Amicus Curiae Brief — Alan Lane Hicks, Petitioner v. Jonathan Frame, Superintendent, Mount Olive Correctional Complex

No. 25-726

IN THE

Supreme Court of the United States

_____________

ALAN LANE HICKS,

v.

Petitioner,

JONATHAN FRAME, SUPERINTENDENT,

MOUNT OLIVE CORRECTIONAL COMPLEX,

Respondent.

_____________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

_____________

BRIEF OF THE INNOCENCE NETWORK AND

THE MIDWEST INNOCENCE PROJECT AS

AMICI CURIAE IN SUPPORT OF PETITIONER

_____________

RICHARD FINNERAN

BRYAN CAVE LEIGHTON

PAISNER LLP

211 N. Broadway,

Suite 3600

St. Louis, MO 63102

ARTI SAHAJPAL

BRYAN CAVE LEIGHTON

PAISNER LLP

161 N. Clark St.,

Suite 4300

Chicago, IL 60601

MATTHEW J. STANFORD*

MARK A. ERCOLANO

BRYAN CAVE LEIGHTON

PAISNER LLP

2 N. Central Ave.,

Suite 2100

Phoenix, AZ 85004

(602) 364-7000

matt.stanford@bclplaw.com

Counsel for Amici Curiae

February 6, 2026

*Counsel of Record

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS.............................................. i

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

INTEREST OF THE AMICI CURIAE ....................... 1

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

ARGUMENT ............................................................... 2

I.

Historical Context of Habeas Corpus and

Exhaustion. ......................................................... 2

A.

Anglo–American Roots. .............................. 2

B.

Early Treatment in the United States....... 3

C.

The Codification of Exhaustion. ................. 5

II. Delay Renders State Processes Ineffective

to Protect Individual Rights. .............................. 9

III. Past, Present, and Future Delays Evidence

Circumstances

that

Establish

an

Ineffective State Process and Pose a

Nationwide

Concern

to

Innocent

Individuals. ....................................................... 14

CONCLUSION ......................................................... 23

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Abercrombie v. Clarke,

920 F.2d 1351 (7th Cir. 1990) ............................... 23

Ableman v. Booth,

62 U.S. (21 How.) 506 (1858) .................................. 3

Boumediene v. Bush,

553 U.S. 723 (2008) ............................................... 12

Brown v. United States,

602 U.S. 101 (2024) ............................................... 23

Carr v. United States,

560 U.S. 438 (2010) ......................................... 20, 21

Carter v. Buesgen,

10 F.4th 715 (7th Cir. 2021) ................................. 17

Coal. for Clean Air v. S. Cal. Edison Co.,

971 F.2d 219 (9th Cir. 1992) ................................. 23

Coe v. Thurman,

922 F.2d 528 (9th Cir. 1990) ................................. 17

Consumer Prod. Safety Comm’n v.

