Amicus Curiae Brief — Richard Lee Tabler, Petitioner v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division

Supreme Court briefMay 13, 2024

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No. 23-7227

IN THE

RICHARD LEE TABLER,

Petitioner,

BOBBY LUMPKIN, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS

DIVISION,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF OF AMICI CURIAE CAPITAL DEFENSE

ATTORNEYS AND FORMER JUDGES IN

SUPPORT OF PETITIONER

Pamela S. Karlan

Counsel of Record

Easha Anand

Jeffrey L. Fisher

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

(650) 725-4851

karlan@stanford.edu

TABLE OF CONTENTS

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

INTERESTS OF AMICI CURIAE .............................. 1

SUMMARY OF ARGUMENT ..................................... 4

ARGUMENT ................................................................ 6

The impulse to forgo post-conviction review

is common but transitory for capital

defendants ............................................................. 7

II. Clients who receive guidance and assistance

from counsel almost never waive their right

to post-conviction review .................................... 11

III. If a client’s competence becomes a question

for the court, counsel need to participate

fully in any judicial proceedings ........................ 15

IV. Petitioner’s case presents the Court with

the right opportunity to clarify what, in this

setting, constitutes cause for procedural

default ................................................................. 20

CONCLUSION .......................................................... 24

TABLE OF AUTHORITIES

Page(s)

Cases

Appel v. Horn,

250 F.3d 203 (3d Cir. 2001) ................................. 20

Belcher v. State,

93 S.W.3d 593 (Tex. Crim. App. 2002) ............... 19

Comer v. Stewart,

215 F.3d 910 (9th Cir. 2000) ............................... 19

Cox v. State,

327 So. 3d 100 (Miss. 2021)................................. 17

Davila v. Davis,

582 U.S. 521 (2017) ......................................... 5, 23

Davis v. Ayala,

576 U.S. 257 (2015) ............................................... 8

Drope v. Missouri,

420 U.S. 162 (1975) ....................................... 17, 18

Durocher v. Singletary,

623 So. 2d 482 (Fla. 1993) ................................... 17

Falk v. State,

2018 WL 3570596 (Tex. Crim. App.

July 25, 2018) ...................................................... 23

Faretta v. California,

422 U.S. 806 (1975) ............................................. 12

Johnson v. Catoe,

548 S.E.2d 587 (S.C. 2002) .................................... 4

Johnson v. Zerbst,

304 U.S. 458 (1938) ............................................... 8

iii

Lawyers Disciplinary Bd. v. Palmer,

798 S.E.2d 610 (W. Va. 2017) ............................. 12

Lisenbee v. City of Clarksville Gas & Water,

2013 WL 3070997 (M.D. Tenn. June 18,

2013) .................................................................... 12

Mata v. Johnson,

210 F.3d 324 (5th Cir. 2000) ......................... 17, 18

Medina v. California,

505 U.S. 437 (1992) ............................................. 17

Ex parte Medina,

361 S.W.3d 633 (Tex. Crim. App. 2011) ............. 16

In re Medley,

134 U.S. 160 (1890) ............................................... 8

Padilla v. Kentucky,

559 U.S. 356 (2010) ............................................. 12

Panetti v. Quarterman,

551 U.S. 930 (2007) ............................................... 4

Porter v. McCollum,

558 U.S. 30 (2009) (per curiam) .......................... 14

Roberts v. State,

426 S.W.3d 372 (Ark. 2013) ................................ 17

Rompilla v. Beard,

545 U.S. 374 (2005) ............................................. 14

State v. Motts,

707 S.E.2d 804 (S.C. 2011) .................................. 17

Trevino v. Thaler,

569 U.S. 413 (2013) ............................................... 5

United States v. Collins,

430 F.3d 1260 (10th Cir. 2005) ........................... 20

Statutes

28 U.S.C. § 2254(b) .......................................... 7, 20, 24

Tex. Code Crim. Proc. Ann. art. 11.071 § 2 ............. 16

Tex. Code Crim. Proc. Ann. art. 11.071 § 4(a) .......... 21

Tex. Code Crim. Proc. Ann. art. 11.071

§ 4A(b)(3).............................................................. 16

Legislative Materials

Cal. Senate Bill 513 (Ch. 869, 1998 Cal. Stat.) .......... 2

Other Authorities

American Bar Association, Criminal Justice

Standards for Defense Function (4th ed.

2017) .............................................................. 18, 19

American Bar Association, Guidelines for

the Appointment & Performance of

Defense Counsel in Death Penalty Cases

(2003) ........................................... 11, 12, 13, 15, 16

American Bar Association, Model Rules of

Professional Conduct (2024) ............. 11, 12, 18, 19

American Bar Association Death Penalty

Due Process Review Project, Severe

Mental Illness and the Death Penalty

(2016) ..................................................................... 8

Baumgartner, Frank et al., Deadly Justice

(2017) ..................................................................... 6

Blume, John H. et al., Competent Capital

Representation: The Necessity of

Knowing and Heeding What Jurors Tell

Us About Mitigation, 36 Hofstra L. Rev.

