Respondents Brief — Reed v. Ross

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| Office - Subreme Court, U.S”

rFrtieErs

FEB 23 1984

ALEXANOER L. STEVAS

No. 83-218

NO. - CLERK

IN THE

Supreme Court of the Cited States

OCTOBER TERM, 1988

Petitio TS,

DANIEL Re

On Writ Of Certiorari To The United States

Court Of Appeals For The Fourth Circuit

BRIEF FOR RESPONDENT

BAR NAKI

14) Baseline Road

Boulder. Colorado 80302

{42-7408

12-8047

yted

fos Re spond nt

_ = ESE

—— TT

PRESS OF HY RONS VE min ’ sit ron. bee w2) S17 -520u

QUESTION PRESENTED

Whether Ross should be denied federal habeas corpus relief

from his concededly unconstitutional and unreliable state con-

viction because he did not raise the constitutional issue on

appeal, even though the reason that he did not do so was that

the law establishing the constitutional principle had not yet

begun to develop and was therefore effectivelv unavailable at

the time of his appeal,* and even though the state courts had

not refused on the procedural ground ‘to decide the issue in

Ross’ cases or in the cases of other defendants who had also

failed timely to raise the issue on appeal.

*The State and the Solicitor General state the Question in terms of

whether the constitutional issue was “novel” at the time of Ross’

appeal. That shorthand reference is misleading, however. The issue

was not even novel at that time. The foundation principle had not yet

been decided, and no counsel or court had perceived or begun to

litigate the issue.

TABLE OF CONTENTS

Page

GUMNTION PRRGENTED 5. on k cc cccccicccnwocsasccetesas i

AEE TE a6 bins O's kv'g s biv'e'g de die veuesdeces ii

METI vn. bid'c <b oendwcetne sees decelsbas Vv

SUMMARY OF ARGUMENT ......0ccccccccdccccccccess: 1

Sw ars edt heN bac ci 6 hedateabeiies vadcedess 1

I. Ross CoMMITTED No PROCEDURAL DEFAULT IN THE

STATE CoURTS ADEQUATE TO JUSTIFY DENIAL OF

FEDERAL HABEAS CORPUS .........scccccccececs 1

A. Ross Committed No Procedural Default At

ay RRS SAS oT A Sy ee ee. 2

B. The North Carolina Supreme Court Decided

The Burden Of Proof Issue On The Merits On

TONG DEE is vive aku abhi wesas keeabaie ees 2

C. The North Carolina Superior Court, And

re of The North Carolina Court Of A oe

As Well, Decided The Burden Of Proof Issue

The Merits On Ross’ Post-Conviction Peti- ‘

GR. civics cave bavadansetcs eaten

D. The North Carolina Courts Have Not Regular-

ly Or ee A Forfeiture For

ailure To Raise The Burden Of Proof Issue On

Appeal Before Mullaney Was Decided ..... 5

(1) The cases in which the North Carolina

courts have not imposed a forfeiture... 6

(> CEES Brier ese tanceeies 6

tdiahdiastcckgettesdensaaer? 6

(2) The cases in which the North Carolina

courts have imposed a forfeiture ....... 9

These cases

on the and

courts |! im-

Table of Contents Continued

II. THe Court oF APPEALS CoRRECTLY HELD THAT,

CONSIDERING ALL THE CIRCUMSTANCES, Ross DEm-

ONSTRATED CAUSE FOR HIS FAILURE TO CHALLENGE

THE BURDEN or Proor INSTRUCTIONS ON His PRE-

WinsHip APPEAL So THAT HE Was ENTITLED To

FEDERAL HABEAS CorPUS RELIEF FRoM His Con.

STITUTIONALLY UNRELIABLE CONVICTION .........

A. The Constitutional Violation Substantially Im-

permed The Truth-Finding Process At Ross’

Oe ee

B. The Unavailability Of A Constitutional Claim

Because

The Precedential Tools For Construct-

ing It Had Not Yet 5 To Develop Con-

stitutes “Cause” For The Failure Timely To

Raise The Claim ..............+. ‘eee ee gems

(1) The decisions of this Court ............

(2) The decisions of other courts and law re-

VIEW COMMENT ... 66. e ec eeeseeeenes

(3) The Federal Rules ..........0:0eee00s

(4) Reagan Administration proposals in

Congress to define “cause” ............

The Reason For Ross’ Failure To Raise The

Issue On A Was That His fovea ie

Been By The Time Vawaig ter The

hea re —e

Perceived Or Litigated The Issue ..........

(1) The test for a change in the law .......

D. The A Forfeiture For Fail-

Page

Table of Contents Continued

Page

E. North Carolina Law Does Not Require A For-

feiture For Every Procedural Default iginol 41

F. Under All The Circumstances Ross Has Met

The “Cause” Standard .......ccccecsccceces

Conn UNO .n'c sctkadare techie cWones bbcesbnn oc KRUU 45

ExuiBiT A: Spectrum Of Procedural Failures By The De-

fense In A State Criminal Case .......... la

Exuisit B; Mullaney v. Wilbur Time Line ........... 3a

- -

>. *? dn + > Ler ee 4 akc nlell sa 7 ~~ . ~~“

TABLE OF AUTHORITIES

CASES: Page

Alexander v. Maryland, 719 F.2d 1241 (4th Cir. 1983) 20

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18

Ri GEE CHE) 9 06 Fe bcnccenst cabessdeeceppe 14

Antone v. Dugger, 104 S. Ct. 962 (1984) ............. 20

Avery v. Hamilton, ___ F. Supp. ___ (W.D.N.C. 1984) 23

Barr v. City of Columbia, 378 U.S. 146, 84S.Ct. 1734, 12

L.Ed. es PN + 54 0alobe bas bdanpatss deeds 5

Bosnick v. State, 248 Ark. 1289, 455 S.W.2d 688 (1970) 29

Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 83 L.Ed.

NL ha > deere case dmbbees gotete copes

- Boyer v. Patton, 579 F.2d 284 (3d Cir. 1978) ......... 13

Bramwell v. Williams, 445 F. Supp. 106 (D. Md. 1977) 18

Branch v. State, 269 N.C. 642, 153 S.E.2d 343 (1967). 7

Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, obeseacmeey”

SP Baas hae odes cov icecOs dabvcéobeceunese 3, 17

Brown v. Mi i, 297 U.S. 278, 56 S.Ct. 461, 80

L.Ed.2d eee ( De Vesmades oe J belccasckeel ascne

Canary v. Bland, 583 F.2d 887 (6th Cir. 1978) ....... 18

Carrier v. Hutto, __. F.2d ___. (4th Cir. 1983) ..... 13

Carter v. Texas, 177 U.S. 442, 20 S.Ct. 687, 44 L.F 4. 839

SEE c ah Wass 0 ova taka de 68 oeeeus ies op. dene 17

Cole v. Stevenson, 620 F.2d 1055 (4th Cir.), cert. den., 449

U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301 (1980) 31, 32 2,

Collins v. Auger, 577 F.2d 1107 (8th Cir. 1978) ...... 18

Comm. v. Commander, 436 Pa. 532, 260 A.2d 773 (1970) 29

Connecticut v. Johnson, ___. U.S. —_, 103 S.Ct. 969

SEE Lc ctrcub ca chiss 0a pad> becus ehbpmakeiees> 3, 42

Cool v. United States, 409 U.S. 100, 98 S.Ct. 354, 34

0 MOE OU TIOTID 5 biicre co Seesa o doc sand eac e's

Crick v. Smith, 650 F.2d 860 (6th Cir. 1981) ......... 40

Derr asap Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761

Table of Authorities Continued

Page

Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36

RM REO écacbcthusdndl és Vhmeveties 33, 35

Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41

RU DOPOD cic k.nc wana hada suo we tenants 15

waa tems 263 U.S. 22, 44S.Ct. 13, 68 L.Ed. 143

Dietz v. Solem, 677 F.2d 672 (8th Cir. 1982) ......... 18

Douglas v. California, 372 U.S. 3538, 83 S.Ct. 814, 9

PG AEAMPOND. Dio peecedorpesedapondpenes 43, 44

Engle v. Se ~Speinh S. 107, 102 S.Ct. 1558, 71 L.Ed.2d

MRE 60 dt oid os Sa hea eh chdadadarodnarnie passim

oes v. State, 464 S.W.2d 840 (Tex. Crim. App.

oe eee eee eee eee er emer errr errr rere errrre

Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48

Spee SE AIOVOR acces cidkcccheedbes 13, 17, 28, 34

my United States, 327 U.S. 114, 66 S.Ct. 423, 90

Ee, Be Le a's 6 accn 06 cevkeko heb seiuaw

_ Evans v. Maggio, 557 F.2d 430 (5th Cir. 1977) ....... 40

Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837

CUOID vc ckskceee, fobs Sins chicgueteahertins passim

Ford v. Strickland, 696 F.2d 804 (11th Cir. 1983) 19, 37, 40

Forman v. Smith, 633 F.2d 634 (2d Cir. 1980), cert. den.,

450 U.S. 1001, 101 S.Ct. 1710, 68 L.Ed.2d 204

CNR sc itnch ehaets \ iki Vectv sneer oe ties 39, 40

Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48

Le CRAMER: ‘b-cig-wi'heos éd0es coveede 3, 4, 34, 35

rancisco Vv. ight, 419 U.S. 59, 95 S.Ct. 257, 42

Ls Me. SD COVED con ccccoctcctcsoneseeséiviine

Gardner v. Florida, 480 U.S. 349, 97 S.Ct. 1197, 51

L.Ed.2d 398 (1977) Makin ui SA0 bit ou w he Maes 13, 43, 44

Garland v. Cox, 472 F.2d 875 (4th Cir.), cert. den. sub

nom. Slayton v. Garland, 414 U.S. 908, 414 S.Ct.

217, 38 L.Ed.2d SUB LIOUDK asdine yiccas elas bits

Gibson v. S pe ee een eae 1981), vacated

and rema A ’ 456 U.S. 968 (1982), on remand, 703

F.20 S68 (th Clr. 1088) on ccccccccccccdeseecs 18, 42

vii

Table of Authorities Continued

Page

Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14

hg ee Be CLG Gaon ind ha Pek beds tenes ome

Grigsby v. Mabry, 569 F. Supp. 1273 (E.D. Ark. 1983) 23

Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24

TE ft Bans eae 15

Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct.

2339, 53 L.Ed.2d 306 (1977) .........-.-eeee passim

Harlin v. Missouri, 439 U.S. 459, 99 S.Ct. 709, 58

Se SLOG wc bed bie horde de ne cundebees

athorn v. Lovorn, 457 U.S. 255, 102 S.Ct. 2421, 72

DL HR MEE BULA Jac vcavisdctonivcacheseuh 5

siace abiadares tt 271, 66 S.Ct. 116, 90 L.Ed. 61

ee eee

Henderson v. Kibbe, 431 U.S. 1465, 97 S.Ct. 1730, 52

Re ON SOR CIB G ED is vrais in cs kop 30 vba eee waa ee 34, 35

Henderson v. State, 234 Ga. 827, 218 S.E.2d 612 (1975) 30

= v. Mississippi, 379 U.S. 443, 85 S.Ct. 498, 13

Fe GRE COOP > vnbinuivencas cpdtasebeletases

ere Ga 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed.

Hockenbury v. Sowders, 620 F.2d 111 (6th Cir. 1980). 4

Holcomb v. Murphy, 701 F.2d 1307 (10th Cir.) cert. den.,

—__.:; U.S. —_, 108 8.Ct. 3546 (1988) ...........

Huffman v. Wainwright, 651 F.2d 347 (5th Cir. 1981) . 42

Hum v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31

p SONUETED st ticevcctnevebetgedsedeces 13

ae pee 47 Cal. Rptr. 205, 407 P.2d5

eee eee

BP REPU Ss occ cb tise sageccccscécthvupipes cave “passim

Ivan V. v. New York, 407 U.S. 203, 92 S.Ct. 2781, 61

Lika. 2t 60 1) a OS si vec teeta ebnctet 11, 26

Table of Authorities Continued

Page

Jenkins v. Anderson, 447 U.S. 231, 102 S.Ct. 1558, 71

a Me ic eels ee chewieeee

Jenkins v. Georgia, 418 U.S. 153, 94.S.Ct. 2750, 41

ENO akin a6 c5.0s ccgee WG eds vices

Johnson v. Bennett, 386 F.2d 677 (8th Cir. 1967), vacated

and remanded, 393 U.S. 253, 89 S.Ct. 436, 21

L.Ed.2d 415 (1988) Rt te Te ae b ditties 17, 27

Johnson v. Bennett, 393 U.S. 258, 89 S.Ct. 436, 21

DERE 6 occ oc vvbecsveccvecedcssetes

Jones v. Barnes, ___ U.S. ___, 108 S.Ct. 3308, 77

L. Ed.2d 987 (1988) ...,.ccceccccess 12, 22, 23, 37, 39

Jones v. Warden, 241 S.E.2d 914 (W.Va. 1978) ...... 19

a v. United States, 394 U.S. 217, 89 S.Ct. 1068,

BRAID ME CREO cic cccectcccvesnave sas 12, 33

macs 2 > Poh Warden, 368 F.2d 490 (4th Cir. 1966) (en

Sy REELS TELE Wc PE do bccccccacudeutwess

Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43

ED EROUED Uo ccdccccdeccoccdevtgee vices

Leland v. on, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed.

pb. erry Peer erer er erry 25, 26, 27, 28, 33

Marks v. Estelle, 691 F.2d 730 (5th Cir. 1982) ....... 20

Matias v. Oshiro, 683 F.2d 318 (9th Cir. 1982) ....... 43

McDonnell v. Estelle, 666 F.2d 246 (5th Cir. 1982) ... 20

Michigan v. Long, _—. U.S. ——, 103 S.Ct. 3469 (1983) 4

Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56

CRAMANOID o5.cc heck.

nes State, 237 N.C. 29, 74 S.E.2d 513 (1 uae), cere

345 U.S. 930 980, 73 S.Ct. 792, 97

v. Wilbur. 421 U.S. 684, 95 S.Ct. 1881, 44

ed 4 508 (1975) piaWapbekas bo 4c 6 aiapewe passim

Murch v. Mottram, 409 U.S. 41, 98 S.Ct. 71, 34 L.Ed.2d

196 CIGTED oo ccc ccvccccocccevceccascouecoss cave

Table of Authorities Continued

Page

Myers v. Washington, 646 F.2d 355 (9th Cir. 1981), va-

cated and rema , 456 U.S. 921, 102 S.Ct. 1964, 72

L.Ed.2d 436 (1982), on remand, 702 F.2d 766 (9th

Cae Me Gia conv 0% cvbiseaacecthaete. 18, 22, 42

NAACP v. Alabama, 377 U.S. 288, 84 S.Ct. 1302, 12

Se GE dn v cb cdow dec ddareds Kkbevocbes

New York Central R. Co. v. New York and Pa. Co., 271

U.S. 124, 46 S.Ct. 447, 70 L.Ed. 865 (1926) ...... 17

Norris v. United States, 687 F.2d 899 (7th Cir.

