Reply Brief — Louis Angel Mercado, Petitioner v. Ricky D. Dixon, Secretary, Florida Department of Corrections, et al.

No. 24-6676

IN THE

Supreme Court of the United States

LOUIS ANGEL MERCADO,

v.

Petitioner,

RICKY D. DIXON, Secretary, Florida Department of

Corrections, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Eleventh Circuit

REPLY BRIEF FOR PETITIONER

JESSE LEMPEL

GOODWIN PROCTER LLP

100 Northern Avenue

Boston, MA 02210

JAIME A. SANTOS

Counsel of Record

WILLIAM M. JAY

GOODWIN PROCTER LLP

1900 N Street, NW

Washington, DC 20036

(202) 346-4000

jsantos@goodwinlaw.com

May 27, 2025

Counsel for Petitioner

TABLE OF CONTENTS

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

ARGUMENT ............................................................... 3

I.

The decision below conflicts with the

holdings of the Sixth and Seventh

Circuits, and this Court’s precedents. ........... 3

II. The question presented is important

and recurring, and respondents’ vehicle

arguments are unpersuasive. ......................... 9

CONCLUSION ......................................................... 12

i

TABLE OF AUTHORITIES

Cases:

Ahumada v. United States,

994 F.3d 958 (8th Cir. 2021)..................................... 11

Andrew v. White,

145 S. Ct. 75 (2025) ......................................... 2, 3, 6, 7

Austin v. United States,

513 U.S. 5 (1994) ....................................................... 11

Commonwealth v. Goewey,

452 Mass. 399 (2008) .............................................. 2, 5

Fields v. Bagley,

275 F.3d 478 (6th Cir. 2001)............................... 2, 4, 5

Garza v. Idaho,

139 S. Ct. 738 (2019) ................................................. 12

Marshall v. Rodgers,

569 U.S. 58 (2013) ....................................................... 6

Ohio v. Robinette,

519 U.S. 33 (1996) ....................................................... 9

Penson v. Ohio,

488 U.S. 75 (1988) ......................... 1, 2, 3, 4, 6, 7, 8, 11

State v. Coney,

393 So.3d 276 (Fla. 4th Dist. Ct. App. 2024) ............. 9

State v. Lugo-Perez,

104 So.3d 1285 (Fla. 2d Dist. Ct. App. 2013) ............ 9

State v. Patsas,

60 So.3d 1152 (Fla. 5th Dist. Ct. App. 2011) ............. 9

Strickland v. Washington,

466 U.S. 668 (1984) ..................................................... 3

ii

U.S. ex rel. Thomas v. O’Leary,

856 F.2d 1011 (7th Cir. 1988)............................. 2, 4, 5

United States v. Cronic,

466 U.S. 648 (1984) ................................... 1, 3, 6, 8, 11

Other Authorities:

Fla. R. App. P. 9.330(a)(1)(2)(A) .................................. 11

iii

1

INTRODUCTION

“Louis Mercado fell through the cracks in Florida’s

criminal justice system.” Pet. App. 17a (Jill Pryor, J.,

concurring). The trial judge found that the State intentionally provoked a mistrial and that double jeopardy barred the State from retrying Mercado. The

State appealed, and Mercado could not afford appellate counsel. His lawyer attempted to withdraw but

did so in the wrong court and was “unaware … that he

remained counsel” on appeal. Pet. App. 4a. No public

defender was appointed, no answering brief was filed,

and no oral argument occurred. The appellate court

noted “No Appearance for Appellee” and summarily

reversed the double-jeopardy ruling. Pet. App. 19a.

As a result, Mercado was retried, convicted, and sentenced to life in prison.

Mercado was deprived of his right to counsel altogether on appeal. “[T]he only question” in this habeas

action is whether a criminal defendant is entitled to a

presumption of prejudice “under Cronic … when his

counsel fails to file an appellee’s brief in response to

the State’s appeal.” Pet. App. 9a.

The answer is yes. United States v. Cronic made

clear, based on a “uniform[]” line of this Court’s cases,

that prejudice is presumed when a criminal defendant

is altogether denied counsel at “a critical stage of the

proceeding.” 466 U.S. 648, 659 n.25 (1984). Appeals

are a critical stage; Cronic’s “presumption of prejudice” applies “to the denial of counsel on appeal.” Penson v. Ohio, 488 U.S. 75, 88 (1988).