1035 (2008) ..................................................... 13-14

Blume, John H., Killing the Willing:

“Volunteers,” Suicide, and Competency,

103 Mich. L. Rev. 939 (2005) .................... 7, 10, 11

Blume, John H., Volunteers with Mental

Illness or Substance Abuse Since 2005

(2022) (unpublished) ............................................. 9

Dow, David R. & Jeffrey R. Newberry,

Reversal Rates in Capital Cases in

Texas, 2000-2020, UCLA L. Rev.

Discourse (Apr. 2020) .......................................... 23

Garnett, Richard W., Sectarian Reflections

on Lawyers’ Ethics and Death Row

Volunteers, 77 Notre Dame L. Rev. 795

(2002) .............................................................. 10-11

Grassian, Stuart, Psychiatric Effects of

Solitary Confinement, 22 Wash. U. J.L.

& Pol’y 325 (2006) ................................................. 9

Harrington, C. Lee, A Community Divided:

Defense Attorneys and the Ethics of

Death Row Volunteering, 25 Law & Soc.

Inquiry 849 (2000) ......................................... 13, 19

Hertz, Randy & James S. Liebman, Federal

Habeas Corpus Practice & Procedure

(7th ed. 2023) ................................................. 10, 15

Rountree, Meredith Martin, “I’ll Make Them

Shoot Me”: Accounts of Death Row

Prisoners Advocating for Execution, 46

Law & Soc’y Rev. 589 (2012) ................................. 9

State Bar of Texas, Guidelines & Standards

for Texas Capital Counsel (2006) ................. 13, 15

Supreme Court of Ohio Task Force on

Conviction Integrity & Postconviction

Review, Report and Recommendations of

the Task Force on Conviction Integrity

and Postconviction Review (2022) ..................... 16

White, Welsh S., Defendants Who Elect

Execution, 48 U. Pitt. L. Rev. 853 (1987) ........... 11

INTERESTS OF AMICI CURIAE 1

Amici are capital defense attorneys and former

judges. Amici defense attorneys have collectively

represented hundreds of death row defendants at the

trial, direct appeal, and collateral review stages. Amici

former judges have presided over cases raising issues

including

competency,

waivers,

and

capital

sentencing.

John H. Blume is the Samuel S. Leibowitz

Professor of Trial Techniques at Cornell Law School,

where he also serves as Director of the Cornell Death

Penalty Project. Professor Blume’s scholarship and

teaching focus on capital punishment, evidence, and

post-conviction remedies. He has published several

books and many articles and book chapters in those

three areas. Additionally, Professor Blume has

represented numerous death-sentenced inmates in

state and federal trials, as well as appellate and postconviction proceedings. He has argued eight capital

cases before this Court.

David I. Bruck is an attorney with forty-four

years of experience representing state and federal

capital defendants at trial, on appeal, and in postconviction proceedings. He has served as Federal

Death Penalty Resource Counsel to the federal

defender system nationwide since 1992 and as a

Clinical Professor of Law and Director of the Virginia

Pursuant to Rule 37.6, amici affirm that no counsel for a

party authored this brief in whole or in part and that no person

other than amici or their counsel has made a monetary

contribution intended to fund the preparation or submission of

this brief. Counsel for amici provided counsel for respondent with

notice of our intention to file as soon as the first amicus agreed to

file, on May 6, 2024.

Capital Case Clearinghouse at Washington and Lee

School of Law between 2004 and 2020. He has argued

seven capital cases before this Court, and he currently

serves as lead counsel for a defendant in a capital trial

before the 9/11 military commission at Guantanamo

Bay, Cuba.

Jeremy Fogel is the Executive Director of the

Berkeley Judicial Institute. Prior to his appointment

at Berkeley, he served as Director of the Federal

Judicial Center in Washington, D.C. (2011-2018), as a

United States District Judge for the Northern District

of California (1998-2011), and as a judge of the Santa

Clara County Superior (1986-1998) and Municipal

(1981-1986) Courts. He was the founding Directing

Attorney of the Mental Health Advocacy Project from

1978 to 1981.

Nancy Gertner is a senior lecturer at Harvard

Law School where she teaches a number of subjects,

including criminal law, criminal procedure, forensic

science, and sentencing. She has also been an

instructor at Yale Law School, teaching sentencing

and comparative sentencing institutions, since 1998.

Prior to her appointment at Harvard, she served as a

United States District Judge for the District of

Massachusetts (1994-2011).

The Habeas Corpus Resource Center (HCRC) is

an entity in the Judicial Branch of the State of

California responsible for representing indigent

California capital petitioners in state and federal

habeas corpus proceedings. See Cal. Senate Bill 513

(Ch. 869, 1998 Cal. Stat.). Since 1999, the HCRC has

accepted appointments by the state and federal courts

in over 100 cases, recruited and trained private

counsel in capital habeas corpus proceedings, and

served as a resource to the private capital defense bar.

California has the nation’s largest death row.

George H. Kendall is Senior Counsel and

Director of Squire Patton Boggs (US) LLP’s Public

Service Initiative, a working group that focuses

entirely on significant pro bono cases and projects. Mr.