DE iis Ca ahReMnidbsos ales cewudeeesen voneit 18, 40

North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23

Sams GEEEUED. sw Ghcbc ceddoveceascvepbes ets

O’Connor v. Ohio, 385 U.S. 92, 87 S.Ct. 252, 17 L.Ed.2d

TED ROE cove decicccvveescceteoseeeccveebscs 14

Patterson v. New York, 482 U.S. 197, 97 S.Ct. 2319, 53

Ts LL En REED Gives vincnd> cdehdeces 25, 26, 28

Preston v. Maggio, 705 F.2d 113 (5th Cir. 1983) ...... 18

Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92

L.Ed.2d 1356 (1948) .........cceeeeeeeees 12, 17, 23

Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d

OOGUIET GIES Eos iis onc o'e « 86 La saaO en DOK

weer poorga, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77

Rezin v. Wolff, 489 U.S. 1108, 99 S.Ct. 882 (1979) ... 9

Rivera v. Delaware, 429 U.S. 877, 97 S.Ct. 226, 50

CAGE SED TIDUED. Sani vccicsosivectocbscces 28, 33

Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d

Ross v. Reed, 704 F.2d 705 (4th Cir. 1988) ......... 18, 22

Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63

SAGE SUR COMI oi iiss Socchikcoessvsearbese 2,4

Rushen vy. Spain U.S. —_, 104 S.Ct. 453, 78

TAGE OUT COOEID. . . o0niccoccksvkoccecceccedn

Table of Authorities Continued

Page

Sanders v. United States, 373 U.S. 1, 88 S.Ct. 1068, 10

Race DEP COED itins <i bGbo pceketobctécdetend 17

Schneckloth v. Bustamonte, 412 U.S. 218, 93S.Ct. 2041, _

Se a PE LUTE waco kebnc chdcneaeceh canes 12

Smith v. Yeager, 393 U.S. 122, 89 S.Ct. 277, 21 L.Ed.2d

PEI his Biv 40 eu. cais 66h ncted ee Ads ov ldnaban'ed 15

Speiser v. Randall, 357 U.S. 5138, 78 S.Ct. 1332, 2

L.Ed.2d 246 (1968) Rees ee Low DY el ERB ll

State v. Abernathy, 36 N.C. App. 527, 244 S.E.2d 696

EET, SRre da hudines Unaw se maene banwedeavabaatwen 10

State v. Absher, 226 N.C. 656, 40 S.E.2d 26 (1946) . 28

State Afflerback, 46 N.C. App. 344, 264 S.E.2d 784

State v. pth 293 N.C. 259, 43 S.E.2d 143 (1978) ..

State v. Brown, 306 N.C. 151, 298 S.E.2d 569 (1982) .

State v. Bush, 307 N.C. 152, 297 S.E.2d 563 (1982) 6, 8,

State v. Crowder, 293 N.C. 259, 243 S.E.2d 143 (1977)

State v. Cruse, 238 N.C. 58, 76 S.E.2d 320 (1953) ....

State v. Duboise, 279 N.C. 73, 181 S.E.2d 393 (1971) .

State v. Evans, 278 Md. 197, 362 A.2d 629 (1976) ....

State v. Freeman, 275 N.C. 662, 170 S.E.2d 461

ERED. Sv cccdas veces sles baleblonets tiebbe ie 28,

State v. Freeman, 295 N.C. 710, 244 S.E.2d 680 (1978)

State v. Gause, 227 N.C. 26, 40 S.B.2d 463 (1946) ....

State v. Graves, 251 N.C. 560, 112 S.Ed.2d 85 (1960) .

State v. Hackney, 240 N.C. 230, 81 S.E.2d 778 (1954) .

State v. Hancock, No. 105 P.C. CS S.Ct. Nov. 29,

1978), in the Joint Appendix at 12.............. ’8, 10

State v. Hankerson, 288 N.C. iin asin acta

rev'd on other nds sub nom. Hankerson v. North

co U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d

Table of Authorities Continued

State v. Jackson, 293 N.C. 260, 247 S.E.2d 234 (1977)

State v. Jackson, 309 N.C. 26, 305 S.E.2d 703 (1983) .

State v. Jarvi, 3 Or. App. 391, 474 P.2d 363 (1970) ...

State v. Jennings, 276 N.C. 157, 171 S.E.2d 447 (1970)

State v. Johnson, 227 N.C. 587, 42 S.E.2d 685 (1946) .

State v. May, 293 N.C. 261, 247 S.E.2d 234 (1977) ...

State v. Nales, 28 Conn. Sup. 28, 248 A.2d 242

GGGEE a dina <v'e acca dhbcuasaansbsdestenuvesayi 27,

State v. Pinch, 306 N.C. 1, 262 S.E.2d 203 (1982) ....

State v. Riddick, 293 N.C. 261, 247 S.E.2d 234 (1977) .

State v. Riggsbee, 285 N.C. 708, 208 S.E.2d 656 (1974)

State v. Ross, 275 N.C. 550, 169 S.E.2d 875 (1969) ...

State v. Sparks, 285 N.C. 631, 207 S.E.2d 712 (1974)

vacated and remanded, 408 U.S. 905, 96 S.Ct. 3213

49 L.Ed.2d 1212 (1976) .....s.cccccccccccecess 39, 39

State v. Sparks, 297 N.C. 314, 255 S.E.2d 373 (1979) . 22

State v. Warren, __.. N.C. —__, 306 S.E.2d 446 (1983) 22

State v. Wetmore, 287 N.C. 344, 215 S.E.2d 51 (1975),

vacated and remanded, 428 U.S. 905, 96 S.Ct. 3213

49 L.Ed2d 1212 (1976) ...................... 39, 39

State v. White, 274 N.C. 220, 162 S.E.2d 478 (1968) .. 7, 41

State v. Wilbur, 278 A.2d 139 (Me. 1971) .......... 25, 28

State v. Willis, 63 N.C. 26, 29 (1868) ..........c000es 28

State v. Winford, 279 N.C. 58, 181 S.Ed.2d 423 (1971) 29

sor re

Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3087, 49 L.Ed.2d

MIE 6 u's. bu tacede bas Back ne'ckk os dala 7, 12

mange Bennett, 398 F.2d 111 (8th Cir.) (en banc), cert.

me. 308 U.S. 1001, 89 S.Ct. 483, 21 L.Ed.2d 466

S ae en eer 853, 84S.Ct. 113, 11 L.Ed.2d 80

eee er ee eee eeeeeeeee eee eeeeeeee eee ere eee

Pa.

xii

Table of Authorities Continued

Page

Sullivan v. Wainwright, 695 F.2d 1306 (11th Cir. 1983) 18

Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d

MOD cn khe evo «eeedabens< bo vedematas hha 37

Sunal v. Large, 382 U.S. 174, 67 S.Ct. 1588, 91 L.Ed.

SRMADOTT sc dédbthe veandheds ccbice eAWhaneks 13, 16

Townsend v. Sain, 372 U.S. 293, 88 S.Ct. 745, 9 L.Ed.2d

FPR. Cunaicavtie sana v eee ds ten shee chardee ts 15

Ulster County Court v. Allen, 442 U.S. 140, 99 S.Ct.

S213; OO L680 TTT (TOTO) .. oc c'cvccvcccccscens 3, 5

United States ex. rel. Curuso v. Zelinsky, 689 F.2d 435

Se a EDT ies bil yah cca bs mch he Acke bo aeinn vices 18, 40

United States ex. rel. Spurlark v. Wolff, 699 F.2d 354 (7th

COP. ERE COR NON dsc ncn ce cdvcctcconep esos 37, 40

United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579,

73 L.Ed.2d 202 (1982) ...........4.- 10, 15, 24, 32, 38

Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18

L.Ed.2d RUE sora db vc c vacdhnn culnaswen belie

Welgeres ¥.S tion 433 U.S. 72, 97 S.Ct. 2497, 53

adie $8 op ADA Ckbesagecet passim

Wheeler v. reg Piss ih ee BOERS cedesde 29

Williams v. Georgia, 349 U.S. 375, 75 S.Ct. 814, 99

De EE AED oR nbewb keer vvcdeccebesees

Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30

SAMs MU RETED So iGis whic dubce bed coractedcte

Wynn v.M , 600 F.2d 448 (4th Cir.), cert. den., si

U.S. 950, 100'S.Ct. 423, 62 L.Ed.2d'320 (1979) .. 10

FEDERAL STATUTES AND RULES:

SD TO Ne Fh ha ten ds eh hin Tee des chipeneeis 15

Rule 9, Federal Rules of Habeas Corpus ....... 19, 20, 38

Draft of Proposed Amendments to Rule 9(a)

of the Rules Gov Section 2254 and Section 2255

Proceedings (August 1983) .........sceeeeeeeees 38

Table of Authorities Continued

Page

STATE STATUTES:

N.C. Gen. Stat. §§ 15A-1411 through 15A-1422 ...... 8, 41

Former N.C. Gen. Stat. §§ 15-217 through 15-222 .... 7

Books:

C. Wright, Law or FEDERAL Courts (West 1983) .... 2

L. Yackle, POSTCONVICTION REMEDIES (Cum. Supp. 1983) 2, 5

LAW REVIEW ARTICLES:

Bator, Finality in Criminal Law and Federal Habeas

¢ for State Prisoners, 76 Harv. L. Rev. 441 m

Friendly, /s Innocence Irrelevant? Collateral Attacks on

Criminal Judgments, 38 U. Chi. L. Rev. 142

CEE Radi oucceisacs secu cevesul stivascebeet 19, 36

Gibbons, Waiver: The t for Functional Limitations

on Habeas Corpus Jurisdiction, 2 Seton Hall L. Rev. sf

Goodman and Sallet, Wainwright v. Sykes: The Lower

om Courts Respond, 30 Hastings L.J. 1683 ‘

Hart, Forward: The Time Chart of the Justices, 73 Harv.

ee a SS ere eee 19, 23, 35

Hill, The Forfeiture ge oe Rights in Criminal

Cases, 78 Col. L. Rev. 1050 (1978) ........ 19, 21, 36

Reitz, Federal Habeas C " es % an Abortive

State Proceeding, 74 L. Rev. 1315 (1961) .. 36

Rosenberg, Jettisoning Fay v. Noia: Procedural De-

— by hoag art gece apmeme Counsel, 62

Ae OV. O41 OGD 65 dnc tcnvccveeses 21, 36, 44

Spritzer, Criminal Waiver, Procedural ult and the

Burger Court, 126 U. Pa. L. Rev. 473 (1978) ... 36, 44

Tague, Federal Habeas C. and Ineffective R

tation y eg ag The Supreme Court Has Work To

Do, 31 Stan. L. Rev. 1 (1978) ............. 19, 21, 36

xiv

Table of Authorities Continued

Page

Westen, Away From Waiver: A Rationale for the F orfeit-

ure of Constitutional Rights in Criminal Procedure,

16 Mich. L. Rev. 1214 (1977) |... ccccccccccees 19

Comment, Federal Habeas Corpus Review of

Unintentionally Defaulted Constitutional Claims,

130 U. Pa. L. Rev. 981 (1982) ...... ccc cceceeees

Comment, The Supreme Court: 1981 Term, 96 Harv. L.

Re RS er eR ee 21

Note, Criminal Procedure—The North Carolina Post-

Conviction ety,’ Act: A Procedural Snare, 55

aA SD, Ese! Gata UTD hilt lc o eoes ev vocedn kunt 6, 7

SUMMARY OF ARGUMENT

Although Ross was convicted at an unfair trial in which due

process violations substantially impaired the truth-finding

process, the State contends that his conviction should be up-

held simply because he did not raise the issue on appeal, even

though under state law the issue was adequately preserved at

trial, even though he did appeal, even though the State Su-

preme Court did consider the burden of proof instructions on

its own motion, even though the State Supreme Court has

overlooked and the State has waived the failure to raise the

issue on appeal in similar cases, even though the law establish-

ing the violation had not yet begun to develop and the principle

upon which it was based was not yet available or being urged,

and even though Ross did raise the issue in the state courts as

soon as this Court decided it and held that it applied

retroactively. That contention is not supported by any federal-

ly cognizable policy or any legitimate state interest.

ARGUMENT

ROSS COMMITTED NO PROCEDURAL DEFAULT IN THE

STATE COURTS ADEQUATE TO JUSTIFY DENIAL OF

FEDERAL HABEAS CORPUS.

In Wainwright v. Sykes, 433 U.S. 72 (1977), this Court held

that federal habeas corpus review of a state conviction may be

denied if the petitioner failed to comply with a state procedural

rule at trial, see Engle v. Isaac, 456 U.S. 107, 110 (1982), if that

failure constitutes an adequate and independent state ground

on the basis of which the state courts denied relief.' 433 U.S. at

81. The first questions, therefore, are (a) whether the state had

such a rule, (b) whether the rule was consistently enforced by

imposing a forfeiture, and (c) whether the state courts invoked

' Unless the petitioner shows “cause for and actual prejudice from

the default.” Engle v. Isaac, 456 U.S. 107, 110 (1982). See Argument

Il.

the procedural forfeiture in Ross’ case. 433 U.S. at 85; see also,

Engle v. Isaac, 456 U.S. at 125 n.27; Jenkins v. Anderson, 447

U.S. 231, 234-235 n.1 (1980); Rummel v. Estelle, 445 U.S. 263,

267 n.7 (1980); C. Wright, LAw or FEDERAL Courts 343 (West

1983); L. Yackle, PosTCONVICTION REMEDIES 95-96 (1983 Cum.

Supp.).

A. Ross Committed No Procedural Default At Trial

This case presents no issue of a failure to comply with a state

contemporaneous objection rule. At the time of Ross’ trial,

North Carolina law did not require an objection to an errone-

ous instruction, including an erroneous instruction on the bur-

den of proof. State v. Johnson, 227 N.C. 587, 589, 42 S.E.2d

685, 686 (1946); State v. Gause, 227 N.C. 26, 30, 40 S.E.2d 463,

466 (1946); see Brief for Pet. 8.

B. The North Carolina Supreme Court Decided The Burden

Of Proof Issue On The Merits On Ross’ Appeal

Ross appealed his conviction to the North Carolina Supreme

Court. On that appeal, Ross challenged the instructions at his

trial but not specifically on the burden of proof issue.

