# Respondents Brief — Reed v. Ross

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1984
- **Citation:** 468 U.S. 1

## Text

| Office - Subreme Court, U.S”
rFrtieErs

FEB 23 1984

ALEXANOER L. STEVAS
No. 83-218
NO. - CLERK

a

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.

ii

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 CEES Brier ese tanceeies 6

tdiahdiastcckgettesdensaaer? 6
(c) On the curre at post-conviction proce- F
(2) The cases in which the North Carolina
courts have imposed a forfeiture ....... 9
These cases
© ue courte dyated Rows’ geckeneristion
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

C.

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

11

18
19

iv

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 ~~ . ~~“

4

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

vi

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

ix

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

x

Table of Authorities Continued

Page
Sanders v. United States, 373 U.S. 1, 88 S.Ct. 1068, 10
Race DEP COED itins

xi

Table of Authorities Continued

Z

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 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.

27

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-

28

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.

29

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.

30

(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

31

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.

32

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.”).

33

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

34

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,

35

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).

36

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

38

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.

(C) If the facts regarding an ineffective assistance of counsel claim
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

39

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,

40

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.

Ti

41

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”).

”

42

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).

43

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
protected Noia against both of the concerns that motivated his ©
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,

44

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).

45

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

a

la

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

2a
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
‘ ***

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0220%3A6. Public record. Not legal advice.