Kendall has handled capital trial and post-conviction

matters since 1980, has taught courses on capital

punishment and post-conviction litigation at

Columbia and St. John’s Law Schools, and has advised

on and filed numerous amicus briefs in habeas and

capital cases before this Court since 1988.

Lawrence Marshall is a Professor of Law at

Stanford Law School. Before coming to Stanford, he

served as a Professor of Law at Northwestern

University School of Law, where he co-founded and

served as Legal Director of the Center on Wrongful

Convictions. In that capacity he represented several

men sentenced to death who, although ultimately

exonerated, expressed the desire on several

intermittent

occasions

forgo

further

appeals. Professor Marshall has long taught courses

in professional responsibility, which include

examination of a lawyer’s duty to ensure that a client’s

stated preferences truly reflect the client’s actual

wishes, reached after the lawyer has meaningfully

informed the client of all the ramifications of

proceeding in any particular way.

The Office of the Ohio Public Defender (OPD) is

the state agency in Ohio responsible for providing

legal representation and other services to people

accused or convicted of a crime who cannot afford to

hire an attorney. OPD provides representation in

appeals and post-conviction actions in death penalty,

criminal, and juvenile delinquency cases, as well as at

trial when requested by local courts and in counties

that contract with OPD for trial services. OPD’s Death

Penalty Department represents persons convicted and

sentenced to death in the following practice areas:

direct appeal, state post-conviction, federal habeas,

clemency, lethal injection litigation, and ancillary

litigation. OPD’s mission is “Advocating, Fighting,

Helping.” OPD’s vision is “A Fair Justice System.”

Costa M. Pleicones served on the Supreme Court

of South Carolina, including service as Chief Justice,

from 2000-2016, when he attained mandatory

retirement age. He then served as an active-retired

justice until 2018, when he re-entered private practice.

He dissented in Johnson v. Catoe, 548 S.E.2d 587 (S.C.

2002), which denied a new trial to a capital defendant

despite a confession to the murder by a prior witness

for the state.

Gregory W. Wiercioch is a clinical professor at

the University of Wisconsin Law School and a

supervising attorney with Legal Assistance to

Incarcerated People. He has over thirty years of

experience representing people on death row in state

and federal post-conviction proceedings. In doing so,

he has represented many severely mentally ill clients,

and he appeared before this Court to argue on behalf

of one of them in Panetti v. Quarterman, 551 U.S. 930

(2007). Additionally, Professor Wiercioch co-founded

the Texas Defender Service in 1995.

SUMMARY OF ARGUMENT

This case offers the Court an opportunity to

address an important issue: whether a capital habeas

petitioner’s procedural default is excused when his

lawyers renounced their duties, both before and

during the proceeding at which he waived his right to

state post-conviction review. This Court should hold

that it is.

This Court has recognized that the first round of

state post-conviction review is critical to the integrity

of the capital punishment process. This is particularly

so because post-conviction review is generally an

incarcerated person’s first opportunity to raise

constitutional claims about the ineffective assistance

of trial counsel. See Davila v. Davis, 582 U.S. 521, 532

(2017); Trevino v. Thaler, 569 U.S. 413, 417 (2013).

Most individuals sentenced to death pursue state

post-conviction review. And many of them succeed,

either in that process or in a subsequent federal

habeas proceeding.

But if they forgo the right to pursue state postconviction review, especially with respect to ineffective

assistance of trial counsel claims, this will likely

foreclose any future avenue for judicial relief. In effect,

defendants who forgo state post-conviction review are

asking the state to execute them as soon as possible.

Notwithstanding the importance and value of

seeking state post-conviction relief, many capital

defendants, like petitioner, at some point express an

impulse to abandon their claims. But this impulse is

almost always transitory and rarely reflects a

reasoned decision. Instead, it generally stems from a

combination of factors unrelated to the strength of a

defendant’s claims, including a misunderstanding of

the consequences of waiver, mental illness, despair, or

defense lawyers’ neglect.

Post-conviction counsel play an essential role in

assisting, advising, and advocating for clients who

have raised the possibility of forgoing review. When

counsel provide a capital defendant with appropriate

information and address the root causes of his

transitory impulse to waive, the defendant rarely

follows through.

In the few cases where a capital defendant does

appear before a court to attempt a waiver, capable

post-conviction counsel not only represent their

client’s interests, but also assist the court in making

an informed determination about their client’s

competency and the voluntariness of any proposed

waiver. Under no circumstance does a responsible

lawyer abandon his or her client.

Unlike counsel in the mine-run of capital postconviction cases, petitioner’s lawyers abandoned him

when he broached the possibility of ceasing all postconviction review. Their conduct deviated so

dramatically from the usual practice in such a

consequential setting that it established cause for the

ensuing procedural default.

ARGUMENT

State post-conviction review plays a particularly

important role in promoting the fair and accurate

administration of capital punishment. The high rate of

error in capital cases—with state courts reversing at

least 18 percent, and in some jurisdictions up to 90

percent, of capital sentences—underscores postconviction review’s critical role. Frank Baumgartner

et al., Deadly Justice 149-51 (2017). This is why almost

every state with capital punishment not only provides

for collateral review in capital cases but also provides

a statutory right to counsel in state post-conviction

proceedings.