Rule 10 of the North Carolina Rules of Appellate Procedure

then provided: “(T)he scope of review on appeal is confined toa

consideration of those exceptions set out and made the basis of

assignments of error in the record on appeal .. . .” The North

Carolina Supreme Court has, however, reviewed the correct-

ness of instructions despite the failure of the defendant proper-

ly to make that issue the basis of an assignment of error in the

record on appeal. £.g., State v. Freeman, 295 N.C. 210, 244

S.E.2d 680, 689 (1978) (“Notwithstanding defendant’s failure

to comply with this rule, we have carefully examined the

charge and we find it to be entirely adequate on proximate

cause.”); State v. Riggsbee, 285 N.C. 708, 208 S.E.2d 656, 662

(1974) (“Despite the failure of the defendant to set out what the

court should have charged, we have carefully examined the

entire charge.”). Indeed, it did exactly that on Ross’ appeal,

holding: “The court charged fully and correctly on the burden

and intensity of the proof required to support each of the

permissible verdicts of guilty. . . . While the defendant did not

point out and assign as error any particular or designated

portion of the charge as required by appellate rules, we have

examined the charge and conclude it is in accordance with legal

requirements and is unobjectionable.” State v. Ross, 275 N.C.

550, 554, 169 S.E.2d 875, 878 (1969).

“(If the state courts have entertained the federal con-

stitutional claims on the merits in a subsequent proceeding,

. . . the federal courts have no discretion to deny the applicant

habeas relief to which he is otherwise entitled.” Lefkowitz v.

Newsome, 420 U.S. 283, 292 n.9 (1975). If the state courts are

not concerned about a procedural default, “a federal court

implies no disrespect for the State by entertaining the claim.”

Ulster County Court v. Allen, 442 U.S. 140, 154 (1979); ac-

cord, Connecticut v. Johnson, 103 S. Ct. 969, 974 n.8 (1983);

Engle v. Isaac, 456 U.S. 107, 135 n.44 (1982) (“If Ohio had

exercised its discretion to consider respondents’ claim, then

their initial default would no longer block federal review.”);

Francis v. Henderson, 425 U.S. 536, 542 n.5 (1976); Mullaney

v. Wilbur, 421 U.S. 684, 688 n.7 (1975); see also, Warden v.

Hayden, 387 U.S. 294, 297 n.3 (1967); Harlin v. Missouri, 439

U.S. 459, 459 (1979); Jenkins v. Georgia, 418 U.S. 158, 157

(1974) (“But whether or not appellant argued this con-

stitutional issue below, it is clear that the Supreme Court of

Georgia reached and decided it. That is sufficient under our

practice.”); NAACP v. Alabama, 377 U.S. 288, 296-301 (1964);

Raley v. Ohio, 360 U.S. 423, 436 (1959) (“There can be no

question as to the proper presentation of a federal claim when

the highest state court passes on it.”); Brown v. Allen, 344

U.S. 443, 486 (1953); Darr v. Burford, 339 U.S. 200, 208 (1950);

Hawk v. Olson, 326 U.S. 271, 278 (1945); Herndon v. Lowry,

301 U.S. 242, 247 (1937); Brown v. Mississippi, 297 U.S. 278,

287 (1936).

That doctrine applies to the present case. Because the State

Supreme Court decided not to impose a procedural bar, tie

State may not insist on one in the federal courts. The critical

circumstance is that the state court considered the issue,

Francis v. Henderson, 425 U.S. 536, 542 n.5 (1976), even

though it obviously did not consider the precise argument

because Mullaney v. Wilbur had not yet been decided. The

procedural failure cannot constitute an independent and ade-

quate state ground for the state court’s decision denying Ross

relief; it was not a ground for the decision at all. See Rummel v.

Estelle, 445 U.S. 263, 267 n.7 (1980); Hockenbury v. Sowders,

620 F.2d 111, 115 (6th Cir. 1980).

C. The North Carolina Superior Court, And Probably The

North Carolina Court Of Appeals As Well, Decided The

Burden Of Proof Issue On The Merits On Ross’ Post-

Conviction Petition.

The State for the first time in this Court has claimed that the

state courts “presumptively” denied Ross’ post-conviction

petition on the basis of his failure to raise the issue on appeal.

- Brief for Pet. 11, 21. The post-conviction trial court, however,

expressly decided the petition on the merits, and the appellate

court denied the petition without explanation.

Ross pursued his post-conviction petition without the assist-

ance of counsel. Brief for Pet. A-3 to A-8. The trial court denied

the petition on the merits on December 29, 1977, saying: “And

the Court having considered the petition with the record in the

case is of the opinion that it states no grounds for relief under

the post-conviction review act.” Brief for Pet. A-5. At that

time, the only avenue for review of such a denial was a petition

for discretionary review in the State Court of Appeals. When

Ross sought such review, the State opposed his petition on the

ground that he had not raised the issue on appeal. Brief for Pet.

A-7. The State Court of Appeals denied certiorari on February

24, 1978 by a summary order, without explaining any basis for

its action. Brief for Pet. A-8.

The State’s request that the Court presume that the deci-

sions were based on a procedural bar is contrary to the ap-

proach preferred by this Court in an analagous situation in

Michigan v. Long, 103 S. Ct. 3469 (1983). In that case, the

Court said that when the decision of a state court “fairly

appears to rest on federal law. . . and when the adequacy and

independence of any possible state law ground is not clear from

the face of the opinion, we will accept as the most reasonable

explanation that the state court decided the case the way it did

because it believed that federal law required it to do so.” Jd. at

3476. That approach is particularly appropriate here because

the State Supreme Court had decided the issue on Ross’

appeal, because—as discussed on pages 6-8—the state courts

entertained this issue on the merits in other cases despite the

same procedural default, because the post-conviction trial

court did decide the merits, and because the State did not raise

the procedural issue until the c2se was before the State Court

of Appeals, when Ross was not represented by counsel and not

given an opportunity to respond. Ulster County Court v.

Allen, 442 U.S. 140, 149-154 (1979); see L. Yackle,

POSTCONVICTION REMEDIES 98 (Cum. Supp. 1983). This is a

question of state law, and this Court should not be asked to

write state law where the state courts have not done so.

D. The North Carolina Courts Have Not Regularly Or Con-

sistently Imposed A Forfeiture For Failure To Raise The

Burden Of Proof Issue On Appeal Before Mullaney Was

Decided.

This Court recently summarized: “Our decisions . . . stress

that a state procedural ground is not ‘adequate’ unless the

procedural rule is ‘strictly or regularly followed.’ Barr v. City

of Columbia, 378 U.S. 146, 149 (1964). State courts may not

avoid deciding federal issues by invoking procedural rules that

they do not apply evenhandedly to all similar claims.” Hathorn

v. Lovorn, 457 U.S. 255, 262-263 (1982). See also, Williams v.

Georgia, 349 U.S. 375, 383 (1955) (“A state court may not, in

the exercise of its discretion, decline to entertain a con-

stitutional claim while passing upon kindred issues raised in

the same manner.”)

(1) The cases in which the North Carolina courts have not

imposed a forfeiture.

(a) On appeal. In State v. Hankerson, 288 N.C. 632, 220

S.E.2d 575 (1975), rev’d on other grounds sub nom. Hankerson

v. North Carolina, 432 U.S. 233 (1977), the North Carolina

Supreme Court entertained the Mullaney issue on the merits

on appeal despite the defendant’s failure to raise it in his record

on appeal, filed shortly before Mullaney was decided. Hanker-

_son was convicted of murder in November, 1974, after instruc-

tions that violated the later decision in Mullaney. He appealed

to the North Carolina Court of Appeals, but did not make any

exception to the burden of proof instructions an assignment of

error in the record on appeal. Jd. That court affirmed the

conviction without discussing the burden of proof issue, but

with one judge dissenting on a different ground. State v. Hank-

erson, 26 N.C. App. 575, 217 S.E.2d 9, 12 (1975). That dissent

entitled Hankerson to an appeal to the North Carolina Su-

preme Court. 220 S.E.2d at 578. This Court decided Mullaney

on June 9, 1975. Hankerson filed his appeal in the North

Carolina Supreme Court on July 31, 1975, still without raising

the burden of proof issue. Jd. On August 19, 1975, Hankerson

moved to add the Mullaney issue to his appeal. Jd. The North

Carolina Supreme Court allowed that motion on September 2,

1975, one week before oral argument. Thus, the North Caroli-

na Supreme Court sensibly entertained the Mullaney issue on

the merits in Hankerson’s appeal despite Hankerson’s failure

timely to raise it in the record on appeal.

(b) On the former post-conviction procedure. From 1951

until 1978 North Carolina post-conviction proceedings were

governed by sections 15-217 through 15-222 of the North Caro-

lina General Statutes. State v. Bush, 307 N.C. 152, 297 S.E.2d

563, 572 (1982); Note, 55 N.C. L. Rev. 653, 660 n.53 (1977).

That covered the time of Ross’ trial, his appeal, and his post-

Mullaney petition for post-conviction relief. That law provided

collateral review in the following circumstances:

“Any person imprisoned ... who asserts that in the

. proceedings which resulted in his conviction there was a

substantial denial a his rights under the Constitution of

ned yee va States . . . may institute a proceeding under

icle.

N.C. Gen. Stat. § 15-217 (repealed 1977); see 55 N.C. L. Rev.

at 660-661 n. 53.

The first decision interpreting that provision was Miller v.

State, 237 N.C. 29, 74 S.E.2d 513 (1953), cert. den., 345 U.S.

930 (1953). The court said the provision was

“enacted to provide an adequate and available post-trial

remedy for persons imprisoned under judicial decrees who

suffered su stantial and unadjudicated deprivations of

their constitutional rights in the original criminal actions

because they were steht ie from claiming such con-

stitutional rights in the original criminal actions by factors

beyond their control.”

74 S.E.2d at 528-529. The proceeding was designed to provid

review, not of ordinary objections or evidentiary issues bt

“only in those instances in which a substantial denial of a

constitutional right has been made to appear.” State v. Cruse,

238 N.C. 53, 76 S.E.2d 320, 324 (1953). Even if the defendant

did not appeal, he could file a post-conviction petition in order

to have the state courts inquire into “whether there was a

substantial denial” of his constitutional rights. Branch v.

State, 269 N.C. 642, 153 S.E.2d 343, 346 (1967); State v.

Graves, 251 N.C. 550, 112 S.E.2d 85, 89 (1960); State v. Hack-

ney, 240 N.C. 230, 81 S.E.2d 778, 783 (1964).

In 1968, in State v. White, 274 N.C. 220, 162 S.E.2d 473

(1968), the North Carolina Supreme Court reaffirmed that

“The Post-Conviction Act provides a defendant ade-

162 S.E.2d at 479. Nevertheless, relying on Jn re Sterling, 63

Cal.2d 486, 47 Cal. Rptr. 205, 407 P.2d 5 (1965), which provided

a state equivalent of Stone v. Powell, 428 U.S. 465 (1976), the

Court refused post-conviction review on a search-and-seizure

ae ee ee

issue, saying: “Errors in a petitioner’s trial which could have

been reviewed on appeal may not be asserted for the first time,

or reasserted, in post-conviction proceedings.” 162 S.E.2d at

480.

The North Carolina Supreme Court has granted relief on the

Mullaney issue in at least one post-conviction petition despite

the failure of the petitioner in that case to have included the

issue in his record on appeal. State v. Hancock, in the Joint

Appendix at 12.* Hancock raised the issue for the first time on

his discretionary appeal to the North Carolina Supreme Court,

after failing to comply with Rule 10 by raising it on his first

appeal to the North Carolina Court of Appeals, and was denied

relief. On his post-conviction petition on the same issue, how-

ever, the State Supreme Court granted Hancock a new trial.

July 1, 1978, but applicable “without regard to when a defend-

ant’s guilt was established or when judgment was entered

against him,” State v. Bush, 297 S.E.2d at 572, North Carolina

replaced its Post-Conviction Hearing Act with a Motion For

Appropriate Relief, N.C. Gen. Stat. §§ 15A-1411 through 15A-

1422. See page 41. The North Carolina Supreme Court has

reviewed on the merits on a Motion for Appropriate Relief at

least one case raising the Mullaney issue. State v. Bush,

supra; see Brief for Pet. 10n.1. In that case, the defendant was

convicted during the month before Mullaney was decided, but

his appeal came after Mullaney, and he did not raise the issue.

In reaching the issue on his motion for appropriate relief the

Court did not even discuss the procedural failure. Thus, it

would appear that Ross’ failure to specify the burden of proof

issue in his record on appeal would not preclude him from

raising it under the Motion for Appropriate Relief proceeding.’

? This decision was unpublished. Respondent is unaware whether

there are other such decisions in this category.

* Having exhausted his state remedies by presenting this issue to

the state courts under the Post-Conviction Hearing Act, if not on

(2) The cases in which the North Carolina courts have

imposed a forfeiture.

In a series of identical brief orders shortly after this Court’s

decision in Hankerson, the North Carolina Supreme Court

denied motions for reconsideration filed by defendants whose

cases had already been decided on appeal, and who were seek-

ing for the first time to raise the Mullaney issue. State v.

Riddick, 293 N.C. 261, 247 S.E.2d 234 (1977); State v. May,

293 N.C. 261, 247 S. E.2d 234 (1977); State v. Jackson, 293N.C.

260, 247 S. E.2d 234 (1977); State v. Crowder, 293 N.C. 259, 243

S.E.2d 143 (1977); State v. Brower, 293 N.C. 259, 243 S.E.2d

143 (1977). In each case, the Court explained its rationale as

follows:

“Inasmuch as defendant did not assign as error on appeal

. .. he was waived his right now to complain about such

errors. Hankerson v. North Carolina, U.S. 233, 244,

n.8 (1977).”

The noteworthy aspect of those decisions is that they cited no

North Carolina authority. Instead, they cited only the dictum

in footnote 8 of this Court’s decision in Hankerson: “The

States, if they wish, may be able to insulate past convictions by

enforcing the normal and valid rule that failure to object to a

jury instruction is a waiver of any claim of error.” Hankerson

v. North Carolina, 432 U.S. at 244 n.8. That footnote did not,

however, purport to establish a federal rule of forfeiture for

state courts. Presumably, it referred to the Wainwright v.

Sykes adequate and independent state ground doctrine, which

would honor any state-law based forfeiture subject to the

cause-and-prejudice exception. The forfeiture must be pro-

vided by state law, however, see Rezin v. Wolff, 439 U.S. 1108

(1979) (White, J., dissenting from denial of certiorari), and the

North Carolina Supreme Court invoked no state law in support

appeal, Ross is not required to present it to them again under the new

Motion for Appropriate Relief procedure before being able to pursue

it on federal habeas corpus. Francisco v. Gathright, 419 U.S. 59, 62

(1974); Wilwording v. Swenson, 404 U.S. 249, 250 (1971).

of its rulings. No North Carolina court did so until the North

Carolina Court of Appeals issued its published opinion on June

6, 1978 in State v. Abernathy, 36 N.C. App. 527, 244 S.E.2d696

(1978), three and one-half months after it summarily rejected

Ross’ post-conviction petition.