GTE Sylvania, Inc.,

447 U.S. 102 (1980) ............................................... 20

Cook v. Hart,

146 U.S. 183 (1892) ................................................. 6

Dickey v. Florida,

398 U.S. 30 (1970) ................................................. 14

Doggett v. United States,

505 U.S. 647 (1992) ............................................... 13

iii

Evans v. Wills,

66 F.4th 681 (7th Cir. 2023) ............... 16, 18, 19, 22

Ex Parte Dorr,

44 U.S. (3 How.) 103 (1845) .................................... 3

Ex Parte Hawk,

321 U.S. 114 (1944) ....................................... 5, 7, 22

Ex Parte Royall,

117 U.S. 241 (1886) ................................................. 6

Ex Parte Yerger,

75 U.S. (8 Wall.) 85 (1868) ...................................... 2

Fay v. Noia,

372 U.S. 391 (1963) ................................................. 7

Frank v. Mangum,

237 U.S. 309 (1915) ................................. 4, 7, 12, 21

Frisbie v. Collins,

342 U.S. 519 (1952) ................................................. 7

Hamdi v. Rumsfeld,

542 U.S. 507 (2004) ............................................... 13

Harris v. Champion,

938 F.2d 1062 (10th Cir. 1991) ................. 16, 17, 21

Hicks v. Frame,

145 F.4th 408 (4th Cir. 2025) ....9, 10, 11, 15, 18, 21

Johnson v. Roberts,

1996 WL 405773 (5th Cir. Jul. 1, 1996) ............... 17

Kimmelman v. Morrison,

477 U.S. 365 (1986) ................................................. 4

Lee v. Stickman,

357 F.3d 338 (3d Cir. 2004) .................................. 16

iv

Lindsey v. Neal,

138 F.4th 1039 (7th Cir. 2025) .................. 16-19, 22

Mathis v. Hood,

851 F.2d 612 (2d Cir. 1988) .................................. 17

McNally v. Hill,

293 U.S. 131 (1934) ................................................. 3

Minnesota v. Brundage,

180 U.S. 499 (1901) ................................................. 6

Morton v. Dir. Virgin Islands Bureau of Corr.,

110 F.4th 595 (3d Cir. 2024) ................................. 17

O’Sullivan v. Boerckel,

526 U.S. 838 (1999) ............................................... 11

Plymail v. Mirandy,

671 F. App’x 869 (4th Cir. 2016) ............... 17, 18, 19

Pope v. Taylor,

100 F.4th 918 (7th Cir. 2024) ............................... 18

Preiser v. Rodriguez,

411 U.S. 475 (1973) ................................................. 4

Stone v. Powell,

428 U.S. 465 (1976) ............................................. 4, 5

Turner v. Bagley,

401 F.3d 718 (6th Cir. 2005) ........................... 15, 16

U.S. v. Hayman,

342 U.S. 205 (1952) ................................................. 5

United States v. Brown,

381 U.S. 437 (1965) ................................................. 4

United States v. MacDonald,

435 U.S. 850 (1978) ............................................... 13

v

United States v. Marion,

404 U.S. 307 (1971) ............................................... 13

United States v. Nat’l City Lines, Inc.,

337 U.S. 78 (1949) ................................................... 5

United States v. Wilson,

503 U.S. 329 (1992) ............................................... 20

Wainwright v. Sykes,

433 U.S. 72 (1977) ................................................... 7

Waley v. Johnston,

316 U.S. 101 (1942) ................................................. 4

Statutes

1 U.S.C. § 1 ............................................................... 21

28 U.S.C. § 2254 (1948 ed.) ........................................ 5

28 U.S.C. § 2254(a) ..................................................... 9

28 U.S.C. § 2254(b) ................................................... 12

28 U.S.C. § 2254(b)(1)(B) ......................................... 22

28 U.S.C. § 2254(b)(1)(B)(i)–(ii) ................................. 9

28 U.S.C. § 2254(b)(1)(B)(ii) ......1, 2, 10, 14, 15, 20, 23

Act of Sept. 24, 1789, ch. 20, 1 Stat. 73, 81 (1789) ..... 3

Act of April 3, 1800, ch. 18, § 40, 2 Stat. 19, 32 ........ 3

Act of August 29, 1842, ch. 257, 5 Stat. 539, 539 ...... 3

Anti-Terrorism and Effective Death Penalty Act

of 1996 ..................................................................... 9

Habeas Corpus Act 1679,

31 Car. 2, c. 2 (Eng.) .................................... 2, 3, 5, 9

Rules

Supreme Court Rule 37.2 ........................................... 1

vi

Other Authorities

THE FEDERALIST No. 84 (Alexander Hamilton) ......... 3

Force Bill of 1833, ch. 57, § 7, 4 Stat. 632, 634–35 ...... 3

Hon. Louis E. Goodman, Address at the Annual

Conference of the Ninth Circuit: Use and

Abuse of the Writ of Habeas Corpus (1947), in

7 F.R.D. 313 1948)................................................... 5

The Habeas Corpus Reform Act of 1982:

Hearing on S. 2216 Before the S. Comm. on

the Judiciary, 97th Cong. 2 (1982) (statement

of Sen. Howell Heflin),

https://heinonline.org/HOL/P?h=hein.cbhear/h

abecoract0001&i=6.................................................. 8

Merritt James, Exhaustion of State Remedies

before Bringing Federal Habeas Corpus: A

Reappraisal of U.S. Code Section 2254, 43

NEB. L. REV. 120 1964) ............................................ 3

Judgment Order, DE 145, Plymail v. Mirandy,

No. 3:14-cv-06201 (S.D. W. Va. Sept. 16, 2021) ... 19

Judicial Conference Ad Hoc Committee on

Habeas Corpus Review of Capital Sentences:

Minutes of the Meeting of September 16, 1988,

(Sept. 16, 1988),

https://scholarlycommons.law.wlu.edu/cgi/vie

wcontent.cgi?article=1019&context=habeasco

rpus .......................................................................... 8

Magna Carta, 1215, 17 John (Eng.)........................... 2

vii

Powell Papers: Habeas Corpus Committee,

WASH. & LEE SCH. L.,

https://scholarlycommons.law.wlu.edu/habeas

corpus/?utm_source=scholarlycommons.law.w

lu.edu%2Fhabeascorpus%2F29&utm_medium

=PDF&utm_campaign=PDFCoverPages (last

accessed Jan. 21, 2026) ........................................... 9

Pub. L. 104-132, 110 Stat. 1214 (1996) ..................... 9

REPORT OF THE PROC. OF THE JUD. CONF. OF THE

UNITED STATES (Mar. 13, 1990),

https://www.uscourts.gov/file/1651/download ........ 8

Reviser’s Notes to 28 U.S.C. § 2254, (Supp. IV

1946) ........................................................................ 5

Testimony of Justice Lewis F. Powell, Jr. on

Federal Habeas Corpus in Capital Cases the

H. Subcomm. on Cts., 101st Cong. 7 (1990),

https://scholarlycommons.law.wlu.edu/cgi/vie

wcontent.cgi?article=1022&context=habeasco

rpus .......................................................................... 9

1

INTEREST OF THE AMICI CURIAE1

The Innocence Network is an association of independent organizations providing pro bono legal and/or

investigative services to prisoners for whom post-conviction evidence can compellingly prove innocence.

The current president of the Innocence Network is

Anna Vasquez of the Texas Innocence Project. The Innocence Network’s 73 current members—including

the Midwest Innocence Project, among others—represent hundreds of prisoners with innocence claims in

50 states, the District of Columbia, and Puerto Rico.

The Innocence Network also works to improve the accuracy and reliability of the criminal justice system in

future cases. Drawing on the lessons from wrongful

convictions, the Innocence Network advocates reform

to enhance truth-seeking, as well as to ensure that future wrongful convictions are prevented and that

courts provide meaningful post-conviction review of

colorable claims of innocence.

SUMMARY OF THE ARGUMENT

Amici curiae respectfully requests that this Court

grant Alan Hicks’ petition and hold that the exhaustion requirement of federal habeas relief is excusable

when extraordinary delays in state post-conviction

proceedings are attributable to the state and, therefore, render the state process ineffective under 28

U.S.C. § 2254(b)(1)(B)(ii). The Fourth Circuit’s narrow

No counsel for a party authored this brief in whole or in

part, and no such counsel or party made a monetary contribution

intended to fund the preparation or submission of the brief. No

one other than the Innocence Network and the Midwest Innocence Project funded preparation of this brief. Amici curiae certify that, pursuant to Supreme Court Rule 37.2, counsel of record

for all parties received timely notice of the intent to file this brief.

1

2

interpretation undermines the historical and constitutional principles of habeas corpus and due process

by disregarding past delays once a state belatedly

acts.