Almost all individuals sentenced to death avail

themselves of post-conviction review. Nevertheless, at

some point along the way, individuals sentenced to

death often express an impulse to forgo those

proceedings. A key part of post-conviction counsel’s

responsibilities is to provide guidance and assistance

when their client broaches that possibility. In amici’s

experience, once a client receives guidance and

assistance, he seldom gets to the point where he

formally seeks to waive his right to post-conviction

review. But if there are formal judicial proceedings,

counsel cannot simply abdicate their role as their

client’s representative. A client who shows that his

waiver occurred in the face of such an abdication has

established cause for his procedural default under 28

U.S.C. § 2254(b).

The impulse to forgo post-conviction review is

common but transitory for capital defendants.

Most capital defendants at some point experience

an impulse to stop challenging their conviction and

sentence. See John H. Blume, Killing the Willing:

“Volunteers,” Suicide, and Competency, 103 Mich. L.

Rev. 939, 940 (2005). A variety of factors contribute to

that impulse. And that impulse typically comes and

goes. But in the end, almost all capital defendants do

pursue post-conviction review.

1. At least four factors may cause capital

defendants to temporarily voice a desire to forgo

further

review.

These

factors

include

misunderstanding the consequences of waiver, mental

health challenges, external situations over which a

client lacks control, and a client’s belief that his lawyer

has abandoned him.

First, capital defendants may not understand the

consequences of waiver. A legally unsophisticated

defendant may not understand that if he decides to

forgo the currently available state post-conviction

process, that decision is likely irrevocable and will

foreclose any further state or federal judicial review of

all his potential claims. Or a defendant might

misunderstand how long he has to decide whether to

pursue post-conviction review. A defendant who

decides to drop his appeals under these circumstances

cannot be said to have acted “intelligent[ly]”—the

requirement for a valid waiver, see Johnson v. Zerbst,

304 U.S. 458, 464-65 (1938).

Second, even when a capital defendant is told the

consequences of waiver, mental illness or cognitive

impairments may impel him to abandon his case.

Many defendants on death row are mentally ill.

While only four percent of the general population

suffers from severe mental illness, twenty-one percent

of people living on death row do. Am. Bar Ass’n Death

Penalty Due Process Rev. Project, Severe Mental

Illness and the Death Penalty 9, 16 (2016). Some of

that mental illness may itself be the product of the

restrictive confinement they experience on death row.

Cf. In re Medley, 134 U.S. 160, 168 (1890) (explaining

that incarcerated people became “insane” after “even

a short [solitary] confinement”). And whatever mental

challenges an individual had when he arrived on death

row are likely to be exacerbated by the conditions of

confinement. See Davis v. Ayala, 576 U.S. 257, 286-87

(2015) (Kennedy, J., concurring). Amici have observed

these rapid changes in many of our capital clients after

their sentencing, when they are completely alone with

their thoughts for the first time.

Sitting on death row in restrictive conditions of

confinement, mentally ill defendants may experience

panic, hallucinations, loss of impulse control, selfmutilation, feelings of guilt and worthlessness, and

suicidal thoughts and behaviors. See Stuart Grassian,

Psychiatric Effects of Solitary Confinement, 22 Wash.

U. J.L. & Pol’y 325, 329, 335-36, 349 (2006); see also

Meredith Martin Rountree, “I’ll Make Them Shoot

Me”: Accounts of Death Row Prisoners Advocating for

Execution, 46 Law & Soc’y Rev. 589, 600, 603 (2012).

This may leave a capital defendant incapable of

appreciating the consequences of waiver. Or it may

leave him untethered from reality altogether. Or it

may even lead him to forgo further proceedings as a

means of committing “suicide by waiver.”

The fact that mentally ill defendants often

vacillate about whether to forgo further review is a

powerful indication that mental illness is driving their

thought processes. This is borne out by the finding

that among the few defendants who ultimately carry

through with waiving post-conviction review, the vast

majority (78 percent) have a documented history of

mental illness or substance abuse. John H. Blume,

Volunteers with Mental Illness or Substance Abuse

Since 2005, at 2 (2022) (unpublished manuscript

available from the author).

Third, amici have represented clients whose

impulse to waive stems from issues unrelated to the

post-conviction review process itself. For example, a

client may feel an impulse to give up because of the

end of a relationship, ruptured family ties, violence or

harassment by prison guards or other inmates, the

isolation and loneliness of death row, or serious

physical health conditions. In our experience,

defendants who feel that they have no control over any

of the other aspects of their lives may take control in

the only way they know—by directing their lawyer to

stop challenging their conviction or sentence.

Finally, all too often, “a critical catalyst” to an

incarcerated person’s impulse to waive “is the fact that

a despairing client has lost contact with his attorney.”

Randy Hertz & James S. Liebman, Federal Habeas

Corpus Practice & Procedure § 4.2 (7th ed. 2023). For

a capital defendant on death row, his lawyer often

serves as his window to the outside world and one of

his few points of contact. Without that contact, an

individual may lose faith in the post-conviction process

altogether because he feels that nobody is fighting for

him.