(3) These cases confirm that the North Carolina courts

decided Ross’ post-conviction petition on the merits

and that the North Carolina courts have not regularly

imposed a procedural forfeiture on this issue.

Hankerson, Hancock and Bush demonstrate that Rule 10 is

not regularly enforced by a forfeiture. Moreover, in Wynn v.

Mahoney, 600 F.2d 448 (4th Cir.), cert. den., 444 U.S. 950

(1979), North Carolina waived the procedural bar that it now

chooses to assert. As the Fourth Circuit noted in that case:

“We have no occasion to decide the Wainwright question since

North Carolina explicitly waived that point in oral argument of

this appeal.” Jd. at 450 n.1.

The State has attempted to distinguish Hankerson and Han-

cock on the ground that those defendants raised the issue while

their cases were still pending on appeal, although not in timely

fashion. Brief for Pet. 12. That explanation takes no account of

Bush or of the State’s waiver of the procedural bar in Wynn v.

Mahoney. Moreover, it overlooks the fact that both the North

Carolina appellate rules and the Hankerson principle of

retroactive application of Mullaney accord no significance to

raising an issue in the twilight of the appeal stage rather than

the dawning of a post-conviction challenge. Rule 10 required

the issue to be “made the basis of assignments of error in the

record on appeal.” The North Carolina Supreme Court did not

enforce that rule by a forfeiture in Hankerson, Hancock or

Bush. There is no equitable basis for imposing against Ross a

procedural bar that was expressly not applied against Hanker-

son, Hancock, Bush or Wynn when they were similarly situ-

ated. Moreover, this Court held that Mullaney is fully retroac-

tive, not just to cases still pending on appeal. Cf., United States

v. Johnson, 457 U.S. 537, 562, 562 n.21 (1982).

THE COURT OF APPEALS CORRECTLY HELD THAT,

CONSIDERING ALL THE CIRCUMSTANCES, ROSS

DEMONSTRATED CAUSE FOR HIS FAILURE TO

CHALLENGE THE BURDEN OF PROOF INSTRUCTIONS

ON HIS PRE-WINSHIP APPEAL SO THAT HE WAS

ENTITLED TO FEDERAL HABEAS CORPUS RELIEF

FROM HIS CONSTITUTIONALLY UNRELIABLE

CONVICTION.

A state petitioner may obtain federal habeas corpus relief

despite a procedural default if he shows “cause for and actual

prejudice from the default.” Engle v. Isaac, 456 U.S. at 110;

Wainwright v. Sykes, 483 U.S. at 87, 90-91. The “cause” prong

of that standard may be satisfied by a single circumstance such~.

as, in this case, that the constitutional principle developag only

after the time that the petitioner was required to raise the

issue. The “cause” analysis may also take account of all the

circumstances in the case. The Court of Appeals employed that

approach in this case.

A. The Constitutional Violation Substantially Impaired The

Truth-Finding Process At Ross’ Trial.

The trial court’s instructions imposing on Ross rather than

the prosecution the burden of persuasion on the issues of

malice and self-defense denied Ross due process of law. Mul-

laney v. Wilbur, supra; State v. Hankerson, 220S.E.2d at 584;

see also, Engle v. Isaac, 456 U.S. at 122. In Hankerson v.

North Carolina, this Court said that the constitutional prohibi-

tion against shifting this burden of proof to the defendant “was

designed to diminish the probability that an innocent person

would be convicted and thus to overcome an aspect of acriminal

trial that ‘substantially impairs the truth-finding function.’ ”

432 U.S. at 242. “In all kinds of litigation it is plain that where

the burden of proof lies may be decisive of the outcome.”

Speiser v. Randall, 357 U.S. 518, 525 (1958). “[Tyhe

reasonable-doubt standard ‘is a prime instrument for reducing

the risk of convictions resting on factual error.’” Jvan V. v.

New York, 407 U.S. 208, 204 (1972). The constitutionally erro-

neous instruction by the trial court “ ‘raises serious questions

about the accuracy’ ” of the jury’s verdict. Hankerson v. North

Carolina, 432 U.S. at 243.

In Engle, this Court held that Sykes applies to issues relat-

ing to the truthfinding function. 456 U.S. at 129. Nevertheless,

the Court added that “the nature of a constitutional claim may

affect the calculation of cause and actual prejudice.” /d.; see

also, Rushen v. Spain, 1048. Ct. 453, 458-459 (1983) (Stevens,

J., concurring ); Rose v. Lundy, 455 U.S. 509, 544, 546-547, 548

n.17 (1982) (Stevens, J., dissenting); Wainwright v. Sykes,

supra at 96 (Stevens, J., concurring); Stone v. Powell, 428

U.S. 465, 479 (1976); Schneckloth v. Bustamonte, 412 U.S.

218, 257-258 (1973) (Powell, J., with Burger, U. J. and Rehn-

quist, J., concurring); Kaufman v. United States, 394 U.S.

217, 234, 235-236 (1969) (Black, J., dissenting); Price v. John-

ston, 334 U.S. 266, 291 (1948). In Wainwright v. Sykes, the

Court expressed confidence that this procedural obstacle will

not prevent the federal courts from using habeas corpus to

protect a defendant who would otherwise be “the victim of a

miscarriage of justice.” 433 U.S. at 91. In Engle, the Court

agreed “that victims of a fundamental miscarriage of justice

will meet the cause-and-prejudice standard.” 456 U.S. at 135.

The State has conceded that Ross suffered prejudice at his trial

from the constitutional violation. See Brief for Pet. 17; Brief

for United States 4.

B. The Unavailability Of A Constitutional Claim Because

The Precedential Tools For Constructing It Had Not Yet

Begun To Develop Constitutes “Cause” For The Failure

Timely To Raise The Claim.

Counsel plays an important role in the adversary system.

Proper functioning of that system requires committing the

conduct of the defense to counsel in consultation with the

defendant. See Jones v. Barnes, 108 S.Ct. 3308, 3313 and n.6

(1983); Wainwright v. Sykes, supra at 92, 93-94 (Burger, C. J.,

concurring); id. at 98 (White, J., concurring). Institutional

necessities mean that defendants are often bound by the ac-

tions and judgments of their attorneys. Litigation cannot be

replayed to test alternative strategies. Thus, tactical decisions

by defense counsel cannot be “cause” for the failure to pursue a

different course. Gardner v. Florida, 430 U.S. 349, 361 (1977);

Estelle v. Williams, 425 U.S. 501, 508 n.3, 514-515 (1976);

Humphrey v. Cady, 405 U.S. 504, 517 (1972); Sunal v. Large,

322 U.S. 174, 181 (1947). That standard situation, where coun-

sel makes decisions that are committed to his or her responsi-

bility, occupies the expansive middle ground in the spectrum of

procedural failures diagrammed in Exhibit A. At one extreme

are cases in which the attorney acts or fails to act as a result of

(i) incompetence, (ii) gross negligence, or (iii) inadvertence,

negligence, or lack of due diligence. The quality of the criminal

defense bar has not yet reached the stage where the courts can

totally ignore the hardships of defendants who stand to lose

important constitutional rights as a result of the ineffective

assistance of counsel. See generally, Carrier v. Hutto, _—

F.2d —__ (4th Cir. 1983). That is not the issue in this case,

however.

The problem in this case arises at the other end of the

spectrum: Ross failed to raise the constitutional issue because

it was not yet available; not even the precedential tools to

construct it had yet been developed. He and his attorney made

no judgment about the issue; they were understandably una-

ware that there was an issue to decide about. The State makes

no claim that they gave it any thought or that they entertained

any strategic or tactical considerations. In this situation, coun-

sel is not a meaningful safeguard. Therefore, the unconstitu-

tionally severe hardship to Ross cannot be overlooked simply

because he had counsel.

The Solicitor General argues that the contemporary un-

availability of a later decision establishing a new constitutional

principle that is retroactively applicable should never con-

stitute “cause.” Brief for United States 17. That position

ignores the unanimous support for this basis for “cause” in

several decisions of this Court, the opinions of other courts,

considerable scholarly commentary, analogous provisions of

the Federal Rules, and even the Administration’s legislative

proposals that have recently passed in the Senate.

(1) The decisions of this Court. In Engle, this Court sug-

gested that a change in the law might constitute “cause” for the

failure of a criminal defendant to raise the claim before the law

had developed “the tools to construct their constitutional

claim.” 456 U.S. at 133. The Court did not decide that question,

however, because it found that “respondents’ claims were far

from unknown at the time of their trials.” 456 U.S. at 131. In

Wainwright v. Sykes, Justice White, in a concurring opinion,

wrote that “ignorance of the applicable rules . . . would be

sufficient to excuse the failure to object to evidence offered

during trial.” 433 U.S. at 99; see also, id. at 98 (“if counsel is

aware of the facts and the law”). The circumstance that the

applicable law had not yet begun to develop is the most reason-

able explanation for counsel to be unaware of it.

Several decisions of this Court have recognized that it would

be improper to deny a retroactive new constitutional decision

to a litigant because of failure to assert it before it was reason-

ably available. Those pronouncements were not made pur-

suant to the cause-and-prejudice test. Their perception of the

equities in the treatment of a retroactive change in the law,

however, is equally applicable today.

The most recent instructive statement by this Court came in

O’Connor v. Ohio, 385 U.S. 92 (1966). See Anders v. Califor-

nia, 386 U.S. 738, 743 (1967). The defendant contended that

the prosecutor’s comment upon his failure to testify violated

Griffin v. California, 380 U.S. 609 (1965), which was decided

after he had exhausted his state appeals without raising the

issue. The Court unanimously held “that in these circum-

stances the failure to object in the state courts cannot bar the

petitioner from asserting this federal right. . . . Defendants

can no more be charged with anticipating the Griffin decision

than can the States. . . . Thus, his failure to object to a practice

which Ohio had long allowed cannot strip him of his right to

attack the practice following its invalidation by this Court.”

385 U.S. at 93; see United States v. Johnson, 457 U.S. 537, 543

(1982).

In Smith v. Yeager, 393 U.S. 122 (1968), the defendant,

convicted of murder in state court, sought federal habeas cor-

pus on the basis of an allegedly involuntary confession before

this Court’s decision in Townsend v. Sain, 372 U.S. 293 (1963).

At that time the law provided an evidentiary hearing only in

“unusual circumstances’,” and it was doubtful that the de-

fendant could have got one. 393 U.S. at 125. His attorney told

the District Court that he did not need one, and the District

Court found that his confession was not involuntary. After

Townsend;the defendant again sought federal habeas corpus

on the same ground. This time he requested an evidentiary

hearing, alleging new facts making a stronger case for coercion

in connection with his confession. The District Court denied

that request on the basis of his first petition. This Court re-

versed, explaining that it could not find that the defendant

“intentionally relinquished a known right or privilege .

when the sh or privilege was of doubtful existence at the

time. ” 393 U.S. at 126.

In Davis v. United States, 417 U.S. 333 (1974), this Court

upheld “the availability of collateral relief from a federal crimi-

nal conviction based upon an intervening change in substantive

law.” Id. at 334. Davis involved a conviction for draft evasion.

The defense was one that this Court later recognized in Gutk-

necht v. United States, 396 U.S. 295 (1970), but the Court of

Appeals denied the defendant relief on the basis that his case

did not come within Gutknecht. Thereafter, the Court of

Appeals decided another case in a contrary manner, but re-

fused to give the defendant the benefit of that change in circuit

law when he brought a petition under 28 U.S.C. section 2255.

This Court reversed, holding that the defendant was entitled

to base his claim for collateral relief on “an intervening change

in law.” Jd. at 342; see also, id. at 347 (Powell, J., concurring

and dissenting) (section 2255 is available “due to the interven-

ing change in the law of the Circuit”).

Davis may be compared with an earlier draft evasion case,

Sunal v. Large, 332 U.S. 174 (1947). In Sunal, the defendants

raised a defense that this Court upheld after their trial in Estep

v. United States, 327 U.S. 114 (1946). Defendants were repre-

sented by the same attorneys who were handling the Estep

case in the appellate process at the time, but they did not

appeal. When they later sought to attack their convictions

collaterally, this Court denied them relief. The Court first

speculated that the defendants’ failure to appeal may have

been a deliberate litigation tactic: “Why the legal strategy

counseled taking appeals in the . . . Estep cases and not in

these we do not know. Perhaps it was based on the facts of

these two cases.” 332 U.S. at 18i. The Court proceeded to deny

relief on a rationale similar to that in Engle, explaining: “The

case, therefore, is not one where the law was changed after the

time for appeal had expired. It is rather a situation where at

the time of the convictions the definitive ruling on the question

of law had not crystallized.” Jd. Thus, the Court implied that it

would excuse a default “where the law was changed after the

time for appeal had expired,” but it said that not only was the

,basis for the new law already available, but the defendants’

attorneys were presenting the claim at that very time in other

cases. The Court emphasized that the defendants were not

claiming that they had suffered a violation of due process and

that the error did not “trench on any constitutional rights of

defendants.” 332 U.S. at 182. In Davis, the Court said that

Sunal “recognized that this rule would not bar the assertion of

constitutional claims in collateral proceedings even if the ap-

plicant had failed to pursue them on appeal.” 417 U.S. at 345

n.15.*

An analagous situation was presented in Reece v. Georgia,

350 U.S. 85 (1955). In that case, the defendant tried to chal-

‘Justice Frankfurter dissented in Sunal, saying that he would

have allowed habeas corpus because these were exceptional circum-

stances. Justices Rutledge and Murphy also dissented, saying that

the change in law established a good reason for defendants’ failure to

appeal.

lenge the grand jury that indicted him. State law required such

a challenge to be made before indictment, but the defendant

did not have counsel appointed to represent him until the day

after his indictment.* This Court therefore agreed to entertain

the issue on the merits on direct review: the obligation to

comply with the state rule, the Court reasoned, “presupposes

an opportunity to exercise that right.” 350 U.S. at 89; accord,

Carter v. Texas, 177 U.S. 442 (1900).

Thus, the Court has regularly recognized that a change in

the law is an adequate excuse for failing to raise an issue before

the change became effectively available. See also, Estelle v.