Section 2254(b)(1)(B)(ii)’s applicability turns on ineffectiveness, not endless delay. When a state’s inaction lasts decades, depriving individuals of a meaningful opportunity to vindicate their constitutional

rights, the process is ineffective, regardless of whether

the state acts at the eleventh hour. Limiting the exception to interminable delay allows states to immunize themselves from federal review through strategic

(and undesirable) conduct. This Court should reject

that approach and hold that federal courts may excuse

exhaustion when state processes, in practice, fail to

protect individual rights through extraordinary delay.

ARGUMENT

I. Historical Context of Habeas Corpus and

Exhaustion.

A. Anglo–American Roots.

Habeas corpus traces its roots to the Magna Carta

of 1215, namely, the requirement that any deprivation

of one’s freedom be supported “by the lawful judgment

of his equals or by the law of the land.” Magna Carta,

1215, 17 John (Eng.). Constitutional clashes in the

seventeenth century, however, compelled Parliament

to enact the Habeas Corpus Act of 1679, transforming

the writ of habeas from a common-law remedy into a

statutory guarantee of liberty. See Habeas Corpus Act

1679, 31 Car. 2, c. 2 (Eng.). In addition to curbing

royal abuse, this Act became the blueprint for protecting individual rights and liberties. See Ex Parte

Yerger, 75 U.S. (8 Wall.) 85, 95 (1868).

3

The Framers of the U.S. Constitution were profoundly influenced by this Act. See Merritt James, Exhaustion of State Remedies before Bringing Federal

Habeas Corpus: A Reappraisal of U.S. Code Section

2254, 43 NEB. L. REV. 120, 133 n.71 (1964); see also

THE FEDERALIST No. 84 (Alexander Hamilton) (calling

the Habeas Corpus Act “‘the bulwark of the British

Constitution’” against the “dangerous engine of arbitrary Government” and the “remedy” for the “fatal

evil” of letting a prisoner’s “sufferings” become “unknown or forgotten”). This Act and subsequent interpretations by English courts naturally became “authoritative guides” for the American legal system, “defining the principles which control the use of the writ

in the federal courts.” McNally v. Hill, 293 U.S. 131,

136 (1934).

B. Early Treatment in the United States.

Congress enacted the Federal Judiciary Act in

1789, authorizing federal courts to issue writs of habeas corpus to those subject to federal confinement

“for the purpose of an inquiry into the cause of commitment.” Act of Sept. 24, 1789, ch. 20, 1 Stat. 73, 81

(1789). In the years that followed, Congress gradually

expanded the scope of habeas relief. See Act of April 3,

1800, ch. 18, § 40, 2 Stat. 19, 32; Force Bill of 1833, ch.

57, § 7, 4 Stat. 632, 634–35; Act of August 29, 1842,

ch. 257, 5 Stat. 539, 539. Meanwhile, this Court’s statutory interpretations tempered the notion of statecourt supremacy and highlighted the writ’s role in a

dual-sovereignty system. See Ex Parte Dorr, 44 U.S.

(3 How.) 103, 105 (1845); Ableman v. Booth, 62 U.S.

(21 How.) 506, 514 (1858).

Congress eventually enacted the Habeas Corpus

Act of 1867, authorizing federal courts to issue writs

4

in all cases. Ch. 28, 14 Stat. 385. Habeas was no longer

a narrow and formalistic form of relief but instead demanded a broad, holistic consideration of the totality

of the circumstances. Indeed, as this Court recognized, “an investigation into the case of a prisoner

held in custody by a state on conviction of a criminal

offense must take into consideration the entire course

of proceedings in the courts of the state, and not merely

a single step in those proceedings.” Frank v. Mangum,

237 U.S. 309, 331–32 (1915) (emphasis added). The

scope of habeas relief continued to expand with this

Court later recognizing that habeas “extends * * * to

those exceptional cases where the conviction has been

in disregard of the constitutional rights of the accused,

and where the writ is the only effective means of preserving his rights.” Waley v. Johnston, 316 U.S. 101,

105 (1942) (emphasis added).

By the mid-twentieth century, habeas finally

“evolved” into what it is today: “a remedy available to

effect discharge from any confinement contrary to the

Constitution or fundamental law, even though imposed pursuant to conviction by a court of competent

jurisdiction.” Preiser v. Rodriguez, 411 U.S. 475, 485

(1973). Otherwise, “‘[t]he name of liberty * * * would

be a mockery of common sense,’” and “‘no man can be

safe, nor know when he may be the innocent victim.’”

United States v. Brown, 381 U.S. 437, 444 (1965) (citation omitted). This makes sense. Federal habeas review vindicates individual rights that secure the integrity of judicial proceedings and “‘the most probative information bearing on the guilt or innocence of

the defendant.’” Kimmelman v. Morrison, 477 U.S.

365, 379 (1986) (quoting Stone v. Powell, 428 U.S. 465,

490 (1976)). This Court accordingly “afford[s] broad

5

habeas corpus relief, recognizing the need in a free society for an additional safeguard against compelling

an innocent man to suffer an unconstitutional loss of

liberty.” Stone, 428 U.S. at 491 n.31 (emphasis added).

C. The Codification of Exhaustion.

Petitions surged as habeas relief focused on preserving constitutional rights, creating logistical burdens nationwide. U.S. v. Hayman, 342 U.S. 205, 212

(1952); see also Hon. Louis E. Goodman, Address at

the Annual Conference of the Ninth Circuit: Use and

Abuse of the Writ of Habeas Corpus (1947), in 7 F.R.D.

313, 314 (1948) (“Instances of abuse of the right to the

writ * * * are legion.”). These challenges raised concerns about balancing access to the “great writ” with

judicial efficiency. Goodman, supra, at 314–17.