Any one of these four factors might be enough to

prompt a defendant to float the possibility of

abandoning his case. But these factors typically act in

conjunction, further compounding the likelihood that

at some point a defendant will express this impulse. In

particular, when a mentally ill death row defendant

feels abandoned by his lawyer, he may be especially

prone to give up.

2. Even though many of our capital clients at some

point experience a transitory impulse to abandon their

claims, the vast majority ultimately decide to pursue

post-conviction relief. The literature has long

recognized this phenomenon. See, e.g., Blume, Killing

the Willing, supra, at 940; Richard W. Garnett,

Sectarian Reflections on Lawyers’ Ethics and Death

Row Volunteers, 77 Notre Dame L. Rev. 795, 801

(2002); Welsh S. White, Defendants Who Elect

Execution, 48 U. Pitt. L. Rev. 853, 855 (1987).

In amici’s experience, actual waiver of postconviction review at any stage is atypical. Outright

waiver of all post-conviction review at the very outset

of the process, as happened in petitioner’s case, is

almost unheard of. Only one amicus recalls a client

who ultimately waived further review. And that client

suffered from an inoperable brain tumor that caused

him tremendous, unrelenting pain. His situation

contrasts with the countless death-row clients who

ultimately chose to pursue the available avenues for

challenging their conviction and sentence. See Blume,

Killing the Willing, supra, at 940. As the next section

of this brief explains, those clients decided to proceed

with their claims. And they did so with ongoing

guidance and assistance from their lawyers.

II. Clients who receive guidance and assistance

from counsel almost never waive their right to

post-conviction review.

In amici’s experience, clients who broach the

possibility of abandoning further review in their

capital cases are most often responding to forces

unrelated to the strength of their claims—or even

their genuine desire to continue living. An attorney

who has his or her client’s best interests at heart—the

centerpiece of all lawyers’ ethical obligations—

therefore explores with a client whether forgoing postconviction review is actually in the client’s best

interest. See Model Rules of Professional Conduct

R. 1.3 cmt. 1 (Am. Bar Ass’n 2024) (ABA Model Rules);

Guidelines for the Appointment & Performance of

Defense Counsel in Death Penalty Cases 7.1 cmt. (Am.

Bar Ass’n 2003) (ABA Guidelines). Post-conviction

counsel typically fulfill this duty in at least three ways.

1. Counsel provide legal information to their client

to ensure he understands the finality and gravity of

waiving post-conviction review. As this Court has long

recognized, to make an informed decision, a client

must “be made aware of the dangers and

disadvantages” of waiving a right. Faretta v.

California, 422 U.S. 806, 835 (1975) (discussing the

right to waive counsel and proceed pro se); cf.

Padilla v. Kentucky, 559 U.S. 356, 371 (2010) (holding

that trial counsel are ineffective if they fail to inform

their client of the immigration consequences of a plea

deal). Professional standards likewise presuppose that

counsel will give their client information “necessary to

permit [him] to make informed decisions.” ABA Model

Rule 1.4(b).

It is especially important for counsel to provide

guidance where, as here, a client contemplates

waiving a right that is preservative of his other rights.

In particular, responsible counsel inform their

client of filing deadlines and make clear that if the

client does not meet those deadlines, he will be

foreclosed from obtaining further review of any of his

claims. See, e.g., ABA Guideline 10.5.C.6, 10.8.A.3.c;

Lisenbee v. City of Clarksville Gas & Water, 2013 WL

3070997, at *1 (M.D. Tenn. June 18, 2013); Lawyers

Disciplinary Bd. v. Palmer, 798 S.E.2d 610, 618-19 (W.

Va. 2017).

Notably, some clients may not be able to

understand or intelligently assess the gravity of

waiver due to mental illness or some other cognitive

deficit. In those cases, counsel inform the court that

the client may be incompetent. Indeed, because “such

a high percentage of death row inmates have serious

mental health problems,” issues related to competence

“color everything in terms of how [counsel] respond to

an expressed desire to waive appeals.” See C. Lee

Harrington, A Community Divided: Defense Attorneys

and the Ethics of Death Row Volunteering, 25 Law &

Soc. Inquiry 849, 867 (2000).

2. Even if counsel conclude that their client is

capable of understanding the consequences of waiver,

they still need to determine what has driven their

client’s impulse to waive.

Counsel who have been doing their job generally

understand why their client has floated the possibility

of forgoing further review because they have an

ongoing “relationship of trust” with him. See, e.g.,

Guidelines & Standards for Tex. Capital Counsel

12.2.B.2.a (State Bar of Tex. 2006) (Texas Guidelines).

Indeed, professional standards presume that postconviction counsel “maintain close contact with the

client” and “continually monitor the client’s mental,

physical and emotional condition.” ABA Guideline

10.15.1.E.1-2; id. 10.15.1. cmt.

If, however, counsel do not understand why their

client has raised the possibility of waiver, they probe

further. For instance, counsel may consult with their

client’s family or others who regularly interact with

him. Or counsel may seek expert evaluations of their

client. If an initial evaluation is inconclusive or

inconsistent with the other information counsel have,

then counsel often seek a second opinion. See John H.