Williams, 425 U.S. 501, 515 (1276) (we need not allow “counsel

for a defendant deliberately to forgo objection to a curable trial

defect, even though he is aware of the factual and legal basis for

an objection . . . .”); Johnson v. Bennett, 393 U.S. 253, 255

(1968) (discussed at page 27); Sanders v. United States, 373

U.S. 1, 17 (1962) (“If purely legal questions are involved, the

applicant may be entitled to a new hearing upon showing an

intervening change in the law. . . .”); Brown v. Allen, 344

U.S. 448, 486 (1953) (“failure to raise a known and existing

question of unconstitutional proceeding.”). Price v. Johnston,

334 U.S. at 291 (“The primary purpose of a habeas corpus

proceeding is to make certain that a man is not unjustly impris-

oned. And if for some justifiable reason he was previously

unable to assert his rights or was unaware of the significance of

relevant facts, it is neither necessary nor reasonable to deny

him all opportunity of obtaining judicial relief’); New York

Central R. Co. v. New York and Pa. Co., 271 U.S. 124, 127

(1926); Davis v. Wechsler, 263 U.S. 22, 24 (1923) (“(T)he asser-

tion of federal rights, when plainly and reasonably made, is not

to be defeated under the name of local practice.”); see also,

Staud v. City of Baxley, 355 U.S. 313, 318-319 (1958). Over the

years no Justice has expressed a contrary view. In Engle, the

5 Ross’ handicap was similar: he did not have available the legal

principle that made his right to counsel meaningful until the day for

him to raise the issue on appeal had passed.

Court seemed to agree with this position. Referring to footnote

8 in Hankerson, the Court said: “In these cases we accept the

force of that language as applied to defendants tried after

Winship.” 456 U.S. at 134 n.43.

(2) The decisions of other courts and law review comments.

Other courts® and commentators’ have reached a unanimous

consensus that a retroactive change in the law is a paradigm

example of “cause” for failure to raise an issue in accordance

with a state procedural rule. Neither the State nor the Solicitor

General has referred to a single authority to the contrary.

6 Third Circuit: Boyer v. Patton, 579 F.2d 284, 288 (3d Cir. 1978);

see also, United States ex rel. Caruso v. Zelinsky, 689 F.2d 435, 443,

444 (3d Cir. 1982); Fourth Circuit: Ross v. Reed, 704 F.2d 705,

708-709 (4th Cir. 1983) (the decision below); Ledbetter v. Warden, 368

F.2d 490, 494 (4th Cir. 1966) (en banc); see also, Bramwell v. Wil-

liams, 445 F. Supp. 106, 114 (D. Md. 1977); Fifth Circuit: Preston v.

Maggio, 705 F.2d 113, 117 (Sth Cir. 1983); Sixth Circuit: Canary v.

Bland, 583 F.2d 887, 890 (6th Cir. 1978); see also, id. at 894 (Merritt,

Cir. J., concurring) (“He has shown ‘cause’ in that the applicable

opinions upon which he relies had not been decided nor could reason-

ably have been anticipated at the time . . . .”) Seventh Circuit: Nor-

ris v. United States, 687 F.2d 899, 903 (7th Cir. 1982) (dictum) (“In

some cases there may be a good reason for this weird procedure

{failing to raise an issue on appeal}—such as incompetency of counsel

in the first appeal, newly discovered evidence, or an intervening

change in the law—and if so the appellant will be able to demonstrate

good cause for his failure. . . .”); Eighth Circuit: Collins v. Auger,

577 F.2d 1107, 1110 n.2 (8th Cir. 1978), cert. den., 439 U.S. 1133

(1979); see also, Dietz v. Solem, 677 F.2d 672, 675 (8th Cir. 1982);

Ninth Circuit: Gibson v. Spalding, 665 F.2d 863, 866 (9th Cir. 1981),

vacated for reconsideration in light of Engle, 456 U.S. 962 (1982), on

remand, 703 F.2d 363 (9th Cir. 1983); Myers v. Washington, 646 F.2d

355, 359, 360 (9th Cir. 1981) vacated for reconsideration in light of

Engle, 456 U.S. 921 (1982), on remand, 702 F.2d 766 (9th Cir. 1983)

(None of the Sykes considerations “has any force in dealing with a

situation . . . where the alleged procedural default consists of failure

to raise on appeal constitutional issues that were unknown at the time

the appeal was taken.”); Eleventh Circuit: Sullivan v. Wainwright,

(3) The Federal Rules. Rule Xa) of the Federal Rules of

“labeas Corpus presents a comparable situation. Rule %a)

provides:

“A petition may be dismissed if it appears that the state

has been prejudiced in its ability to respond to the petition

by delay in its filing unless the petitioner shows that it is

695 F.2d 1306, 1308-1311 (11th Cir. 1983); see also, Ford v. Strick-

land, 696 F.2d 804, 817 (11th Cir. 1983) (en banc); id. at 883 n.9

(concurring and dissenting opinion); West Virginia: Jones v. War-

den, 241 S.E.2d 914, 916 (W. Va. 1978) (“Safeguarding the integrity

of the factfinding process must take priority over procedural con-

cerns such as whether a trial lawyer could perceive future United

States Supreme Court rulings and object to acts or instructions on

the basis of constitutional infirmities yet unborn.”).

’E.g., Bator, “Finality in Criminal Law and Federal Habeas Cor-

pus for State Prisoners,” 76 Harv. L. Rev. 441, 460 (1963)

(recommending a limitation “placing on the prisoner the obligation to

make his allegations within a reasonable time after they have become

available to him.”); Friendly, “Is Innocence Irrelevant? Collateral

Attacks on Criminal Judgments,” 38 U. Chi. L. Rev. 142, 153 (1970)

(“New constitutional developments relating to criminal procedure

are another special case.”) Goodman and Sallet, “Wainwright v.

Sykes: The Lower Federal Courts Respond,” 30 Hastings L.J. 1683,

1712 (1970); Hart, “Foreword: The Time Chart of the Justices,” 73

Harv. L. Rev. 84, 112 n.81 (1959) (“excusable ignorance of facts or

law”); Hill, “The Forfeiture of Constitutional Rights in Criminal

Cases,” 78 Col. L. Rev. 1050, 1078 n. 160 (1978) (“The decision of the

Court to make its new rule retroactive would be reduced to a mocke-

ry if the right of the prisoner depended on foresight of counsel in

anticipating the new constitutional development.”); Tague, “Federal

Habeas Corpus and Ineffective Representation of Counsel: The Su-

preme Court Has Work To Do,” 31 Stan. L. Rev. 1, 25 (1978);

Westen, “Away From Waiver: A Rationale for the Forfeiture of

Constitutional Rights in Criminal Procedure,” 75 Mich. L. Rev. 1214,

1245 (1977) (“(Df a newly recognized defense is constitutionally

retroactive, a defendant who was convicted in the past is con-

stitutionally entitled to raise the claim now as a defense to his convic-

tion.”)

based on grounds of which he could not have been aware

by the exercise of reasonable diligence before the circum-

stances prejudicial to the state occurred.”

The Advisory Committee Note to that Rule, 28 U.S.C.A. foll.

§ 2254 at 1138, specifies: “The Petitioner is held to a standard

of reasonable diligence. Any inference or presumption arising

by reason of the failure to attack collaterally a conviction may

be disregarded where (1) there has been a change oflaw ... .”

Rule 9(b) provides for the dismissal of successive petitions if

there is an “abuse of the writ.” Here again the Advisory

Committee Note, 28 U.S.C.A. foll. § 2254, at 1139, specifies:

“There are instances in which petitioner’s failure to assert a

ground in a prior petition is excusable. A retroactive change in

the law and newly discovered evidence are examples.”

(4) Reagan Administration proposals in Congress to de-

fine “cause.” The United States Senate on February 6, 1984 by

a vote of 67-9 passed the Reform of Federal Intervention in

State Proceedings Act, S. 1763, 98th Cong. That bill defines

“cause” in three circumstances. One of those circumstances is if

“the Federal right asserted was newly recognized by the Su-

preme Court subsequent to the procedural default and is

retroactively applicable.” That bill was sponsored ‘sy the Ad-

ministration. Thus, the Administration’s legislative program

*The courts have frequently used a change in the law to excuse

delayed or successive petitions. See Alerander v. Maryland, 719

F.2d 1241, 1246 (4th Cir. 1983); Garland v. Cox, 472 F.2d 875, 877

(4th Cir.), cert. den. sub nom. Slayton v. Garland, 414 U.S. 908

(1973); Marks v. Estelle, 691 F.2d 730, 733, 735 (5th Cir. 1982) (“In

effect, the state argues that Marks should have brought Argersinger

before Argersinger was brought—that he was bound to assert a

constitutional right he did not have. This would require a degree of

diligence much higher than reasonable. . . . It would be palpably

unfair to require a habeas petitioner to assert a constitutional right

before that right exists.”); McDonnell v. Estelle, 666 F.2d 246, 253

(5th Cir. 1982). See Antone v. Dugger, 104 S.Ct. 962, 965 (1984).

and the Senate’s action are contrary to the Solicitor General’s

position.’

C. The Reason For Ross’ Failure To Raise The Issue On

Appeal Was That His Appeal Had Been Decided By The

Time Winship Laid The Basis For His Constitutional

Claim And Before Any Lawyers, Courts Or Commenta-

tors Had Perceived Or Litigated The Issue.

(1) The test for a change in the law. The reasons for

recognizing a change in the law in the calculation of “cause” are

equitable and institutional. The equitable reason is the unfair-

ness of depriving a defendant of a newly declared principle of

due process that applies retroactively to his trial solely because

he did not preserve the issue at a time before it was reasonable

to expect him to be aware of the issue. Sustaining his unconsti-

tutional conviction for conduct that it was not reasonably possi-

ble for him to avoid would have the appearance of a penalty”

that would be “disproportionate to the magnitude of the

offense against the state’s procedural system.”"

* An earlier version of the Administration proposal, S. 2216, 97th

Cong., defined “cause” to exist where “the Federal right asserted

was not recognized prior to the procedural default.” Another Admin-

istration bill introduced during the same Congress, S. 2903, 97th

Cong., contained a definition of “cause” in the identical language of

the bill passed by the Senate on February 6. Analogous bills in-

troduced into the House would make the same provision. H.R. 3416,

97th Cong.; H.R. 6050, 97th Cong.; H.R. 7117, 97th Cong.; H.R. 50,

98th Cong.

See Hill, “The Forfeiture of Constitutional Rights in Criminal

Cases,” 78 Col. L. Rev. 1050, 1064 (1978); Rosenberg, “Jettisoning

Fay v. Noia: Procedural Defaults by Reasonably Incompetent Coun-

sel,” 62 Minn. L. Rev. 341, 414 (1978); Tague, “Federal Habeas

and Ineffective Representation of Counsel: The

Court Has Work To Do,” 31 Stan. L. Rev. 1, 42 (1978); Comment, 130

U. Pa. L. Rev. 981, 984 (1982); “The Supreme Court, 1981 Term,” 96

Harv. L. Rev. 1, 226 (1982).

"Hill, “The Forfeiture of Constitutional Rights in Criminal

Cases,” 78 Col. L. Rev. 1050, 1071 (1978).

The institutional reason was described in Engle: “We might

hesitate to adopt a rule that would require trial counsel either

to exercise extraordinary vision or to object to every aspect of

the proceedings in the hope that some aspect might mask a

latent constitutional claim.” 456 U.S. at 131; see Ross v. Reed,

704 F.2d at 708; see also, Jones v. Barnes, 103 S.Ct. at 3312-

3313; Myers v. Washington, 646 F.2d 355, 360 (9th Cir. 1981),

vacated, 456 U.S. 921 (1982), on remand, 702 F.2d 766 (9th Cir.

1983). The problem is even more acute for appeals. Trials

accomodate a multitude of objections of varying degrees of

import that would clutter an appeal. Appellate counsel should

screen out frivolous issues. An automatic forfeiture rule, how-

ever, would deprive counsel of the flexibility to make judg-

ments about the relative likelihood of success of issues in light

of the reasonably available or developing law at the time.”

2 Conscientious counsel already are reacting to the extension by

some Courts of Appeals of Wainwright v. Sykes to appeals by trying

to preserve all conceivable issues. See, e.g., State v. Brown, 306 N.C.

151, 293 S.E.2d 569, 583 (1982) (“Counsel acknowledges that many of

these issues have been previously addressed and candidly concedes

that he would have to ‘overcome substantial precedent’ in order to

prevail. Without unduly burdening this Court with extended argu-

ment defendant requests that we review these issues and reconsider

our prior holdings.”); State v. Sparks, 297 N.C. 314, 255 S.E.2d 373,

376 (1979) (“Defendant has sought to bring forward over 200 excep-

tions... .”)

Even such efforts by defense counsel will not raise unforeseen

constitutional doctrines that receive subsequent development unless

they also exercise “extraordinary vision.” Engle v. Isaac, 456 U.S. at

131.

The North Carolina Supreme Court has already expressed resent-

ment over this practice which appears necessary unless the Wain-

wright “cause” standard allows counsel to select the most

issues for review, see Jones v. Barnes, 103 S.Ct. at 3313, without

risking the automatic forfeiture of others that future decisions might

enhance. For example, in State v. Warren, _. N.C. — _., 306 ~

These two reasons inform the formulation of the test for

what constitutes a change in the law. The question should be

whether the state of the law at the time was such that counsel’s

unawareness of the issue was “excusable.” Engle v. Jsaac, 456

U.S. at 130 n.35; Wainwright v. Sykes, 433 U.S. at 89 n.13;

Estelle v. Williams, 425 U.S. at 513 (Powell, J., concurring);

Hart, Foreward: The Time Chart of the Justices, 73 Harv. L.

Rev. 84, 118 (1959), or a “justifiable reason.” Price v. John-

ston, 334 U.S. at 291. Thus, Engle held that the standard was

not met where the claim was “far from unknown,” 456 U.S. at

131, and where “other defense counsel have perceived and

litigated that claim.” 456 U.S. at 134; cf., Estelle v. Williams,

425 U.S. at 511-512 n.8. The Solicitor General agrees that

“(t)he only certain standard would be to say that a claim is no

longer novel once it has been ‘perceived and litigated’... . in

any reported case.” Brief for the United States 25.

An appropriate analogy is the test for whether a decision

announced a “new rule” for the purpose of the retroactivity-

S.E.2d 446, 448 (1983), that Court said: “Defendant challenges the

process of death qualifying the jury and assigns as error the trial

court’s denial of his motion for a separate trial jury and a separate

sentencing jury. This Court has consistently rejected defendant’s

contentions.” 306 S.E.2d at 448. Then, quoting from Jones v. Barnes,

the Court criticized counsel for raising the issue after the Court had

rejected it in earlier cases. 306 S.E.2d at 448. The issue that the

Court criticized counsel for raising is an important one that holds

promise of ultimately deserving the attention of this Court, however,

and has since that decision won favor in Avery v. Hamilton, __ F ..

Supp. _. (W.D. N.C. 1984) and Grigsby v. Mabry, 569 F. Supp.

1273 (E.D. Ark. 1983), appeal pending, No. 83-2113. See also, State

v. Jackson, 309 N.C. 26, 306 S.E.2d 703, 708 n.1 (1983); State v.