The Sixth and Seventh Circuits have applied these

holdings and granted habeas relief to defendants like

Mercado—those denied counsel as appellees—based

2

on Cronic’s presumption of prejudice. This Court even

cited the relevant Seventh Circuit opinion in Penson.

See U.S. ex rel. Thomas v. O’Leary, 856 F.2d 1011,

1018 (7th Cir. 1988) (cited in Penson, 488 U.S. at 89

n.10); Fields v. Bagley, 275 F.3d 478, 485 (6th Cir.

2001). Massachusetts’s high court has followed suit.

Commonwealth v. Goewey, 452 Mass. 399, 405 (2008).

The court below acknowledged the holdings of the

Sixth and Seventh Circuits, but it felt constrained by

AEDPA to limit Penson to its facts—appeals brought

by defendants-appellants, not defended by defendants-appellees. That was error and demonstrates confusion among the circuits regarding the role of

AEDPA in interpreting this Court’s precedents. As

this Court has explained (most recently this Term), a

“holding” under AEDPA is not limited to a case’s facts.

Andrew v. White, 145 S. Ct. 75, 82 (2025). Andrew also

makes clear that federal courts must “independent[ly]” identify the scope of this Court’s holdings—

that is not a matter on which deference is owed to

state courts under AEDPA. Id. at 82-83. Properly

understood, Penson held that an appeal is a critical

stage of the prosecution; Cronic’s presumption of prejudice applies to deprivation of counsel at that stage.

That holding does not discriminate based on whether

the defendant won or lost below.

The Eleventh Circuit also distinguished Penson on

the ground that, after the adverse appellate decision

issued, new counsel was appointed to (unsuccessfully)

seek rehearing. Judge Jill Pryor correctly rejected

that reasoning, as have other courts. Cronic and Penson ask only whether counsel was absent during a

“critical stage.” The State cannot undo that error by

providing counsel for a later stage—one that is

3

discretionary and comes after the critical opportunity

for appellate advocacy has already passed.

If Mercado had been convicted in Ohio, Illinois, or

Massachusetts, he would have been granted a new appeal. But because he was convicted in Florida, he was

denied habeas relief. This Court should grant certiorari to resolve the conflict over Penson’s scope and the

continued confusion over the role of federal courts in

identifying clearly established Federal law. If the

Court does not grant plenary review, it should summarily reverse—as in Andrew—or GVR in light of Andrew, which issued after the decision below.

ARGUMENT

I. The decision below conflicts with holdings of

the Sixth and Seventh Circuits, and with this

Court’s precedents.

A criminal defendant claiming ineffective assistance of counsel ordinarily must show prejudice.

Strickland v. Washington, 466 U.S. 668, 693 (1984).

But sometimes “prejudice is presumed.” Id. at 692. In

Cronic, this Court held that prejudice is presumed

“when counsel was either totally absent, or prevented

from assisting the accused during a critical stage of

the proceeding.” 466 U.S. at 659 & n.25. The Court

later held that Cronic’s “presumption of prejudice” applies equally “to the denial of counsel on appeal.” Penson, 488 U.S. at 88.

In this case, “the only question before” the Eleventh Circuit was whether a defendant-appellee is

“presumptively prejudiced under Cronic … when his

counsel fails to file an appellee’s brief in response to

the State’s appeal.” Pet. App. 9a. Respondents do not

dispute that the Eleventh Circuit’s answer to that

4

question conflicts with holdings of the Sixth and Seventh Circuits. Nor could they—the Eleventh Circuit

conceded the split. Pet. App. 15a.

Indeed, the relevant Seventh Circuit decision informed this Court’s decision in Penson. In U.S. ex rel.