In response, Congress amended the Habeas Corpus Act in 1948, codifying the exhaustion requirement: petitioners must first exhaust state remedies

unless (1) no corrective process exists or (2) there are

“circumstances rendering such process ineffective to

protect the rights of the prisoner.” 28 U.S.C. § 2254

(1948 ed.). But this was not a new requirement. As

Congress made clear, § 2254 “is declaratory of existing

law as affirmed by the Supreme Court.” Reviser’s

Notes to 28 U.S.C. § 2254, at 1564 (Supp. IV 1946)

(citing Ex Parte Hawk, 321 U.S. 114 (1944)).2

In its initial form—dating back to at least the

1800s—exhaustion was rooted in principles of comity,

Reviser’s notes are “authoritative” in construing statutes. See United States v. Nat’l City Lines, Inc., 337 U.S. 78, 81

(1949).

2

6

offering state courts the first opportunity to correct

their own constitutional violations. Ex Parte Royall,

117 U.S. 241, 251–53 (1886); see also Cook v. Hart, 146

U.S. 183, 194–95 (1892); Minnesota v. Brundage, 180

U.S. 499, 500–02 (1901). In Ex Parte Royall, for example, this Court advised that although federal restraint

may be desirable, federal courts nevertheless were

empowered to discharge prisoners even before trial if

the detention was unconstitutional. 117 U.S. at 251–

53. This Court stressed that any notion of discretion

may transform into a duty depending on the circumstances:

[W]here a person is in custody, under

process from a state court of original jurisdiction, for an alleged offense against

the laws of such state, and it is claimed

that he is restrained of his liberty in violation of the constitution of the United

States, the circuit court has a discretion

whether it will discharge him upon habeas corpus, in advance of his trial in the

court in which he is indicted; that discretion, however, to be subordinated to any

special circumstances requiring immediate action.

Id. at 252–53 (second emphasis added). Thus, since

the 1800s, the availability of habeas corpus has depended not upon a rote application of the exhaustion

requirement, but upon consideration of the entire set

of circumstances underlying the petition.

This Court carried these principles well into the

twentieth century, explaining that “where resort to

state court remedies has failed to afford a full and fair

7

adjudication * * * because in the particular case the

remedy afforded by state law proves in practice unavailable or seriously inadequate, * * * a federal court

should entertain his petition for habeas corpus.”

Hawk, 321 U.S. at 118 (emphasis added) (citations

omitted); see also Fay v. Noia, 372 U.S. 391, 401, 411

(1963), overruled by Wainwright v. Sykes, 433 U.S. 72

(1977). Without malleable exceptions to exhaustion,

the prisoner oftentimes “would be remediless.” Hawk,

321 U.S. at 118.

Courts continued to apply a flexible approach even

after Congress codified the exhaustion requirement.

In Frisbie v. Collins, this Court explained that exhaustion was “not rigid and inflexible; district courts

may deviate from it and grant relief in special circumstances.” 342 U.S. 519, 521 (1952). This Court recognized the importance of habeas as a safeguard of “fundamental rights of personal liberty” and emphasized

its close connection to constitutional protections, including the right to due process of law. Fay, 372 U.S.

at 401. Quoting Justice Holmes, this Court held that

“habeas corpus cuts through all forms and goes to the

very tissue of the structure. It comes in from the outside, not in subordination to the proceedings, and although every form may have been preserved opens the

inquiry whether they have been more than an empty

shell.” Id. (quoting Frank, 237 U.S. at 346 (Holmes, J.,

dissenting)). This Court was “not speaking of mere

disorder, or mere irregularities in procedure, but of a

case where the processes of justice are actually subverted. In such a case, the Federal court has jurisdiction to issue the writ.” Id.

Courts in the following decades continued to balance principles of comity against principles of habeas

8

corpus, tipping more so to either side at different junctures. Eventually, renewed judicial and legislative efforts for habeas reform began to take shape. For example, when debating and refining the Habeas Corpus Reform Act of 1982, the Senate Judiciary Committee emphasized the need to “conserv[e] our judicial resources at both the State and Federal levels for truly

meritorious claims” by “attempt[ing] to resolve the unanswerable question of, when has justice been done.”3

While legislators considered and debated certain provisions that would have significantly restricted habeas relief, those efforts failed. See id.

In June 1988, Chief Justice Rehnquist convened

an ad hoc committee to determine whether legislation

was necessary given the inadequacy of the then-existing collateral review system.4 When the so-called

“Powell Committee” addressed exhaustion, some

members questioned whether strict exhaustion rules

contributed to inefficiency, prompting members to obtain data of time consumed in state and federal court,

time consumed from failure to comply with exhaustion requirements, and each state’s willingness to

waive exhaustion requirements, among other things.5

The Habeas Corpus Reform Act of 1982: Hearing on S.

2216 Before the S. Comm. on the Judiciary, 97th Cong. 2 (1982)

(statement

of

Sen.

Howell

Heflin),

https://heinonline.org/HOL/P?h=hein.cbhear/habecoract0001&i=6.

4

REPORT OF THE PROC. OF THE JUD. CONF. OF THE UNITED

STATES,

7–8

(Mar.

13,

1990),

https://www.uscourts.gov/file/1651/download.

5

Judicial Conference Ad Hoc Committee on Habeas Corpus Review of Capital Sentences: Minutes of the Meeting of September 16, 1988, 5–6, (Sept. 16, 1988), https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=1019&context=habeascorpus.

3

9

Citing a mountain of evidence,6 the Committee

acknowledged the gravity of capital punishment and

the need to “advance the fundamental requirement of

a justice system -- fairness.”7 The Committee’s recommendations culminated in the enactment of the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), which preserved § 2254 from the 1948 Habeas Corpus Act. See Pub. L. 104-132, 110 Stat. 1214

(1996).

Section 2254 of AEDPA authorizes federal courts

to consider habeas petitions from individuals in state

custody when their custody purportedly violates the

U.S. Constitution, federal laws, or treaties. 28 U.S.C.