Pinch, 306 N.C. 1, 292 S.E.2d 208, 212 (1982) (“Defendant brings

forward many assignments oferror .. . . At the outset, we must note

that defendant's appellate counsel filed a brief which is 109 pages

long. A defendant who stands convicted in a capital case is, of course,

entitled to effective and diligent advocacy in the presentation of his

appeal. —" defendant's brief seems unduly lengthy and quite

repetitious.”).

prospectivity question. That determination serves parallel

purposes of protecting equitable (the reliance factor) and in-

stitutional concerns on the part of the states. In United States

v. Johnson, this Court recently summarized the three categor-

ies of “new rules” for this purpose: (i) “(A) decision explicitly

overrules a past precedent of this Court.” 457 U.S. at 551; see

also, id. at 550 n.12. (ii) A decision “disapproves a practice this

Court arguably has sanctioned in prior cases.” /d. at 551. (iii) A

decision “overturns a longstanding and widespread practice to

which this Court has not spoken, but which a near-unanimous

body of lower court authority has expressly approved.” /d.;

see also, id. at 550 n.12 (“‘or by deciding an issue of first

impression whose resolution was not clearly foreshadowed’ ”).

(2) Engle did not meet the test for a change in the law. The

respondents in Engle were convicted in separate trials in Janu-

ary, April and September, 1975. As this Court found, there

was a substantial legal foundation in existence by that time

that should have alerted them to the issue. That foundation

consisted of the following:

(i) The principal component was Jn re Winship, 397 U.S.

358 (1970). As the Court said in Engle: “In re Winship. . . laid

the basis for their constitutional claim.” 456 U.S. at 131.

Winship was decided more than four years before the trials in

that case

(ii) Between the time of the decision in Winship and the

respondents’ trials “dozens of defendants relied upon this lan-

guage [in Winship] to challenge the constituionality of rules

requirng them to bear a burden of proof.” 456 U.S. at 131-132.

Those cases involved the burden of proof not only with regard

to elements of the offense charged such as the mental element

for the crime (e.g., lack of intent to return a stolen item).and the

identify of the defendant as the perpetrator (alibi), but also a

range of affirmative defenses including insanity, eg oye

license or authorization to sell drugs, inducement,

malice, and, most , the issue involved in all three

cases in Engle, 456 U.S. at 182 n.40.

(iii) “(N)umerous courts agreed that the Due Process

Clause required the prosecution to bear the burden of disprov-

ing certain affirmative defenses.” 456 U.S. at 133. Indeed,

Mullaney had already been decided at the District Court and

Court of Appeals levels and was pending before this Court.

The trial in one of the three cases in Engle actually took place

three months after this Court’s decision in Mullaney.

(iv) “Several commentators also perceived that Winship

might alter traditional burdens of proof for affirmative de-

fenses.” 456 U.S. at 133 n. 40. These materials were published

between 1970 and 1974.

(v) Ohio had adopted a new criminal code that put the

burden of persuasion for affirmative defenses on the prosecu-

tion. 456 U.S. at 111.

(3) This case does meet the test for a change in the law. At

the time of Ross’ appeal, none of that material existed. See

Exhibit B. Winship “laid the basis,” 456 U.S. at 131, for Ross’

constitutional claim only after he had concluded his appeal.

(i) Although until Winship and Mullaney, it had “long

been assumed that proof of a criminal charge beyond a reason-

able doubt is constitutionally required,” Winship, 397 U.S. at

362, it had also been “the long accepted rule. . . that it was

constitutionally permissible to provide that various affirma-

tive defenses were to be proved by the defendant.” Patterson

v. New York, 432 U.S. 197, 211 (1977). In Leland v. Oregon,

343 U.S. 790, 797 (1952), the Court had upheld a state proce-

dure putting on the defendant the burden of proving his in-

sanity defense beyond a reasonable doubt. That decision was

the prevailing constitutional law regarding the allocation of the

burden of proof on affirmatve defenses until Winship began to

cast doubt on it. See State v. Wilbur, 278 A.2d 139, 146 (Me.

1971).

Winship “held for the first time that the Due Process Caluse

of the Fourteenth Amendment protects a defendant in a crimi-

nal case against conviction ‘except upon proof beyond a reason-

able doubt of every fact necessary to constitute the crime with

which he is charged.’ ” Jackson v. Virginia, 443 U.S. 307, 315

(1979) (emphasis added); see also, id. at 317-318 (“Winship. . .

established proof beyond a reasonable doubt as an essential of

Fourteenth Amendment due process”.). The constitutional

character of the standard of proof beyond a reasonable doubt

was “announced in Winship.” Ivan V. v. New York, 407 U.S.

203, 205 (1972); see also, Cool v. United States, 409 U.S. 100,

104 (1972). In Patterson, the Court described the process of

decision: “In 1970, the Court declared that the Due Process

Clause ‘protects the accused against conviction except upon

proof beyond a reasonable doubt... . /n re Winship... . Five

years later, in Mullaney v. Wilbur, ... the court further

announced .. . .” 432 U.S. at 204-205.

In Mullaney, the Court stated the issue as whether Maine

law “comports with the due process requirement, as defined in

In re Winship.” 421 U.S. at 685. In its discussion, the Court

based its decision on Winship. 421 U.S. at 698-701. Justice

Rehnquist, joined by Chief Justice Burger, agreed in a con-

curring opinion that Winship required the Court’s — 421

U.S. at 705.

In Engle, this Court noted that even before Winship one

federal court of appeals and one state court had decided that

the constitution requires the prosecution in a criminal case to

bear the burden of proof on the elements of the crime. The

federal case, Stump v. Bennett, 398 F.2d 111 (8th Cir.) (en

banc), cert. den., 393 U.S. 1001 (1968), involved an alibi. The

court based its decision on the obvious point that alibi is not an

affirmative defense but is simply a special term for a form of

defense evidence contradicting the prosecution’s proof of an

essential element of the offense as charged, that the defendant

> was at the scene of the crime. By imposing the burden of proof,

on that issue on the defendant, the court recognized, the State

effectively required the defendant to prove that he was not the

perpetrator of the offense. Reasoning that this was different

from putting the burden of proof on the defendant for a true

affirmative defense, and distinguishing Leland v. Oregon on

that basis, 398 F.2d at 119, the court held it was unconstitution-

al.

The same court, however, then rejected a similar challenge

from a defendant who had been convicted in 1934 in a trial with

the same instruction on the alibi burden of proof, and had not

then objected to the instruction, holding that its new decision

should not be given retroactive application. Johnson v. Ben-

nett, 386 F.2d 677, 683 (8th Cir. 1967). This Court vacated that

decision and remanded the case for reconsideration in light of

Stump. Johnson v. Bennett, 393 U.S. 253, 255 (1968).

The state decision was State v. Nales, 28 Conn. Sup. 28, 248

A.2d 242 (1968). That case relied on Stump in holding unconsti-

tutional a statute putting the burden on a defendant charged

with possession of burglary tools to prove that he had a lawful

excuse for having his tools—that is, requring the defendant to

disprove the mental element for the crime.

These cases confirm the statement in Winship that it had

been assumed that the reasonable doubt doctrine was a con-

stitutional standard. They were, however, the earliest cases to

translate that assumption into a rule supervising the burden of

proof instructions in a state criminal case," and they involved

only the burden of proof on the elements of the offense, not an

affirmative defense.

Mullaney was a substantial extension, Mullaney v. Wilbur,

421 U.S. at 697, of Winship. The extension consisted of impos-

ing the burden on the prosecution of proving beyond a resaon-

able doubt, not only the elements of the offense, but also the

absence of certain matters of excuse or attenuation. As to this

extension, after Leland v. Oregon, no lawyer, no court, and no

commentator ventured the constitutional argument before

Winship. See Brief for the United States 10-12, la-10a." In

'3 Indeed, Stump arose on habeas corpus after Stump had only five

years earlier been unsuccessful in trying to assert the same issue on

his direct appeal. See Stump v. Bennett, 398 F.2d at 113. This Court

denied certiorari on that direct review. Stump v. lowa, 375 U.S. 853

(1963).

“The Solicitor General canvassed the pre-Winship state and

federal decisions in search of cases in which counsel raised the con-

1971, the court in State v. Wilbur, 278 A.2d 139 (Me. 1971),

said: “We take judicial notice of the fact that historically a

charge substantially in this form has been frequently given in

the trial of murder cases but has not heretofore been chal-

lenged.” Jd. at 144.

(ii) The North Carolina law that denied Ross due process at

his trial was based precisely on that distinction. It required the

defendant to establish an “affirmative defense,” State v. Free-

man, 275 N.C. 662, 170S.E.2d 461, 464 (1969); State v. Absher,

226 N.C. 656, 40 S.E.2d 26, 29 (1946), consisting of “matters of

excuse or extenuation,” State v. Willis, 63 N.C. 26, 29 (1868),

to the satisfaction of the jury. See State v. Hankerson, 220

S.E.2d at 585. Mullaney shattered the certainty of that dis-

tinction, cf., Engle v. Isaac, 456 U.S. at 122; Patterson v. New

York, 432 U.S. at 202, 205-207, 210, but the distinction domin-

ated North Carolina homicide jurisprudence until that deci-

sion.

The North Carolina law imposing on the defendant the bur-

den of proof on self-defense and lack of malice enjoyed an

established status for 105 years at the time it was applied in

stitutional issue with regard to the burden of proof on malice or

self-defense, but found none. He did locate five such federal decisions

describing the burden of proof in general constitutional terms, but

none in which the issues in this case were raised. Brief for the United

States 10a. The Solicitor General also found three pre-Leland v.

Oregon state cases that discussed the burden of proof issue as an

important one but concededly not as a constitutional one. Brief for

the United States 10-11, 11 n.8. Interestingly, those cases required

the prosecution to prove a defendant’s sanity, which this Court has

held is not constitutionally required even after Winship, Rivera v.

Delaware, 429 U.S. 877 (1976); Patterson v. New York, 432 U.S. 197,

205 (1977), and self-defense, which this Court so far has characterized

as only “a plausible constitutional claim.” Engle v. Isaac, 456 U.S. at

122. The only othér discovery that the Solicitor General presented

was that as of 1969 19 states did place the burden of proof on the

prosecution on the issue of malice and 23 did so on the issue of

self-defense. Brief for the United States, 10, la-9a.

Ross’ trial. Enunciated in 1864, it was not even challenged until

after Winship, and was not changed until after Mullaney.

State v. Hankerson, 220 S.E.2d at 586. Indeed, the North

Carolina Supreme Court routinely reiterated it after the

Stump and Nales decisions, shortly after Ross’ trial, State v.

Freeman, 275 N.C. 662, 170 S.E.2d 461, 464 (1969), and again

shortly after it decided Ross’ appeal. State v. Jennings, 276

N.C. 157, 171 S.E.2d 447, 449 (1970). Fourteen months after

Winship was decided, the North Carolina Supreme Court con-

tinued to uphold convictions obtained with the unconstitutional

instructions without any reference to Winship or con-

stitutional questions. State v. Duboise, 279 N.C. 73, 181

S.E.2d 393, 398 (1971); State v. Winford, 279 N.C. 58, 181

S.E.2d 423, 427-428 (1971); see State v. Hankerson, 220S.E.2d

at 586. Other state courts did the same, e.g., Bosnick v. State,

248 Ark. 1289, 455 S. W.2d 688, 690 (1970); Wheeler v. Comm.,

472 S.W.2d 254, 256 (Ky. 1971); State v. Jarvi, 3 Or. App. 391,

474 P.2d 363, 365 (1970); Comm. v. Commander, 436 Pa. 532,

260 A.2d 673, 778 (1970); Escamilla v. State, 464 S.W.2d 840,

841 (Tex. Crim. App. 1971).

It was not until five years after Ross’ appeal that the issue

began to surface in the North Carolina courts, and even then it

was rejected. The first case to raise the issue in North Carolina

was State v. Sparks, 285 N.C. 631, 207 S.E.2d 712 (1974). The

North Carolina Supreme Court gave the argument only curso-

ry treatment, holding that Winship is not “pertinent to the

facts in this case.” 207 S.E.2d at 719. It then concluded: “We

have carefully considered defendant’s argument that we

should change our well-established rule. However, we are not

persuaded to do so.” Jd.

Two other cases raised the issue in North Carolina before

Mullaney. In State v. Wetmore, 287 N.C. 344, 215 S.E.2d 51,

56 (1975), the North Carolina Supreme Court ruled: “We did

reject this argument in Sparks, and we adhere to that deci-

sion.” 215 S.E.2d at 56. In State v. Harris, 23 N.C. App. 77,

208 S.E.2d 266 (1974), the North Carolina Court of Appeals

said simply: “We also reject it.” Jd. at 268.

(iii) Plainly, North Carolina did not recognize the implica-

tions of Winship until Mullaney decided them. There was no

sense of any constitutional challenge to its century-old law

among defense attorneys until some time after Winship, and

not in the courts until after Mullaney. That was true of other

states as well. E.g., Henderson v. State, 234 Ga. 827, 218

S.E.2d 612, 617 (1975); State v. Evans, 278 Md. 197, 362 A.2d

629, 634 (1976).

When Mullaney was decided, the North Carolina Supreme

Court recognized that the seminal decision for its doctrine was

Winship. State v. Hankerson, 220 S.E.2d at 583, 590. That

Court insisted that it was only the decision in Mullaney that

prohibited “the use of our long-standing rules in homicide cases

that a defendant” has the burden of proof on the issues of lack of

malice and self-defense. Jd. at 584. The standard instructions

to'the jury, the Court held, “violate th concept of due process

‘ announced for the first time in Mullaney,” id., which it charac-

terized as a “new rule.” Jd. at 590.

The North Carolina Attorney General, in his brief on behalf

of the State filed in this Court in Hankerson v. NorthCarolina,

also took the position that: “Until the decision in Mullaney,

there was absolutely no hint from this Court in its prior deci-

sions that the states were not free to place some burden of

proof as to affirmative defenses on a defendant in a criminal

trial... . Jn re Winship, did not purport to deal with affirma-

tive defenses. ” Hankerson v. North Carolina, Brief of respon-

dent North Carolina 10. The State elaborated as follows:

“The case was argued orally in the North Carolina Court

of Appeals on May 29, 1975. (A.1) At this point in time no

one trvolved i in the case could have known that about two

weeks later, on June 9, 1975, Mullaney v. Wilbur would

be announced establishing a new constitutional due

ess standard applicable to the states co the lace-

ment burden tie) Kod sy fp be bony epi efenses in

appealed, brefed briefed and road iened is tee fared eoeoiote rt

a and a in a cou

level, no error in a ying the State allocation o the

burden of proof which couldd have been the

basis of an exception and wes ge as error. So also, there

was no federal constitutional doctrine applicable to the

states which would have required the trial judge to allo-

cate the burden of proof differently than was actually done

in his instructions. Because of the lack of any overriding

federal constittional standard, the trial judge correctly

applied the long-standing North Carolina rules and the

etitioner quite properly took no exception thereto.”