Thomas v. O’Leary, 856 F.2d 1011, 1015 (1988), the

Seventh Circuit applied Cronic’s presumption of prejudice in granting habeas relief to a criminal defendant

whose attorneys “fail[ed] to file a brief on his behalf on

the State’s … appeal” from a trial-court decision suppressing critical evidence. When this Court ultimately held that Cronic’s presumption of prejudice

applies when a criminal defendant is denied counsel

on appeal, rather than at trial, it cited Thomas approvingly as “reach[ing] a like conclusion when faced

with similar denials of appellate counsel.” Penson,

488 U.S. at 88 n.10.

The Sixth Circuit reached the same conclusion in

Fields v. Bagley, 275 F.3d 478 (2001). As in Thomas,

the state trial court had suppressed key evidence

against a criminal defendant (Fields), and the State

appealed. In facts strikingly similar to this case,

Field’s counsel “no longer believed he represented

Fields,” so no one “filed a brief on the merits” in response to the State’s. Id. at 481. Only after the appellate court reversed did Fields obtain counsel (a public

defender), who “filed a motion for reconsideration …

because Fields was not represented by counsel on appeal.” Id. That motion was denied and Fields was

convicted. Id. at 481-482. He subsequently filed a habeas petition claiming ineffective assistance of counsel, which a federal district court granted, and the

Sixth Circuit affirmed. Citing Cronic and Thomas,

the court reasoned that “Fields was not able to present

5

any argument to advocate for affirmation of the suppression order, which, by itself, is enough to show

prejudice.” Id. at 485.

The Massachusetts Supreme Judicial Court

reached the same conclusion, citing Cronic, Penson,

Thomas, and Fields, in a case in which a defendantappellee’s counsel likewise did not file a merits brief.

See Commonwealth v. Goewey, 452 Mass. 399, 403 &

n.3, 405 (2008). As in Fields and in this case, new

counsel was appointed for the defendant-appellee

(and filed a petition for rehearing) only after Massachusetts won its appeal; that was not sufficient to cure

the presumed prejudice. Id. at 401.

Here, the Eleventh Circuit acknowledged that it

created a circuit conflict in reading Cronic and Penson

as limited to an appellant’s right to counsel rather

than an appellee’s. See Pet. App. 15a-16a. Yet respondents argue, and the Eleventh Circuit believed,

that AEDPA required that outcome—that because

Penson involved a defendant-appellant and Mercado

was a defendant-appellee, the Eleventh Circuit was

required to defer to the state courts’ theoretical conclusion that Penson was inapplicable. Opp. 9; Pet.

App. 12a-16a.1

That argument in no way refutes the split. The

Sixth Circuit’s Fields decision also post-dated

AEDPA. If Mercado’s habeas petition had arisen in

the Sixth Circuit, it would have been granted and

Mercado would have been entitled to a new appeal

1 No state court issued a reasoned decision on this issue, thus the

Eleventh Circuit hypothesized reasoning that might have animated the state courts’ summary denials of relief. Pet. App. 5a6a, 8a.

6

over the double jeopardy issue. See Marshall v. Rodgers, 569 U.S. 58, 64 (2013) (“an appellate panel may …

look to circuit precedent to ascertain whether it has

already held that the particular point in issue is

clearly established by Supreme Court precedent”).

But because Mercado’s habeas petition was filed

within the Eleventh Circuit, it was denied—and he

was ultimately retried and sentenced to life in prison

without any appellate court examining the double

jeopardy ruling through “meaningful adversarial testing,” as the Sixth Amendment requires. Cronic, 466

U.S. at 656; Penson, 488 U.S. at 85 (“The need for

forceful advocacy does not come to an abrupt halt as

the legal proceeding moves from the trial to appellate

stage.”).

In any event, the Eleventh Circuit’s reasoning is

irreconcilable with this Court’s precedents about the

role of federal courts considering habeas petitions under AEDPA—in two different, but equally problematic, ways. First, this Court has made clear that determining the scope of this Court’s holdings is not subject to AEDPA deference—instead, federal courts

have an “independent obligation” to “identify the relevant ‘clearly established Federal law,’” rather than

deferring to state courts’ identification of it. Andrew,

145 S. Ct. at 82.

Second, respondents and the Eleventh Circuit misunderstand the “independent obligation” that federal

courts are tasked with. Respondents contend that

Mercado’s deprivation of counsel could not have been

contrary to (or an unreasonable application of) clearly

established Federal law because the “factual circumstance [here] was not before this Court” in Penson.

Opp. 9. The Eleventh Circuit likewise focused on

7

factual distinctions: “[B]ecause the Supreme Court

did not face that circumstance”— an appellee denied

counsel—“in Penson, it did not hold that the same failure would result in a presumption of prejudice.” Pet.