Blume et al., Competent Capital Representation: The

Necessity of Knowing and Heeding What Jurors Tell

Us About Mitigation, 36 Hofstra L. Rev. 1035, 1040-41

(2008).

The same factors that lead the client to raise the

possibility of waiver may also lead the client to resist

this kind of investigation. But counsel who are focused

on their client’s best interests nonetheless pursue

these investigations. Cf. Porter v. McCollum, 558 U.S.

30, 40 (2009) (per curiam) (explaining that a client’s

“fatalistic or uncooperative” actions do not excuse

counsel from their duty to pursue a mitigation

investigation); Rompilla v. Beard, 545 U.S. 374, 381

(2005) (same for an “actively obstructive” client).

3. In most cases, counsel conclude that their

client’s abandonment of post-conviction review is the

product of forces having little or nothing to do with his

prospects for relief or his overall desire to continue

living. In such situations, counsel support their client

in addressing whatever issues have led to the impulse

to forgo review. That support can take a variety of

forms.

For example, counsel might help the client secure

medical treatment. One amicus had a client whose

desire to forgo further review was triggered by

excruciating back pain. Counsel helped connect the

client with a physician in the prison. After receiving

pain relief, the client decided to resume postconviction review.

In other cases, counsel might rectify issues their

client faces in prison. Amici have provided assistance

by speaking with prison administrators to resolve

conflicts between their clients and guards or other

individuals.

And sometimes, counsel might simply remind

their client that his life has worth. In this vein, amici

have helped arrange visits and communications with

their client’s family. And if a client’s sense of despair

or worthlessness stems from the fact that his prior

lawyers failed to maintain a relationship with him,

post-conviction lawyers reassure him that he now has

counsel committed to representing him vigorously.

Hertz & Liebman, supra, § 4.2.

In amici’s experience, when counsel inform their

client of the consequences of a possible waiver and

assist him by addressing the factors that impelled him

to raise that possibility, the client decides to continue

pursuing post-conviction review. As such, a client’s

decision to knowingly and intelligently waive postconviction review after receiving an attorney’s full

assistance is a once-in-a-career occurrence.

4. But in no case do diligent counsel “simply

acquiesce” to an initial expression of the wish to forgo

further review. ABA Guideline 10.5 cmt. To do so

would be a “dereliction of [post-conviction] counsel’s

duty.” Texas Guideline 12.2.B.2.c; see also id.

12.2.B.5.a. This is particularly true when the client

expresses a desire to waive all potential claims at his

first opportunity to seek post-conviction review:

Capital defendants who make a wholesale waiver at

this early stage essentially ask the state to execute

them straight away.

III. If a client’s competence becomes a question for

the court, counsel need to participate fully in

any judicial proceedings.

Because most capital defendants decide, after

consulting with counsel, to continue pursuing post-

conviction review, the issue of waiver rarely comes

before a court. But in the rare case that a defendant

insists on waiving, the court must determine whether

he is competent to make a knowing and intelligent

waiver. Counsel owe duties to both the court and their

client to ensure that this determination is made

properly.

1. States generally presume that capital

defendants will avail themselves of the state’s

procedures for seeking post-conviction relief.

Recognizing both the complexity and gravity of the

potential claims those defendants will raise, nearly

every state that imposes capital punishment also

provides capital defendants a statutory right to

counsel in that post-conviction review process. 2 Those

counsel are expected to “raise and preserve all

arguably meritorious issues,” understanding that

failure to do so may foreclose future review for their

client. ABA Guideline 10.15.1.C cmt. B. Indeed,

counsel’s failure to do so may lead the court to appoint

new counsel. E.g., Ex parte Medina, 361 S.W.3d 633,

642-43 (Tex. Crim. App. 2011); see also Tex. Code

Crim. Proc. Ann. art. 11.071 § 4A(b)(3) (West 2015).

Counsel who file a deficient petition deprive their

client of his “one full and fair opportunity to present

his constitutional or jurisdictional claims” on postconviction review. Ex parte Medina, 361 S.W.3d at 642

(citation omitted).

E.g., Tex. Code Crim. Proc. Ann. art. 11.071 § 2 (West

2015); see Sup. Ct. Ohio Task Force on Conviction Integrity &

Postconviction Rev., Report and Recommendations of the Task

Force on Conviction Integrity and Postconviction Review 4 (2022)

(finding that all death-penalty states but one provide a statutory

right to counsel).

Because wholesale waiver of state post-conviction

review is so atypical, several jurisdictions require a

hearing on the capital defendant’s competence before

he forgoes all further review, see, e.g., State v. Motts,

707 S.E.2d 804, 809 (S.C. 2011); cf. Mata v. Johnson,

210 F.3d 324, 331 (5th Cir. 2000) (federal courts). Even

absent this requirement, state courts often hold

hearings to consider evidence regarding the

defendant’s competence to waive. See, e.g., Cox v.

State, 327 So. 3d 100, 111, 115 (Miss. 2021); Roberts v.

State, 426 S.W.3d 372, 377 (Ark. 2013); Durocher v.

Singletary, 623 So. 2d 482, 485 (Fla. 1993).