§ 2254(a). Section 2254’s exhaustion requirement

states that an applicant must first exhaust state court

remedies before petitioning for federal habeas relief

unless “(i) there is an absence of available State corrective process; or (ii) circumstances exist that render

such process ineffective to protect the rights of the applicant.” Id. § 2254(b)(1)(B)(i)–(ii).

II. Delay Renders State Processes Ineffective

to Protect Individual Rights.

Petitioner started seeking post-conviction relief in

West Virginia state court in 1989. Hicks v. Frame, 145

See generally Powell Papers: Habeas Corpus Committee,

WASH. & LEE SCH. L., https://scholarlycommons.law.wlu.edu/habeascorpus/?utm_source=scholarlycommons.law.wlu.edu%2Fhabeascorpus%2F29&utm_medium=PDF&utm_campaign=PDFCoverPages (last accessed Jan.

21, 2026).

7

Testimony of Justice Lewis F. Powell, Jr. on Federal Habeas Corpus in Capital Cases the H. Subcomm. on Cts., 101st

Cong. 7 (1990), https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=1022&context=habeascorpus.

6

10

F.4th 408, 413–15 (4th Cir. 2025). But his petitions

were largely ignored. Despite a revolving door of counsel and presiding judges, Petitioner’s case did not

meaningfully advance for more than 30 years. See id.

After spinning his wheels in state court for decades, Petitioner filed a federal habeas petition, which

the district court dismissed for failure to exhaust. Id.

at 412–15. It was only after Petitioner appealed the

dismissal to the Fourth Circuit—indeed, it was after

the matter was fully briefed and argued—that the

state court suddenly and summarily dismissed his

state petition for post-conviction relief. Id. The Fourth

Circuit then affirmed the dismissal, holding that Petitioner could not use “past delay” to show “that the

state process is presently ineffective.” Id. at 420.

The Fourth Circuit notably reached its decision

only after acknowledging that the state processes

were ineffective. Id. at 418. The court’s reason: because § 2254(b)(1)(B)(ii) is “written in the present

tense,” “past delay,” even “decades of delay,” is “insufficient to excuse exhaustion[.]” Id. at 418–20.

But that decision ignores both history and reason.

The state trial court’s dismissal came nearly 28 years

after Petitioner first filed his post-conviction petition—which he filed after waiting 8 years for the trial

court to rule on his sentence-reduction motion, and

which the trial court did not decide until the West Virginia Supreme Court nudged it to do so in 2019. Id. at

413–14. Curiously, the post-conviction petition’s dismissal suspiciously was made “summarily” just after

oral argument before the Fourth Circuit. Id. at 415.

With over 36 years spanning between Hicks filing his

first collateral attack and the belated dismissal, even

11

the Fourth Circuit could not help but scold West Virginia by giving it “no credit for its narrow victory” after treating Petitioner in a way that “no doubt offends

basic notions of how a state should treat its prisoners.”

Id. at 420. The Fourth Circuit’s decision to allow that

same treatment to bar Petitioner’s access to federal

habeas relief makes no sense.

In fact, it defies the settled precedent of this Court.

For example, this Court previously emphasized in

O’Sullivan v. Boerckel that exhaustion requires a prisoner to fully exhaust all state remedies. 526 U.S. 838,

848 (1999). This Court also emphasized, however, that

the requirement to “properly exhaust[]” asks whether

the prisoner “has fairly presented his claims to the

state courts.” Id. (second emphasis added). So, what is

then to be made of a case in which a petitioner has

properly and fairly presented his claims in a state

court that spends more than three decades ignoring

those claims? As this Court held, “the exhaustion doctrine is designed to give the state courts a full and fair

opportunity to resolve” claims before they “are presented to the federal courts.” Id. at 845 (emphasis

added). Surely, by waiting 32 years from his first collateral attack before seeking federal habeas relief, Petitioner afforded West Virginia ample opportunity to

weigh in.

The upshot is that the exhaustion requirement assumes a fully functional state process. But if state-orchestrated delays render the state process illusory,

federal courts must be allowed to step in to provide

the review of the prisoner’s post-conviction claims

that the state court has failed to provide. State gamesmanship should not be permitted to prevent federal

courts from considering the merits of the unexhausted

12

claims and, if appropriate, granting habeas relief. If

states could control the clock without even a chance of

federal oversight, the natural result would be indefinite delay, transforming exhaustion from a shield affording state courts the first chance to review their

own decisions into a sword that all but eviscerates federal habeas relief.

These concerns are magnified when prolonged delay consigns innocent individuals to unlawful custody.

The writ of habeas “protects the rights of the detained

by affirming the duty and authority of the Judiciary

to call the jailer to account.” Boumediene v. Bush, 553

U.S. 723, 745 (2008). It guarantees a meaningful opportunity to challenge unlawful restraint and detention. That guarantee is hollow if the state, through inordinate and unjustified delay, effectively withholds

timely access to a remedy. And each passing day of

unjustified confinement degrades the petitioner’s (and

the public’s) confidence in justice and the legitimacy

of the judicial system. Section 2254(b) does not compel

such an unjust result.

Courts should not reward strategic or negligent delays by the states, particularly where decades of inaction and procedural failures reduce the state process

to an empty formality. When it comes to habeas relief,

federal courts should not look at each stage in isolation, but rather “look beyond forms and inquire into

the very substance of the matter * * * [and] take into

consideration the entire course of proceedings in the

courts of the state.” Frank, 237 U.S. at 331 (emphasis

added).