Hankerson v. North Carolina, Brief of Respondent North

Carolina 13 (emphasis added). The State had also expressed

this position in its brief opposing the petition for certiorari as

follows:

“(I)t should be noted there was no ‘foreshadowing’ of the

Mullaney doctrine in any prior decisions so as to weaken

the reliance [of the North Carolina courts] on past rules.

As noted Fda pam In re Winship, supra and Ivan V. v.

City of New York, pepe merely applied the long.

standing rules of proof of guilt beyond a reasonable doubt

to juvenile proceedings where a finding of delinquency

was based on proof of acrime.. . . (U)ntil late 1974, never

ot any Federal court decision ‘foreshadowed’ this new

rine.

Hankerson v. North Carolina, supra, Brief of North Carolina

in Opposition to Petition for Writ of Certiorari 26-27 (emphasis

added); see also, id. at 13."

After this Court’s decision in Hankerson, the State modified

its position. In Cole v. Stevenson, 620 F.2d 1055 (4th Cir. 1980),

the State argued as follows:

“The fact that page | v. Wilbur, supra, had not been

decided in 1971 when petitioner appealed is not significant

in this case. Mullaney was an application of a 1970 case, In

re Winship, 397 U.S. 358, a case preceding the instant one;

and contentions of the sort made in this case were made in

North Carolina prior to Mullaney being handed down in

‘’ The Solicitor General, in his statement of the “Question Pre-

sented” and his “Statement,” also takes the position that Ross’ con-

stitutional claim is “based on Mullaney v. Wilbur”. Brief for United

States (1), 3.

the spring of 1975, State v. Sparks ...; State v.

Harris....”

Cole v. Stevenson, Brief of North Carolina 21-22.

Thus, the courts and the Attorney General of North Carolina

have agreed that: (i) the furthest the Mullaney doctrine can be

traced is to Winship; (ii) before Winship there was no con-

stitutional basis for challenging the burden of proof instruc-

tions on malice and self-defense; and (iii) it was proper or

excusable for defendants at that time not do so. “[T]he entire

legal system viewed the procedures used to convict as con-

stitutionally proper” at the time of Ross’ conviction, to use a

test suggested by the Solicitor General. Brief for the United

States 7.'°

That position conforms with this Court’s understanding ex-

pressed in dictum in Engle, 456 U.S. at 131. The Court of

‘6 The Solicitor General argues that a new retroactive decision will

“almost always” have been “ ‘perceived and litigated’ ” by the time of

“the earliest conviction still subject to collateral attack.” Brief for the

United States 24. The discussion in the text demonstrates that Mul-

laney is a retroactive decision that did not become reasonably avail-

able as a constitutional matter until at least Winship provided the

tools for it, and had not earlier been “perceived and litigated.”

In support of his position, the Solicitor General contends that the

reason for retroactivity of decisions that relate to the truth-finding

function of a trial “is that those precedents were not ‘newly minted’ .

. . +, but anticipated far in advance of this Court’s decisions.” Brief

for the United States 20. In Hankerson, however, this Court ex-

pressly applied Mullaney retroactively only because unconstitution-

al instructions on the burden of proof substantially impair the truth-

finding process, and therefore disregarded North Carolina’s argu-

ment that Mullaney could not have been anticipated in advance. 432

U.S. at 242-243. Thus, Mullaney applies to cases that had completed

the appellate process by the time of the decision and were raising the

issue on habeas corpus. Cf., United States v. Johnson, 457 U.S. 537,

562 (1982) (holding that a new interpretation of “the Fourth Amend-

ment is to be applied retroactively to all convictions that were not yet

final at the time the decision was rendered.”).

Appeals, therefore, correctly held that this case qualifies as

“cause” for a failure to raise an issue before the announcement

ofa change in the law. Although Winship and Mullaney did not

overrule any precedent, including Leland v. Oregon, cf.

Rivera v. Delaware, 429 U.S. 877 (1976), they did disapprove a

practice that Leland v. Oregon had been thought to sanction.

Winship and Mullaney overturned a longstanding and wide-

spread practice which a unanimous body of lower court author-

ty had approved as a constitutional matter. Because, as the

State conceded in Hankerson and Cole, this result was not

clearly foreshadowed before Winship, and because other de-

fense counsel had not yet perceived and litigated the issue,

Winship and Mullaney may fairly be characterized as a change

in the law that Roes is excused for not foreseeing in 1969.

D. The Policies Supporting A Forfeigure For Failing To .

Comply With A Contemporaneous Objection Rule At

Trial Do Not Apply To Ross’ Failure To Raise An Issue On

Appeal.

In Fay v. Noia, 372 U.S. 391 (1963), the petitioner sought

federal habeas corpus review of a claim that his state court

conviction had resulted from the use of a coerced confession at

his trial. He had not appealed his conviction, however, and the

state courts refused on that account to review his conviction on

coram nobis. This Court held that his failure to appeal—as long

as it was not a deliberate by-pass of state remedies—was not a

bar to federal post-conviction review. The Court applied the

same rule to federal cases in Kaufman v. United States, 394

U.S. 217, 220 n.3 (1969).

In Davis v. United States, 411 U.S. 233 (1973), the Court

began to question whether that doctrine should apply to trial-

level defaults. Davis involved a failure to comply with Rule

re nk nr ah Sor abpbeemage. ely! oe oak Asse nang

tion be made by motion before trial. Distinguishing that

tion from a failure to assert a claim on appeal, id. eae the the

Court enforced the procedural bar on habeas corpus because

compliance with the rule would have permitted timely cure of

the error. Jd. at 241. The Court noted also that finding a

forfeiture on the basis of noncompliance with the rule prevents

“sandbagging.” In Francis v. Henderson, 425 U.S. 536, 540

(1976), the Court recognized that a similar state rule had the

same value for timely prevention of error.

In Mullaney v. Wilbur, Justice Rehnquist, joined by Chief

Justice Burger, observed in a concurring opinion that “failure

to object to a proposed instruction should stand on a different

footing” than a failure to appeal. 421 U.S. at 74 n.*. He ex-

plained: “It is one thing to fail to utilize the appeal process to

cure a defect which already inheres in a judgment of convic-

tion, but it is quite another to forgo making an objection or

exception which might prevent the error from ever occurring.”

Id. The next Term Chief Justice Burger wrote an opinion for

the Court in Estelle v. Williams, 425 U.S. 501 (1976), holding

that trying a defendent in prison garb did not violate due

process if the defendant did not object. In a concurring opinion,

Justice Powell pointed out that a timely objection would have

allowed the trial judge to correct the situation. Jd. at 514.

Emphasizing that the case involved a “curable trial defect,” id.

at 515, he observed: “The right involved here is a trial-type

right. As a consequence, an attorney’s conduct may bind the

client.” Jd. at 515 n.4. Then in Henderson v. Kibbe, 431 U.S.

145 (1977), Chief Justice Burger, in a separate opinion, again

argued that Fay involved “post-trial omissions of a technical

nature which would be unlikely to jeopardize substantial state

interests. Mid trial omissions such as occurred in this case, on

the other hand, are substantially different.” Jd. at 158. Accord-

ingly the Chief Justice urged: “The ‘deliberate bypass’ doctrine

of Fay v. Noia, supra, should not be extended to midtrial

procedural omissions which impair substantial state in-

terests.” Jd.

The Court adopted that position in Wainright v. Sykes, 433

U.S. 72, 87 (1977), to deal with a failure to object at trial to the

admissibility of a confession. Distinguishing a failure to appeal,

id. at 88, the Court explained that a contemporaneous objec-

tion rule at trial serves important interests:”

(1) Finality: “A contemporaneous objection rule may lead

to the exclusion of the evidence objected to, thereby making a

major contribution to finality in criminal litigation.” 433 U.S.

at 88; see also, Francis v. Henderson, 425 U.S. 536, 540 (1976).

Justice Rehnquist, the author of Wainright v. Sykes, had

explained in his separate opinion in Mullaney that this para-

mount consideration does not apply to a failure to utilize the

appeal process. By the time of appeal, it is too late to cure a

fundamental constitutional error except by a new trial, so a

requirement that the issue be raised on appeal cannot prevent

the necessity of a retrial.

Beyond “the problems of finality and federal-state comity

[that] arise whenever a state prisoner invokes the jurisdiction

of a federal court to redress an alleged constitutional viola-

tion,” Jackson v. Virginia, supra, 433 U.S. at 322, the interest

in finality is therefore not a factor in connection with the

enforcement of a state rule requiring issues to be raised on

appeal. Such a rule has no relationship to the prevention of trial

error. Finality is not advanced by directing defendants to the

‘7 “(A) litigant’s procedural defaults in state do not

prevent vindication of his federal rights the State’s in-

sistence on compliance with its procedural rule serves a legiti-

mate state interest. In every case we must inquire whether the

rome ag of a = forfeiture cl ont ape a state 4

rest. does not state procedural ought not

permitted to bar vindication of important fi rights.”

Henry v. Mississippi, 379 U.S. 443, 447-448 (1965); see also Hart,

“Foreward: The Time Chart of the Justices,” 73 Harv. L. Rev. 84,

116-118 (1959). In Francis v. Henderson, 425 U.S. 536, 540-541

mate,” Francis v. Henderson, 425 U.S. at 540, 541, before allowing

them to operate as a bar to federal habeas corpus review. See also,

Michigan v. Tyler, 436 U.S. 499, 512 n.7 (1978); Henderson v. Kibbe,

431 U.S. 145, 158 (1977) (Burger, C.J., concurring).

state appellate process; their compliance with that procedure

would not end their cases but would rather keep them active

for federal habeas corpus review. Denying such review for

failure to appeal would finalize the case, but only by an arbitra-

ry procedural trap unless the rule serves some other purpose.

“The duty of a federal habeas corpus court to appraise a claim

that constitutional error did occur—reflecting as it does the

belief that the ‘finality’ ofja deprivation of liberty through the

invocation of the criminal sanction is simply not to be achieved

at the expense of a constitutional right—is not one that can be

so lightly abjured.” Jd. at 323.

(2) Accuracy of record. “A contemporaneous objection en-

ables the record to be made with respect to the constitutional

claim when the recollections of witnesses are freshest... .”

433 U.S. at 88. An appeal is already too late to achieve that

purpose. It does not afford an opportunity to make a record

with witnesses. If an evidentiary hearing is necessary to estab-

lish the issue, some form of post-conviction proceeding will be

required.

(3) Enabling the prosecution to consider conceding the

issue in order to protect against reversal ii the event of a

conviction. 433 U.S. at 89. This purpose, too, may be served

only at trial.

(4) Discouraging “sandbagging.” 433 U.S. at 89. The con-

cern about sandbagging, even at trial, may be overstated." In

See Friendly, “Is Innocence Irrelevant? Collateral Attack on

Criminal Judgments,” 38 U. Chi. L. Rev. 142, 158 (1970); Hill, “The

Forfeiture of Constitutional Rights in Criminal Cases,” 78 Col. JL.

Rev. 1050, 1061 (1978); Reitz, “Federal Habeas Corpus: Impact of an

Abortive State Proceeding,” 74 Harv. L. Rev. 1315, 1351 (i961);

Rosenberg, “Jettisoning Fay v. Noia: Procedural Defaults by Rea-

sonably Incompetent Counsel,” 62 Minn. L. Rev, 341, 408, 415 (1978);

Spritzer, “Criminal Waiver, Procedural Default and the Burger

Court,” 126 U. Pa. L. Rev. 473, 507 (1978); Tague, “Federal Habeas

Corpus and Ineffective Representation of Counsel: The

Court Has Work to Do,” 31 Stan. L. Rev. 1, 42-46 (1978); Comment,

130 U. Pa. L. Rev. 981, 993-994 (1982).

37°

any event, by the time of appeal, any such concern has dissi-

pated." Certainly if the issue was preserved at trial, there can

be no tactical advantage to withholding it from appeal if it is

judged to have any merit. Cf., Jones v. Barnes, 103 S.Ct. 3308

(1983). If the issue requires a factual hearing, again, it would

for that reason not be appropriate for appeal.”

(5) Advancing the perception of the criminal trial “as a

decisive and portentous event.” 433 U.S. at 90. In Engle, the

Court again expressed concern that federal habeas corpus not

undermine “the prominence of the trial itself.” 456 U.S. at 127.

By definition, that event is concluded when appellate proce-

dures are involved. Nevertheless, a comity purpose may be

served by the federal court treating respectfully state appel-

late procedural requirements.

In Ford v. Strickland, 696 F.2d 804 (11th Cir. 1983) (en banc),

the court said that applying Sykes to appeal failures would dis-

courage “defense attorneys from omitting arguments in preparing

appeals with the intent of saving issues for federal habeas corpus.”

Id. at 816. There is no reason for any attorney to pass up the state

appellate courts in favor of the federal habeas corpus court when he

can present the constitutional issue to both successively. The court

made no effort to explain why an attorney would not pursue each

avenue of relief for the defendant in every case.

*” In United States ex rel. Spurlark v. Wolff, 699 F.2d 354 (7th Cir.

1983) (en banc), the Court strained to contrive a hypothetical situa-

tion presenting a tactical reason for not presenting a claim on appeal:

“In Sumner v. Mata, 449 U.S. 539 (1981), the Court held that

factual determinations ete Seas by a state peopelate court are enti-

tled toa In a claim such as ineffec-

tive Sto preven fe ae the sae spelt

wa best mterees Bet So. pecans te

court, which will determination shortly

trial that will be en ree of , but

Id. at 361; see Brief for Pet. 15 n.3. Of course:

(A) Sumner v. Mata involved appellate findings based on ‘he trial

record. 449 U.S. at 543. If the defendant is afraid of losing because of

Invoking one additional policy, the State contends that Ross’

failure to raise the Mullaney issue on appeal denied the State

an earlier opportunity to retry him.” See Engle v. Isaac, 456

U.S. at 127-128; Preliminary Draft of Proposed Amendments

to Rule 9a) of the Rule Governing Section 2254 and Section

2255 Proceedings (August 1983). The problem of delay in a

retrial is inherent in retroactivity. See United States v. John-

son, 457 U.S. 537, 543 (1982). The State’s concern, is in-

apposite, however, with regard to cases in which a Supreme

Court decision after the conclusion of the appeal effects a

change in the law from that which the state appellate courts

had been applying.” The argument contemplates that if Ross

a new factual determination on appeal, he must have either (a)

prevailed on the factual issue at trial, in which case it would be up to

the prosecution to appeal, not the defendant, or (b) not raised the

issue at trial, in which case the trial default may be the focus of the

forfeiture claim.

(B) If the facts are already part of the trial record, delay in pursu-

ing the issue will have no effect on the testimony already presented.

are not part of the trial record, they must be presented on collateral

attack rather than appeal.

