction.”) (Herb v.
Pitcairn, 324 U.S. 117, 125 (1945)).
In putting these principles into practice, the Fifth Circuit correctly recognized (at
Pet.App.6a) that to establish cause, Green must “show that some objective factor external
to the defense impeded counsel’s efforts to comply with the State’s procedural rule.”
Davila, 582 U.S. at 528 (emphasis added). “A factor is external to the defense if it cannot
fairly be attributed to the prisoner.” Id. This Court has not interpreted “external to the
defense” to refer to any health problems of the petitioner, and it should not do so now.
29
“Presently, there are four methods for a petitioner to establish ‘cause’ for the failure to
comply with state procedural rules,” all of which focus exclusively on the actions of others,
whether they be state actors or the petitioner’s attorney. 7 Wayne R. LaFave et al.,
Criminal Procedure § 28.4(d) (4th ed. Dec. 2023 update): (1) governmental interference,
Murray, 477 U.S. at 488; (2) denial of the right to the effective assistance of counsel at a
time when the right attaches, Coleman, 501 U.S. at 753-54; (3) actual abandonment by
counsel during postconviction proceedings, Maples, 565 U.S. at 271; and (4) a substantial
claim of ineffective assistance of trial counsel with ineffective counsel during state-habeas
proceedings, Trevino v. Thaler, 569 U.S. 413, 423 (2013) (citing Martinez v. Ryan, 566 U.S.
1 (2012)).
Green argues that it is unfair “to attribute responsibility for incompetence to the person
suffering from a disease.” Pet. 35. But the same could be said of other health problems such
as deafness, blindness, or various learning disabilities, not to mention impediments caused
by socio-economic conditions outside the petitioner’s control (e.g., illiteracy or limited
fluency in English). Such ambiguous notions of fairness, however, cannot be held as cause
to excuse procedural default without fatally undermining the comity and federalism
concerns that animate the procedural default rule. After all, as more than one court
explained, to “hold that illiteracy is cause for state procedural default would allow those
petitioners who happen to be illiterate to engage in forum shopping.” Smith, 876 F.2d at
1466. “Claims could be reserved for federal court if the petitioner perceived that the federal
fact-finder might be more sympathetic to those claims than the state fact-finder.” Id.
Mental illness and illiteracy are obviously not the same, but when the petitioner is
represented, they present the same problem: Like illiteracy, if the Court were to accept
30
mental-illness by a represented petitioner as “a legitimate cause for failing to appeal to the
state supreme court,” it “would allow petitioners”—or their lawyers—“to wait until the
jurisdictional period lapsed and then proceed directly to federal court. Such a result would
be contrary to the principles of comity underlying the cause and prejudice rule.” Schneider,
674 F.3d at 1153-54. The Fifth Circuit was entirely correct to reject Green’s proposed rule,
which would create incentives to litigate in ways that would disregard “finality, comity, and
the orderly administration of justice.” Shinn, 596 U.S. at 379.
C ONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KEN PAXTON
Attorney General of Texas
AARON L. NIELSON
Solicitor General
BRENT WEBSTER
First Assistant
Attorney General
/s/ Lanora C. Pettit
LANORA C. PETIT
Principal Deputy Solicitor General
Counsel of Record
OFFICE OF THE
ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
[Tel.]: (512) 936-1700
[Fax]: (512) 474-2697
Lanonra.Pettit@oag.texas.gov
BENJAMIN WALLACE MENDELSON
Assistant Solicitor General
Counsel for Respondent
APRIL 2024
31
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.