13

Habeas corpus was born out of the need to protect

the rights of the incarcerated. See supra Part I. Excessive and unreasonable delays in state post-conviction

proceedings do not comport with federal due process

guarantees. Indeed, “the Due Process Clause always

protects defendants against fundamentally unfair

treatment by the government in criminal proceedings.” Doggett v. United States, 505 U.S. 647, 666

(1992) (Thomas, J., dissenting). And due process demands fair and reliable adjudication—as well as a fair

opportunity to vindicate constitutional rights when

that adjudication goes awry.

“The gist of the Due Process Clause, as understood

at the founding and since, was to force the Government to follow those common-law procedures traditionally deemed necessary before depriving a person

of life, liberty, or property.” Hamdi v. Rumsfeld, 542

U.S. 507, 556 (2004) (Scalia, J., dissenting). Those

rights “have historically been vindicated by the writ of

habeas corpus.” Id. at 557. But that relief is available

only if state-designed delays, like the one created by

West Virginia here, cannot be weaponized to short-circuit the entire federal habeas process.

Practical considerations reinforce this view. As

this Court has recognized, the “[p]assage of time * * *

may impair memories, cause evidence to be lost, deprive the defendant of witnesses, and otherwise interfere with his ability to defend himself.” United States

v. Marion, 404 U.S. 307, 322 (1971). This concern is

paramount where “the passage of time has frustrated

[an individual’s] ability to establish his innocence of

the crime charged.” United States v. MacDonald, 435

U.S. 850, 860 (1978). While not every delay will excuse

the exhaustion requirement, what matters is whether

14

the delay is unreasonable. Dickey v. Florida, 398 U.S.

30, 51 (1970) (Brennan, J., concurring). Deliberate,

purposeful, or oppressive delay “is unjustifiable,” as is

delay caused by negligence. Id. It deprives the individual of the very “principles of procedural fairness required by the Due Process Clause of the Fourteenth

Amendment.” Id. at 39 (Harlan, J., concurring). And

without this promise of procedural fairness, it hardly

can follow that a state’s process is anything except “ineffective to protect the rights of the applicant.” 28

U.S.C. § 2254(b)(1)(B)(ii).

Petitioner’s case is one of the most recent (and

egregious) examples of delay in state courts jeopardizing and nullifying post-conviction rights. To deprive

Petitioner of federal review under these extraordinary

circumstances is to empower states to use indefinite

delay followed by summary denial to subvert the entire habeas process. That is not an effective process.

III. Past, Present, and Future Delays Evidence

Circumstances that Establish an Ineffective

State Process and Pose a Nationwide Concern to Innocent Individuals.

Unfortunately, Petitioner is but one stitch in a pattern of prolonged state-inaction cases. The uncertainty surrounding § 2254(b)(1)(B)(ii) has created a

circuit split. Although there is uniformity that ongoing delays can excuse exhaustion, some circuits have

nonetheless restricted their review to whether currently “circumstances exist that render such process

ineffective to protect the rights of the applicant.” 28

U.S.C. § 2254(b)(1)(B)(ii). But these courts credit the

statute with words Congress never uttered.

15

This was precisely the Fourth Circuit’s reason for

affirming dismissal, even as it acknowledged “past ineffectiveness is not irrelevant in considering present

ineffectiveness.” Hicks, 145 F.4th at 419. The problem

with this view is that the statutory text includes no

such limitation. See 28 U.S.C. § 2254(b)(1)(B)(ii). This

strained construction instead undermines federal habeas relief while dampening the express language of

Congress in § 2254(b)(1)(B)(ii).

The sounder interpretation of § 2254(b)(1)(B)(ii)

considers all circumstances that may evidence an ineffective process, including past delay. For example,

the Sixth Circuit has recognized that although “[t]he

exhaustion requirement is based on principles of comity and federalism,” it necessarily “is based on the presumption that states maintain adequate and effective

remedies to vindicate federal constitutional rights.”

Turner v. Bagley, 401 F.3d 718, 724 (6th Cir. 2005).

There, the state court had failed to act on the petitioner’s direct appeal for more than eight years before

a federal habeas petition was filed. Id. at 723. Because

“state courts did not give prompt consideration to

Turner’s claims,” the habeas petition “defeated the

presumption of adequate and effective remedies at the

state level.” Id. at 724. Even more, despite the state

court’s “subsequent decision” to affirm the petitioner’s

conviction, the court determined that this “decision

was too late,” and “exhaustion should be excused as to

all issues raised.” Id. at 725. The post-conviction relief

sought in state court “languished for years without adjudication.” Id. Thus, “[a]t the time he filed his federal

habeas corpus petition, Turner was without recourse

in state court.” Id. at 726.

16

The situation in Turner tragically was not an aberration. See Lee v. Stickman, 357 F.3d 338, 341 (3d

Cir. 2004) (“This ping-pong game the state court was

playing with Lee’s petition would almost be comical if

Lee had not been in custody this entire time awaiting

resolution.”). Numerous prisoners have been victimized by inordinate delays and forced to petition for federal habeas relief only for the state process to then

suddenly spring back to life. See, e.g., Harris v. Champion, 938 F.2d 1062, 1066–67 (10th Cir. 1991) (considering “the two-year delay that has already occurred”

to hold that “an unreasonably delayed state” proceeding excuses exhaustion); Lee, 357 F.3d at 342 (excusing exhaustion because “it is difficult to envision any

amount of progress justifying an eight-year delay in

reaching the merits of a petition”).

In such cases, deference (or indifference) should

not be blindly given to the same state actor that bears

responsibility for the delay—no matter whether that

delay occurred, occurs, or will occur. As the Third Circuit put it, delay may be forgiven “[i]f only finite lifespans would permit.” Lee, 357 F.3d at 342. Accordingly, assessing whether circumstances render the

state process ineffective, such as through excessive delay, is measured “at the time [petitioner] filed his federal habeas corpus petition.” Id. at 343. This makes

sense because “the exhaustion requirement is neither

ironclad nor unyielding.” Evans v. Wills, 66 F.4th 681,

682 (7th Cir. 2023).