(D) The laches provision of Rule 9a) of the Federal Rule of Habeas

Corpus is directed against this kind of problem. A procedural forfeit-

ure is not necessary to enable the federal habeas corpus court to deal

with it equitably. :

(E) Such conniving seems unrealistic, both because its success

would be on a high order of speculation and because the defendant

would be serving his sentence while awaiting the fading of memories.

During the delay, of course, Ross, like any defendant, was serv-

ing his sentence. Thus, he would have preferred to have the Mul-

laney principle available earlier.

2 If the State is correct that the due process principle was apparent

at the time of Ross’ trial and appeal, the State could have obviated the

need for a retrial by providing him a constitutionally reliable trial at

that time. The delay in retrial since Winship is attributable to the

State’s failure to recognize the implications of that decision and the

had raised the Mullaney issue on appeal the State Supreme

Court would have recognized its force and promptly reversed

his conviction. Considering that Mullaney was not decided

until five years after Ross’ appeal, such a result was not likely.

Indeed, after Ross’ conviction had been affirmed, the North

Carolina appellate courts rejected similar arguments made in

Sparks, Wetmore and Harris. Even after Mullaney, the North

Carolina Supreme Court would not have given Ross the benefit

of that decision because it held, in State v. Hankerson, that

Mullaney did not apply retroactively. Moreover, what could

Ross have argued had he raised the issue on appeal? He could

have made only a general reference to due process. He could

not have cited either Winship or Mullaney because they did

not yet exist. In arguing that Ross forfeited the issue by not

raising it in this way, the State is insisting on a formality. The

North Carolina Supreme Court would have dismissed the

argument, and Ross would not have been able to get serious

consideration of it in the North Carolina courts any sooner than

the time that he filed his post-conviction application.

Thus, as Chief Justice Burger and Justices Powell and Rehn-

quist have observed, the interests supporting procedural de-

fault on appeal are considerably less forceful than the interests

supporting procedural default at trial. See Fay v. Noia, 372

U.S. at 433. Although the circuits are divided on whether

Sykes applies to the appeal stage,” they agree with that point.

delay since Mullaney is a result of the State’s resistance to giving

Ross the benefit of that decision. The six year delay since Ross filed

his post-conviction petition has occurred because the State values its

interest in litigating the issues in this case more highly than it does its

interest in an early retrial.

* Although recognizing that this Court has expressly not over-

ruled Fay on its precise holding, Wainwright v. Sykes, 433 U.S. at

87-88; see also, Jones v. Barnes, 103 S.Ct. 3308, 3314 n.7 (1983), the

Second, Feurth, Fifth, Seventh and Eleventh Circuits have applied

Wainwright to defaults on appeal. Forman v. Smith, 633 F.2d 634,

640 (2d Cir. 1980), cert. den., 450 U.S. 1001 (1981); Cole v. Stevenson,

Holcomb v. Murphy, 701 F.2d 1307, 1311 (10th Cir.), cert.

den., 103 S.Ct. 3546 (1983); United States ex rel. Spurlark v.

Wolff, 699 F.2d 354, 358-359 (7th Cir. 1983) (en banc); Ford v.

Strickland, 696 F.2d 804, 816 (11th Cir. 1983) (en banc); Nor-

ris v. United States, 687 F.2d 899, 904 (7th Cir. 1982); Forman

v. Smith, 633 F.2d 634, 639-640 (2d Cir. 1980), cert. den., 450

U.S. 1001 (1981). In Wainwright, Chief Justice Burger, con-

curring, wrote: “I would leave the core holding of Fay where it

began. . . .”433 U.S. at 94. He explained that Fay, involving a

failure to appeal, ‘ ‘was never designed for, and is inapplicable

to, errors—even of constitutional dimension—alleged to have

been committed during trial.” 433 U.S. at 92.

620 F.2d 1055, 1059 (4th Cir.) (en banc), cert. den., 449 U.S. 1004

(1980); Evans v. Maggio, 557 F.2d 430, 433 (5th Cir. 1977); United

States ex rel Spurlark v. Wolff, 699 F.2d 354, 361 (7th Cir. 1983) (en

banc); see also, Norris v. United States, 687 F.2d 899, 903-904 (7th

Cir. 1982); Ford v. Strickland, 696 F.2d 804, 816 (11th Cir. 1983) (en

banc). The Third, Sixth, and Tenth Circuits, on the other hand, have

continued to apply Fay. United States ex rel. Caruso v. Zelinsky,

689 F.2d 435, 442 (3d Cir. 1982) (dictum); Crick v. Smith, 650 F.2d

860, 867 (6th Cir. 1981); Holcomb v. Murphy, 701 F.2d 1307, 1310-

1312 (10th Cir.), cert. den., 103 S.Ct. 3546 (1983).

*In Engle, the Court emphasized that the procedural failure oc-

curred at trial:

“In Wainwright v. Sykes, we Compras wat thats: Soste ate

vi high when a trial defeut has barred a prisoner from

obtaini xajietication of his constitutional claim in the state

courts. In that situation, the trial court has had no opportunit

to correct the defect and avoid problematic retrials. The defend.

ant’s counsel, for whatever reasons, has detracted from the

trial’s significance by neglecting to raise a claim in that forum.”

456 U.S. at 128-129 (emphasis added); see also, id. at 127 (“safe-

guards during the trial itself’). The Court mentioned one other

consideration: “The state appellate courts have not had a chance to

mend their own fences and avoid federal intrusion.” 456 U.S. at 129.

That consideration was mentioned only in conjunction with those

arising out of the trial failure.

E. North Carolina Law Does Not Require A Forfeiture For

Every Procedural Default.

North Carolina law provides flexibility in the determination

whether to impose a forfeiture for a procedural default. The

Motion for Appropriate Relief procedure, North Carolina

General Statutes section 15A-141%a), provides the following

grounds for denial, with relevant exceptions:

“(2) The ground or issue underlying the motion was pre-

viously determined on the merits upon an appeal

from the judgment or upon a previous motion or

proceeding in the courts of this State or a federal

court, unless since the time of such previous

determination there has been a retroactively effec-

tive change in the law controlling such issue.

“(3) Upon a previous appeal the defendant was in a posi-

tion to adequately raise the nd or issue underly-

ing. ws present motion but did not do so.” (Emphasis

In addition, section 15A-1419(b) provides:

“Although the court may deny the motion under any of the

circumstances specified in this se¢tion, in the interest of

justice and for good cause shown it may in its discretion

grant the motion if it is otherwise meritorious.”

See State v. Afflerback, 46 N.C. App. 344, 264 S.E.2d 784, 785

(1980) (The defendant failed to give notice at the time of his

guilty plea that he intended to appeal the denial of his motion to

suppress evidence. Nevertheless, the court held that because

the requirement to do so was “a recent interpretation of the

statute which gives defendant his right to appeal and which

was handed down just before this appeal was docketed, we will

. . . discuss defendant’s claim on the merits.”); see also, State

v. White, 274 N.C. 220, 162 S.E.2d 473, 479 (1968) (“provided

factors beyond his control prevented him from claiming them

earlier”).

”

F. Under All The Circumstances Ross Has Met The “Cause”

Standard.

In concluding that Ross met the “cause” requirement the

Court of Appeals emphasized the following factors: (A) The

challenged instructions had been used in North Carolina and

other states for over a century and had been frequently ap-

proved by the state courts. 704 F.2d at 708. (B) “The default

here occurred in the appellate process,” not at trial. 704 F.2d at

708; see also, Huffmen v. Wainwright, 651 F.2d 347, 352 (5th

Cir. 1981). (C) “[NJo one can say that the verdict was not

reached because the jurors placed the burden of persuasion

upon the defendant rather than upon the state, just as they

were instructed.” Because the burdens of persuasion of his two

defenses were placed upon him, Ross did not receive a fair

trial. Such major unfairness in a trial is itself a miscarriage of

justice.” 704 F.2d at 709. (D) Ross’ appeal was concluded

before Winship provided the “springboard from which to

launch a constitutionally based, objection to the charge.” 704

F.2d at 708. (E) Therefore, Ross “had no reasonable basis for

asserting the constutitional claim on appeal.” 704 F.2d at 709.

The Ninth Circuit has followed the same approach. In Myers

v. Washington, 646 F.2d 355 (9th Cir. 1981), remanded for

reconsideration in light of Engle, 456 U.S. 921 (1982), on

remand, 702 F.2d 766 (9th Cir. 1983), the Court found “cause”

for failing to raise the Mullaney issue on an appeal that was

completed before Winship. 702 F.2d at 768. The Court held

that none of the considerations in Sykes “has any force in

dealing with a situation like the appellant’s, where the alleged

procedural default consists of failure to raise on appeal con-

Stitutional issues that were unknown at the time the appeal

“was taken.” 646 F.2d at 359. Similarly, in Gibson v. Spalding,

665 F.2d 863 (9th Cir. 1981), vacated for reconsideration in

light of Engle, 456 U.S. 968 (1982), on remand, 703 F.2d 362

(9th Cir. 1983), a different panel of that court held that the

3Cf., Connecticut v. Johnson, 108 S. Ct. 969, 977 (1983).

Sykes interests were not “implicated in a situation where the

procedural default consists of a failure to raise on appeal a

constitutional issue that was impossible for the defendant to

recognize at the time the appeal was taken.” 665 F.2d at

866-866; but see, Matias v. Oshiro, 683 F.2d 318, 321 n.3 (9th

Cir. 1982).

This Court followed a similar approach in Gardner v. Flor-

ida, 430 U.S. 349 (1977). In that case, the defendant did not

request access to the report that the sentencing judge used in

deciding to impose the death penalty despite a jury recommen-

dation for life. The Court employed five reasons for deciding

against forfeiture. (A) The issue went to the important death

penalty determining process. (B) Counsel’s failure could not

have been a tactical decision. (C) The state supreme court has

held that it reviews the entire record in capital appeals. (D)

Two members of that court discussed the issue, suggesting

that the entire court considered it. (E) The State did not urge

forfeiture.

Fay v. Noia itself was a case in this pattern. Although the

‘Court explained its result in terms of the “deliberate bypass”

test, Noia did make a deliberate decision not to appeal. He

testified that he did not want to burden his family with the

costs. His attorney testified that Noia passed up the appeal

because he was afraid that, if successful, he might get the death

penalty on retrial. See 372 U.S. at 397 n.3; see also, id. at 471

(Harlan, J., dissenting). The instincts of the Court to grant

relief to Noia are validated by the cause-and-prejudice stand-

ard: (A) The issue that Noia sought to raise was one that

affected the integrity of the fact-finding process: that the prin-

cipal evidence against him was a brutually involuntary con-

fession. 372 U.S. at 395 n.1. (B) The failure occurred on appeal,

and not at trial. 372 U.S. at 433. (C) The failure occurred in

1942, and this Court later issued decisions that would have

decision. In Douglas v. California, 372 U.S. 353 (1963), the

Court held that an indigent defendant has a right to counsel on

appeal. That decision came at the same time as Fay v. Noia,

suggesting that the Court was then sensitive to the inequity

that Noia suffered as a result of the absence of that right in

1942. Later, in North Carolina v. Pearce, 395 U.S. 711, 726

(1969), the Court held that due process prohibits the imposition

of a more severe sentence upon a defendant after a new trial

unless based on new wrongful conduct by the defendant. Thus,

there was “cause” for Noia’s failure to appeal because he and

his attorney could not anticipate Douglas 21 years later and

Pearce 27 years later.

This case involves the constitutional invalidity of a state

policy with a long tradition that was shared with many other

states. It is not a challenge to an isolated incident. The entire

institutional structure of the state judicial system failed to

notice the unconstitutionality of its practice despite its fre-

quent and general application before and even after Winship.

Although the State’s courts, judges, and prosecutors had at

least equal responsibility with its defense attorneys for assur-

ing the conformity of their law with the Constitution, they

failed to recognize the violation. See Gardner v. Florida, 430

U.S. at 361 n.12 (“The Supreme Court of Florida decided

petitioner’s case before our decision in Proffitt v. Florida... .

Therefore, we cannot join Mr. Justice Marshall’s criticism of

the Florida courts for their failure to follow the teaching of

those cases.”) see also, Murch v. Mottram, 409 U.S. 41, 45-47

(1972) (finding deliberate by-pass where the state court

advised defendant of the consequences of withdrawing a claim

from a post-conviction petition).” The constitutional violation

* Several commentators have suggested that the state should have

responsibility at least for giving a defendant “notice” before his

default can amount to a federal forfeiture. Gibbons, “Waiver: The

Quest for Functional Limitations on Habeas Corpus Jurisdiction,” 2

Seton Hall L. Rev. 291, 308-309 (1971); Rosenberg, “Jettisoning Fay

v. Noia: Procedural Defaults by Reasonably Incompetent Counsel,”

62 Minn. L. Rev. 341, 413 (1978); Spritzer, “Criminal Waiver, Pro-

Se ae Pa. L. Rev. 473, 513

(1978).

is clear, even conceded, on the record of the trial. There is no

need for an evidentiary hearing to adjudicate any dispute. Cf,

Bowen v. Johnston, 306 U.S. 19, 26-27 (1939). To deny Ross

the benefit of Mullaney, relieving him from a conviction that is

conceded to be constitutionally unfair and unreliable, because

of his excusable failure to claim it on appeal before it was

decided, and even before Winship laid the groundwork for it,

would exalt over justice a procedural rule that has no justifica-

tion on the facts of this case.

CONCLUSION

For the foregoing reasons, respondent respectfully requests

that this Court affirm the judgment of the Court of Appeals.

Respectfully submitted,

BarRY. NAKELL

Court-appointed

” Counsel for Respondent

EXHIBIT A

SPECTRUM OF PROCEDURAL FAILURES

' BY THE DEFENSE IN A

STATE CRIMINAL CASE

Ineffective Serious Inadvertence, negligence,

assistance | neglect | or lack of due diligence

of counsel by counsel by counsel

(a) Developing (b) No

change in the explanation

Judgment decision

of counsel

(a) No explanation (b) Tactical or

strategy

decision

EXHIBIT B

MULLANEY V. WILBUR TIME LINE. .

Beginning

March _ Oct. in 1973 and Oct.

1952 1969 1969 1970 1970 1971 1972: 1974 1974 1974

***

Leland Ross’ Ross’ IN RE, Law review — Mullaney v. Wilbur State v.

v. trial appeal WINSHIP articles Sparks;

ose Wilbur ype Court of Appeals Certiorari Wetmore;

granted Harris

EXHIBIT B

Page Two

MULLANEY V. WILBUR TIME LINE

Jan. and C-

April June Sept.

1975 r 1975 1975 1975 1977 1978 1978 1979 1982

“**

Engle, MULLANEY Engle, _ State ——— aape Ross’ post- Wynn State

two of v. one of v. conviction v. v.

the trials WILBUR the trials Hankerson North Carolina Seiden petition Mahoney Bush

‘ ***

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