2. At a hearing to determine a capital defendant’s

competence to waive post-conviction review, the court

relies on counsel to alert it to important information.

Counsel are uniquely positioned to inform the

court about their client’s mental condition. After all,

counsel have “the closest contact with the defendant.”

Drope v. Missouri, 420 U.S. 162, 177 n.13 (1975)

(citation omitted). Counsel can disclose past diagnoses

and mental health history. They can tell the court

about their client’s vacillation on waiver. And they can

describe behavior that sheds light on their client’s

capacity to make reasoned decisions. Indeed, as this

Court has recognized, counsel “often have the bestinformed view of [their client’s] ability to participate

in his defense,” which can “in and of itself, constitute

probative evidence of incompetence.” Medina v.

California, 505 U.S. 437, 450 (1992).

In assessing competence or considering questions

of waiver, amici with judicial experience have found

that other sources of information—such as a mental

health expert’s assessments or the judge’s own

observations—may provide incomplete signs of a

defendant’s condition. Expert assessments of an

individual’s competence reflect only a snapshot in

time. And a judge’s observations are confined within

the four walls of the courtroom. Thus, these sources of

information may not capture critical changes in the

defendant’s mental condition, particularly when a

defendant has been vacillating on the issue of waiver.

Counsel help fill these gaps and “bring [competence]

issues into focus.” Drope, 420 U.S. at 176-77.

Counsel who harbor any doubts about their

client’s competence normally inform the court of those

doubts. One amicus who informed a court of his

concerns that a client was not competent to waive postconviction review did so in a case where the client had

thirty years of documented mental health problems,

repeatedly went on hunger strike, and (like petitioner)

engaged in self-harm. Mata, 210 F.3d at 331; Pet. App.

301a, 670a. Counsel’s role as “officers of the court”

requires candor about these types of concerns. See

Crim. Justice Standards for Defense Function 4-1.2(b),

4-1.3(c) (Am. Bar Ass’n 2017) (ABA Defense

Standards); ABA Model Rule 3.3 cmt. 2. The court

must make an informed finding about the defendant’s

competence to waive, and responsible counsel support

this finding by providing critical information.

3. At a competency hearing, counsel advise their

client and safeguard his best interests. See ABA

Defense Standard 4-1.2(b); see also id. 4-4.6. Counsel

do so in two key ways.

First, counsel ensure that their client receives

accurate information. If the court misinforms a

defendant—for instance, about his ability to later

change his mind or about the finality of waiver—

counsel must correct that misinformation or else the

waiver is not truly intelligent. Cf. Belcher v. State, 93

S.W.3d 593, 596-97 (Tex. Crim. App. 2002) (explaining

that a lawyer breached her duty to her client by

remaining silent when the court repeatedly misstated

the deadline to file a motion for a new trial); ABA

Defense Standard 4-9.5(b) (noting that “appellate

counsel should explain” to their client “any timing

deadlines that apply” to collateral proceedings).

Second, counsel advance their client’s interests by

ensuring his competence is accurately determined by

the court. See ABA Model Rule 1.3; ABA Defense

Standard 4-5.2. This may require them to dispute

their client’s competence to waive. In amici’s

experience, counsel who have investigated their

client’s situation generally harbor some doubt about

whether a client is competent to knowingly and

intelligently waive post-conviction review. Counsel

owe a duty to their client to express that doubt to the

court and guard against a finding that their client is

competent if he is not. See Comer v. Stewart, 215 F.3d

910, 914 & n.2 (9th Cir. 2000). This is especially so

because an inaccurate determination by the court that

the client is competent will permanently deprive him

of his right to review.

If counsel determine that their client is

undoubtedly competent and nevertheless wishes to

waive further proceedings—an occurrence most amici

have never encountered—counsel have two options.

First, counsel could assist a client in effectuating a

waiver. See, e.g., Harrington, supra, at 865. Second,

counsel could withdraw and allow the court to appoint

new counsel.

In no case, however, may counsel let the question

competency be determined without their

investigation or participation. A lawyer’s failure to

advocate constitutes a constructive denial of counsel.

See Appel v. Horn, 250 F.3d 203, 215-17 (3d Cir. 2001)

(hearing to determine competence to waive right to

counsel); United States v. Collins, 430 F.3d 1260,

1265-66 (10th Cir. 2005) (hearing to determine

competence to stand trial). A lawyer’s failure to

withdraw is even worse: It leaves both the court and

the client with the false impression that the client is

receiving the representation the law requires. And

beyond that, it effects sub rosa an additional waiver—

this time of the client’s right to counsel—with no

determination whatsoever that this second waiver is

valid.

IV. Petitioner’s case presents the Court with the

right opportunity to clarify what, in this

setting, constitutes cause for procedural

default.

This case is the right vehicle to address how

counsel’s inaction in the face of a client’s impulse to

waive post-conviction review can create cause that

excuses procedural default under 28 U.S.C. § 2254(b).

Like the individuals described in Part I of this brief,

petitioner Tabler experienced a transitory impulse to

waive post-conviction review that he soon renounced.

But unlike the attorneys discussed in Parts II and III

of this brief, petitioner’s post-conviction counsel failed

him utterly, thereby causing his default.