Here, the fact that West Virginia state courts ignored Petitioner’s various forms of post-conviction relief for approximately three decades is striking. Courts

have easily called much shorter delays as rendering

the state process ineffective. See, e.g., Lindsey v. Neal,

17

138 F.4th 1039, 1043 (7th Cir. 2025) (finding a delay

of more than six years—including a three-year delay

without any action—is “troubling”); Morton v. Dir.

Virgin Islands Bureau of Corr., 110 F.4th 595, 604 (3d

Cir. 2024) (emphasizing that a ten-year “delay erodes

confidence in the judiciary and its ability to dispense

justice, and it is unacceptable absent a compelling reason”); Carter v. Buesgen, 10 F.4th 715, 716 (7th Cir.

2021) (finding a four-year delay is “extreme and

tragic”); Coe v. Thurman, 922 F.2d 528, 531 (9th Cir.

1990) (calling a four-year delay “alarming”); Mathis v.

Hood, 851 F.2d 612, 613–14 (2d Cir. 1988) (holding a

six-year delay “is shocking” but, “unfortunately, it is

not unusual”). Indeed, the Fourth Circuit itself previously excused exhaustion and called West Virginia’s

state process “troubling” and ineffective due to an “inordinate delay” of “over 20 years.” Plymail v. Mirandy,

671 F. App’x 869, 870–71 (4th Cir. 2016).

Simply put, “[t]he exhaustion doctrine does not apply * * * when the state system inordinately and unjustifiably delays review so as to impinge upon a petitioner’s due process rights.” Johnson v. Roberts, 1996

WL 405773, at *1 (5th Cir. Jul. 1, 1996) (unpublished).

“It would make no sense to require a petitioner to exhaust the very procedures that he claims are being unconstitutionally protracted before he can raise that issue in the federal court. Habeas relief would be rendered ineffective.” Harris, 938 F.2d at 1069. This is

precisely Petitioner’s situation. Before being nudged

by higher courts on multiple occasions, West Virginia

was content to let Petitioner’s post-conviction proceedings linger in limbo for the indefinite future. Since

those proceedings were first initiated, individuals

18

have been born, earned bachelors’ degrees, become juris doctors, and assimilated into myriad law firms.8 As

the legal system has progressed, Petitioner’s applications—and his rights—remained stunted.

The Seventh Circuit recently called delays of

“twenty years and counting” “beyond the pale and indefensible.” Evans, 66 F.4th at 682 (excusing exhaustion). This rings equally true here. West Virginia’s

treatment of Petitioner “is a travesty of justice.” Pope

v. Taylor, 100 F.4th 918, 921 (7th Cir. 2024) (excusing

exhaustion for 28-year delay). Worse yet, this is not

the first time that West Viriginia has treated the incarcerated in such a way. See Plymail, 671 F. App’x at

870–71 (excusing exhaustion). Regardless how one

cuts it, “what [Petitioner] experienced was nothing

short of a breakdown in state processes.” Evans, 66

F.4th at 687. It makes no meaningful difference

whether the delay occurred, is occurring, or will occur—what matters is that the state process has been,

is, and will continue to be ineffective as a means of

protecting the rights of West Virginians. Exhaustion

must be excused under these circumstances.

Additionally, ignoring delay poses significant

harm to the post-conviction rights of innocent petitioners. In Lindsey v. Neal, for example, the petitioner’s post-conviction efforts stalled for six years.

138 F.4th at 1041. During that time, the petitioner

maintained his innocence and challenged his convic-

In fact, the very same prosecutors in Petitioner’s 1988

trial would go on to become state-court judges, presiding over the

very same post-conviction proceedings involving Hicks that remained dormant for approximately 30 years. See Hicks, 145

F.4th at 412–15.

8

19

tion. Id. But as his case “sat idle,” his pleas went unheard in state court. Id. at 1042. The petitioner in Evans v. Wills experienced similarly unfortunate circumstances, maintaining he was “not only innocent

but also that the prosecution had engaged in serious

misconduct.” 66 F.4th at 683. But for more than 20

years, the state paid no heed to the petitioner’s postconviction conduct. Id.

Or consider the petitioner from Plymail v. Mirandy, whose direct appeal went unanswered for decades. 8 F.4th 308, 311 (4th Cir. 2021). Forced to petition for habeas relief before his direct appeal resolved,

the court held this egregious delay excused exhaustion. Plymail, 671 F. App’x at 871; see also id. at 870

(noting that West Virginia finally decided his appeal

after the habeas petition was filed). Years later, evidence proved the prosecution had acted improperly

during the original trial and violated the petitioner’s

due process rights. Plymail, 8 F.4th at 320. As a result, federal habeas review resulted in his underlying

conviction being overturned and his liberty restored

almost 30 years after his improper conviction. See

Judgment Order, DE 145, Plymail v. Mirandy, No.

3:14-cv-06201 (S.D. W. Va. Sept. 16, 2021).

These are just a few recent examples that demonstrate the profound prejudice of years-long inaction—

prejudice that may foreclose opportunities to challenge a wrongful conviction. Without federal oversight, idle state courts can effectively deny justice

through delay alone. Indeed, in these cases, the only

process to effectively vindicate the petitioners’ innocence is to seek federal habeas relief. But if such delay

did not evidence dysfunctional state processes and ex-

20

cuse exhaustion, then states could obstruct federal review by delaying post-conviction proceedings indefinitely. Even more, this would perpetuate wrongful incarceration. Innocent individuals may languish in

prison without meaningful review, losing critical evidence and witnesses as time passes. Under that

framework, the innocent would be unfairly harmed

not only through an improper conviction, but again

(and again) through improper delay. Standing alone,

neither is acceptable. But together, legal remedies become illusory.