App. 13a. But a holding of this Court is clearly established Federal law under AEPDA even in cases where

the facts are not identical. Indeed, Andrew was unequivocal on that point: “To the extent that the Court

of Appeals thought itself constrained by AEDPA to

limit Payne to its facts, it was mistaken.” Andrew, 145

S. Ct. at 82. Even “[g]eneral legal principles can constitute clearly established law for purposes of AEDPA

so long as they are holdings of this Court.” Id. And

Andrew set forth a clear test to identify this Court’s

holdings: “When this Court relies on a legal rule or

principle to decide a case, that principle is a ‘holding’

of the Court for purposes of AEDPA.” Id. at 81.

Looking beyond Penson’s facts to its holding, the

impact of the Eleventh Circuit’s misunderstanding is

clear. The court below recognized that Penson “held”

that the absence of appellate counsel “was presumptively prejudicial under Cronic because the denial of

counsel had left [the criminal defendant] ‘completely

without representation during the appellate court’s

actual decisional process.’” Pet. App. 11a (quoting

Penson, 488 U.S. at 88). That characterization is

firmly grounded in the language this Court used in

Penson: “Because the fundamental importance of the

assistance of counsel does not cease as the prosecutorial process moves from the trial to the appellate

stage,” Penson held, “the presumption of prejudice

must extend as well to the denial of counsel on appeal.” 488 U.S. at 88 (emphases added); see id. (prejudice presumed when a defendant was “entirely without the assistance of counsel on appeal” (emphasis

8

added)). The rule—and thus the holding—of Penson

is that appeal is a critical stage of a criminal prosecution to which Cronic’s presumption of prejudice applies; it does not differentiate between the two sides of

the “v.”

Penson’s reasoning only underscores the point.

The Court’s analysis focused on “the fundamental importance of the assistance of counsel” at “the appellate

stage.” 488 U.S. at 88. The Court explained that an

appeal is a “stage[] of the prosecution” that, “although

perhaps involving unique legal skills, require[s] careful advocacy to ensure that rights are not forgone and

that substantial legal and factual arguments are not

inadvertently passed over.” Id. at 85. Such a proceeding demands “an adversary examination and presentation of the issues.” Id. Penson’s rationale thus

turned on the nature of appellate proceedings—not on

which party filed the appeal.

The Eleventh Circuit’s appellant/appellee distinction is contrary to Cronic’s holding, too. The test under Cronic focuses on the “stage of the proceeding.”

466 U.S. at 659 & n.25 (emphasis added). The relevant question, then, is whether the appellate stage is

a critical one to which the presumption of prejudice

applies. Once Penson held that it is, imposing a superficial factual distinction between appellants and

appellees flouts the inquiry Cronic demands. And using that distinction to deny habeas relief cannot be

squared with Andrew’s directive that federal courts

independently identify clearly established Federal

law by focusing on this Court’s holdings, not the facts

under which those holdings arise.

The decision below therefore not only creates a circuit conflict, it also demonstrates continued confusion

9

about federal courts’ responsibility to determine the

scope of clearly established Federal law under

AEDPA.2 This Court should grant certiorari.

II. The question presented is important and

recurring,

and

respondents’

vehicle

arguments are unpersuasive.

Respondents do not dispute that the question presented is important and recurring. Nor could it—in

Florida alone, courts regularly decide criminal appeals where the defendant-appellee lacks counsel.

The State’s brief cites several examples, Opp. 11 n.1,

and other instances in which courts have reversed

while noting “No Appearance for Appellee” are readily

apparent. E.g., State v. Coney, 393 So.3d 276 (Fla. 4th

Dist. Ct. App. 2024); State v. Lugo-Perez, 104 So.3d

1285 (Fla. 2d Dist. Ct. App. 2013); State v. Patsas, 60

So.3d 1152 (Fla. 5th Dist. Ct. App. 2011).

Respondents instead raise a variety of vehicle arguments, but none holds water. Respondents contend

because this case merely involved the application of

“the correct governing legal principle” to the facts of

this case, it provides no opportunity to consider the

scope of Cronic and Penson. Opp. 9 (citation omitted).

That is simply incorrect: as explained above, the Eleventh Circuit erred and departed from its sister circuits

in identifying “the correct governing legal principle”

by examining the scope of this Court’s holdings. With

clearly established Federal law correctly identified—

Penson’s holding that a criminal defendant unrepresented on appeal is entitled to Cronic’s presumption

2 The AEDPA framework “is a ‘predicate to an intelligent resolu-

tion’ of the question presented, and therefore ‘fairly included

therein.’” Ohio v. Robinette, 519 U.S. 33, 38 (1996).