1. Petitioner experienced all of the extrinsic

factors that lead capital defendants to express an

impulse to waive post-conviction review.

First, petitioner misunderstood how long he had

to decide whether to pursue post-conviction review––a

misunderstanding created initially by his lawyers and

then compounded by the judge who accepted his

waiver. Pet. App. 297a, 226a.

Second, petitioner has a long, documented history

of mental illness. He suffers from two congenital birth

defects that impair his brain function, as well as

bipolar disorder and borderline personality disorder.

Pet. App. 256a-57a. These illnesses contributed to

petitioner’s erratic and self-harming behavior in the

months preceding his waiver. Id. 301a.

Third, petitioner was experiencing severe

isolation and loneliness when he raised the possibility

of forgoing further review because he was unable to

get in contact with his sister and mother. Pet. App.

297a n.10.

Finally, petitioner’s attorneys exacerbated his

loneliness by failing to maintain meaningful contact

with him. See, e.g., Pet. App. 284a-88a.

2. Petitioner’s lawyers failed to help him

determine whether forgoing post-conviction review

was in his best interest.

First, petitioner’s lawyers misinformed him about

the legal consequences of abandoning his right to postconviction review by telling him that “[n]othing,

literally nothing, [would] happen” until after his direct

appeal was litigated. Pet. App. 297a; see also, e.g., id.

302a-03a, 307a. In reality, petitioner had only fortyfive days after the State filed its brief with the Court

of Criminal Appeals to initiate his post-conviction

review. Tex. Code Crim. Proc. Ann. art. 11.071 § 4(a)

(West 2015).

Second, petitioner’s lawyers never established the

relationship with him that would have enabled them

to properly assess his competence and needs. After

visiting petitioner once in June 2007, they rarely

communicated with petitioner and never again saw

him in person until his competency hearing fifteen

months later. Pet. App. 284a-88a. They also failed to

get

a second opinion on the conflicting

neuropsychological assessments of petitioner they

received. Id. 297a, 300a. Moreover, they failed to seek

further information regarding petitioner’s mental

state by speaking with people who knew him well. See,

e.g., id. 288a-98a.

Third, petitioner’s lawyers never addressed the

reasons underlying his impulse to forgo postconviction review. This inaction came despite the

psychiatric report and numerous letters from

petitioner detailing his suicidal ideation and

loneliness, deteriorating mental health, and

vacillation about waiving. E.g., Pet. App. 286a-88a,

292a-93a, 297a. Instead, petitioner’s lawyers simply

acquiesced to his impulse to waive further review,

failing to advise him while he made a life-ending

decision. See id. 286a.

3. Finally, petitioner’s lawyers abdicated their

role as his counsel at his competency hearing. They

declared themselves “present” but not “ready,” Pet.

App. 224a, then stood by silently while the court

misinformed petitioner of the deadline after which he

could no longer pursue post-conviction review. Id.

540a. And they withheld information that cast doubt

on petitioner’s competency. This information included

not only letters documenting his vacillation and

suicidal ideation, but also a seventeen-page

neuropsychological

evaluation

detailing

his

“constellation of mental illnesses.” Id. 292a-93a, 286a-

88a, 300a, 553a-54a. Worse still, petitioner’s lawyers

submitted, ostensibly as an exhibit of the court, a

misleading two-page evaluation that found petitioner

was “forensically competent” to waive his direct

appeal. Id. 297a, 232a-33a, 302a. 3

Worst of all, petitioner’s lawyers refused to take

any position on petitioner’s competency to waive. Pet.

App. 224a, 302a, 540a. Rather than provide

information to the court on his behalf or withdraw and

ask the court to appoint new counsel, they left

petitioner to represent himself on the issue of his

competence. And they allowed the court to find him

competent based on his own completely subjective

sense that he was “competent enough.” Id. 232a.

***

Both capital defendants and courts depend on

post-conviction counsel to ensure that a defendant

understands the importance of state post-conviction

review—especially because forgoing such review

usually means that “no state [or federal] court will

ever review” the defendant’s claims, however

meritorious. E.g., Davila v. Davis, 582 U.S. 521, 532

(2017). Post-conviction counsel must safeguard their

capital client’s best interests at this crucial stage in his

proceedings and accurately represent those interests

to the court. If they cannot, they must withdraw.

Accordingly, post-conviction counsel who fail to advise

and represent their capital clients in this setting

In any event, capital defendants in Texas cannot waive

their direct appeals. See, e.g., David R. Dow & Jeffrey R.

Newberry, Reversal Rates in Capital Cases in Texas, 2000-2020,

UCLA L. Rev. Discourse, Apr. 2020, at 2, 10; Falk v. State, 2018

WL 3570596, at *1, n.2 (Tex. Crim. App. July 25, 2018).

undermine the integrity of the capital punishment

system.

This Court should grant the petition for writ of

certiorari to clarify that a capital defendant can

establish cause for procedural default under 28 U.S.C.

§ 2254(b) by showing that his counsel abdicated their

responsibility to assist him in making the decision to

forgo post-conviction review in state court.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

Respectfully submitted,