Finally, the Fourth Circuit’s restrictive reading of

§ 2254(b)(1)(B)(ii) to only consider present and future

delay is unsound. “We begin with the familiar canon

of statutory construction that the starting point for interpreting a statute is the language of the statute itself.” Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). “Congress’ use of a

verb tense is significant in construing statutes.”

United States v. Wilson, 503 U.S. 329, 333 (1992)

(Thomas, J.). And “modern legislative drafting manuals teach that, except in unusual circumstances, all

laws * * * should be written in the present tense.” Carr

v. United States, 560 U.S. 438, 463–64 (2010) (Alito,

J., dissenting) (citing various legislative aids and

manuals).

Consistent with modern legislative preference,

§ 2254(b)(1)(B)(ii)’s exhaustion exception is framed in

the present tense: “circumstances exist that render

such process ineffective to protect the rights of the applicant.” However, this exception does not expressly or

impliedly impose any requirement that circumstances

must exist and continue to exist that causally render

21

the state process ineffective. This makes sense. Otherwise, any state can do what West Virginia did: refuse to act for decades on various forms of post-conviction relief only to resume state proceedings and summarily dismiss once a federal habeas petition has been

filed, decided, and appealed. Such an empty process is

ineffective, regardless of whatever is promised by the

state. Cf. Harris, 938 F.2d at 1066 (“a promise of future action does not require us to blind ourselves to

past inaction”).

To allow West Virginia’s conduct is to grant carte

blanche to the states to confine prisoners to endless

delay while simultaneously authorizing them to immunize federal habeas review in buzzer-beater fashion. This outcome makes no sense. Cf. Carr, 560 at 470

(Alito, J., dissenting) (“When an interpretation of a

statutory text leads to a result that makes no sense, a

court should at a minimum go back and verify the textual analysis is correct.”).

Further, it is true that “unless the context indicates

otherwise * * * words used in the present tense include

the future as well as the present.” 1 U.S.C. § 1 (emphasis added). However, this only confirms that “the

context” or relevant circumstances matter in construing a statute. Id. The historical and legal context of

habeas relief is highly relevant to understanding the

exhaustion exception. As explained above, habeas relief is an essential aspect of the Anglo–American legal

system. See, e.g., Hicks, 145 F.4th at 420; see also Part

I. This context stands at odds with the restrictive view

taken by the Fourth Circuit. See, e.g., Frank, 237 U.S.

at 331–32 (1915) (explaining “that an investigation

into the case of a prisoner held in custody by a state

22

on conviction of criminal offense must take into consideration the entire course of proceedings in the courts

of the state, and not merely a single step in those proceedings”) (emphasis added); Hawk, 321 U.S. at 118

(noting “where resort to state court remedies has

failed to afford a full and fair adjudication * * * because in the particular case the remedy afforded by

state law proves in practice unavailable or seriously

inadequate, * * * a federal court should entertain his

petition for habeas corpus”) (citations omitted).

Indeed, Congress broadly “envisioned circumstances, however rare,” to guide whether exhaustion

should be excused. Evans, 66 F.4th at 682. Accordingly, to ensure habeas relief is not watered down, and

to ensure that historical context and all circumstances

are considered, past delay is an essential inquiry for

evaluating habeas corpus and its exhaustion requirement. See id. at 686 (declining “to turn § 2254(b)(1)(B)

into a mechanical accounting exercise”).

State-caused delays are not merely procedural defects; they prolong unlawful confinement and compound its human cost. In Lindsey, for example, the

six-year delay jeopardized the petitioner’s ability to

challenge his conviction and seek remedies for due

process violations. 138 F.4th at 1042. That harm does

not vanish once a state stirs; the lost time has already

constrained investigation, narrowed evidentiary options, and impaired memories, compromising the petitioner’s ability to vindicate his rights. That enduring

prejudice is itself a present “circumstance.” When delay has hollowed out the remedy, the process is presently ineffective, no matter the state’s eleventh-hour

act.

23

The exhaustion exception, therefore, is not so restricted as to consider only ongoing and future delay

but instead captures each form of injustice along the

way. Cf. Brown v. United States, 602 U.S. 101, 120

(2024) (Alito, J.) (noting “legislative drafters were instructed” to often use present tense, so the mere “[u]se

of the present tense, as opposed to the past, was likely

a stylistic rather than a substantive choice”); see also

Coal. for Clean Air v. S. Cal. Edison Co., 971 F.2d 219,

225 (9th Cir. 1992) (“The present tense is commonly

used to refer to past, present, and future all at the

same time.”); Abercrombie v. Clarke, 920 F.2d 1351,

1359 (7th Cir. 1990) (“Yet, it is abundantly clear that

Congress intended the present tense language to apply to past acts.”). Against a backdrop of longstanding

habeas and due-process principles, all forms of delay—including past delay—constitute “circumstances

[] that render such [state] process[es] ineffective to

protect the rights of the applicant.” 28 U.S.C.

§ 2254(b)(1)(B)(ii). Thus, this Court should grant the

Petition and ultimately reverse the Fourth Circuit’s

decision affirming the lower court’s dismissal of Petitioner’s federal habeas petition.

CONCLUSION

The Petition should be granted.

24

Respectfully submitted,

/s/ Matthew J. Stanford

RICHARD FINNERAN

BRYAN CAVE LEIGHTON

PAISNER LLP

211 N. Broadway,

Suite 3600

St. Louis, MO 63102

ARTI SAHAJPAL

BRYAN CAVE LEIGHTON

PAISNER LLP

161 N. Clark St.,

Suite 4300

Chicago, IL 60601

MATTHEW J. STANFORD*

MARK A. ERCOLANO

BRYAN CAVE LEIGHTON

PAISNER LLP

2 N. Central Ave.,

Suite 2100

Phoenix, AZ 85004

(602) 364-7000

matt.stanford@bclplaw.com

Counsel for Amici Curiae

February 6, 2026

*Counsel of Record