10

of prejudice—there can be no question that the state

courts’ denials of habeas relief were contrary to that

holding. The scope of Cronic and Penson is therefore

squarely presented.

Next, respondents offer reasons why it might make

sense for this Court to narrow Penson’s holding to

criminal-defendant-initiated appeals. Opp. 10-12.

Those are arguments for the merits stage, not reasons

to deny certiorari. Regardless, they are meritless.

First, respondents argue (and the Eleventh Circuit

likewise reasoned) that defendants-appellees have a

“lesser liberty interest” than defendants-appellants

because the State “has the burden” in a State-initiated

appeal, and the defendant-appellee has none. Opp.

10; Pet. App. 13a. That is baffling. The State has the

burden in trial court, too, yet deprivation of counsel

there is presumed prejudicial (as in Cronic). Appeals

are no different. Mercado’s appointed trial counsel

won a double-jeopardy ruling in his favor. Had Mercado been able to defend that ruling on appeal, he

could not have been retried and would be a free man.

But because he lost that appeal, he was retried, convicted, and sentenced to life in prison. Liberty interests don’t get much greater than that. This argument

provides no basis to narrow Penson’s unqualified holding.

Second, respondents argue that Mercado “availed

himself to mechanisms for rehearing.” Opp. 11 (citations omitted). A majority of the Eleventh Circuit

panel likewise reasoned that Mercado was represented on appeal because he obtained counsel at rehearing, “after the appellate court issued its decision.”

Pet. App. 12a (emphasis added). That just crystallizes

the split: the Sixth Circuit and Massachusetts SJC

11

have dismissed the relevance of such facts, supra pp.

4-5. Judge Jill Pryor likewise “disagree[d] with the

majority” on this point, Pet. App. 26a—for good reason. The question is whether Mercado was denied

counsel at a “critical stage.” Cronic, 466 U.S. at 659.

Penson expressly defined the relevant “critical stage”:

when “the Court of Appeals first considered the merits” of the appeal. 488 U.S. at 88. That stage is distinct from subsequent rehearing, when litigants are

forbidden from raising “issues not previously raised in

the proceeding,” Fla. R. App. P. 9.330(a)(1)(2)(A), relief is discretionary, and no right to counsel even attaches. See Austin v. United States, 513 U.S. 5, 8

(1994); Ahumada v. United States, 994 F.3d 958, 960961 (8th Cir. 2021).

Accordingly, that Mercado was newly appointed

counsel after the State won its appeal is irrelevant.

He had already been deprived counsel at a critical

stage, the constitutional violation was complete, and

it was too late for appointed counsel to help him.

Third, respondents point out that the State “still

had to prove Mercado’s guilt beyond a reasonable

doubt at retrial.” Opp. 10-11. But the jury on retrial

did not consider the question on which the State won

its appeal—whether the Double Jeopardy Clause forbade Mercado from being retried because the State intentionally provoked a mistrial. Cronic’s presumption

of prejudice applies to the resolution of that issue in

that appeal. Moreover, the State cannot rest on the

verdict at the retrial when the question is whether

that retrial was itself unconstitutional. The retrial

verdict says nothing about whether Mercado was prejudiced by the denial of counsel at the State-initiated

appeal. Even if Mercado’s appeal overlapped with

12

issues before the jury, the constitutional violation

from being completely deprived of a right to counsel

on appeal does not turn on the merits of that appeal.

Cf. Garza v. Idaho, 139 S. Ct. 738, 747, 749 (2019).

CONCLUSION

This Court should grant certiorari. If this Court

does not grant plenary review, it should summarily

reverse—as in Andrew—or GVR in light of Andrew.

Respectfully submitted.

JESSE LEMPEL

GOODWIN PROCTER LLP

100 Northern Avenue

Boston, MA 02210

JAIME A. SANTOS

Counsel of Record

WILLIAM M. JAY

GOODWIN PROCTER LLP

1900 N Street, NW

Washington, DC 20036

(202) 346-4000

jsantos@goodwinlaw.com

May 27, 2025

Counsel for Petitioner