Amicus Curiae Brief — Greer v. Miller

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No. 85-2064 ~~ | E [Len ,

MAR 16 987

mn Tee JOSEPH F

‘ . SPANIOL, J

Supreme Court of the United States cir

OCTOBER TERM, 1986 “7

<j

JAMES GREER, Warden,

Menard Correctional Center,

Petitioner,

—V.—

CHARLES MILLER,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF AMICUS CURIAE OF THE AMERICAN

CIVIL LIBERTIES UNION FOUNDATION AND THE

ROGER BALDWIN FOUNDATION OF ACLU, INC.

IN SUPPORT OF RESPONDENT

JOHN A. POWELL LEON FRIEDMAN

VIVIAN O. BERGER Counsel of Record

DAVID B. GOLDSTEIN Hofstra Law School

American Civil Liberties Hempstead, NY 11550

Union Foundation (212) 737-0400

132 West 43rd Street

New York, New York 10036

(212) 944-9800

HARVEY GROSSMAN

Roger Baldwin Foundation

of ACLU, Inc.

220 South State Street

Chicago, IL 60604

(312) 427-7330

Ne aA ee ee ee, ee ET Ee eee we! a oe fe Tee ee

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TABLE OF CONTENTS

Page

_ * i. ge... - jy et: e cee 111

Beameuee Ge BRACE CUMAAE ceccecceceses ee ]

INTRODUCTION AND SUMMARY OF ARGUMENT... 2

ARGUMENT

I. DOYLE VIOLATIONS SHOULD CONTINUE

TO BE SUBJECT TO HARMLESS ERROR

ANALYSIS.....-.cee- cocccece cocccccccce 8

A. This Court Has Applied Two

Standards of Review to

COMSEEEREEOROL BEFOE.cccccccecese g

B. Under Doyle, Use of Post-Miranda

Silence Violates Due Process

Without Regard to the Trial's

OUCCOME. ccccccccsccccccces cecccccee 20

1. A Doyle Violation, Without

More, Undermines the Fair

Administration of Justice..... 20

2. Post-Miranda Silence is

"Insolubly Ambiguous"......... 23

II. NEITHER THE HABEAS CORPUS STATUTE,

NOR THE NATURE OF HABEAS CORPUS,

JUSTIFIES A REQUIREMENT OF ACTUAL

PREJUDICE, AFTER CONSTITUTIONAL

ERROR IS SHOWN... .ccccccccscccsccccee 29

A. The Court Should Interpret

the Hbeas Statute in Light of

Congressional Intent and the

Purposes of Habeas Corpus Review 26

B. The Actual Prejudice Standard f

Would Impose Significant Costs TABLE OF AUTHORITIES

on the Federal System........... 35

Cases Page

CONCLUSION ..ccccccccccscesseseseseses ooo OO

Batson v. Kentucky,

106 S. Ct. 1712 (1986).......---- 11

Beck v. Alabama,

447 U.S. 625 (1980)... ccc ccccvees 14

Blue Chip Stamps v. Manor Drug Stores,

BEE Wete FES CEPI ccccccccccecs eo 27

| Brady v. Maryland,

373 U.S. BS (1963)... cece TeTTE 15

) Crist v. Bretz,

| 437 U.S. 28 (1978)... ccc ccccscees 33

| Cuyler v. Sullivan,

Mee Bee GhPCO) co coccccccccces 33

Darden v. Wainwright,

106 S&S. Ct. 2464 (1986)... cece 11,15

) 21

Delaware v. Van Arsdall,

106 S. Ct. 1431 (1986).........4.. 8

Donnelly v. DeChristoforo,

416 U.S. 637 (1974)..... eoccccesce 15

.

Hs / Doyle v. Ohio,

| i CROPOD . wcccccccccecs passim

|

Fletcher v. Weir,

Pas WES BEPOS)o ccoccccccccccs 21

Gideon v. Wainwright,

DE Wats SSS CEPOSP ccccccccccceccs 10

iii

ii

Holbrook

v. Flynn,

106 S. Ct. 1340 (1986)...........

Hopper v.

Evans,

456 U.S. 605 (1982).......... cece

Kaufman v. United States,

394

Kuhlmann

ae See SE a bécwcneccescsce

v. Wilson,

106

Mackey v.

S. Ct. 2616 (1986)... .ccccce

United States

401

Miller v.

U.S. C67 C1971). ccccccccccces

North Carolina,

583

F.2d 701 (4th Cir. 1978).....

Miranda v. Arizona,

384

Payne v.

U.S. 4356 (1966)... cccccccccces

Arkansas,

356

Raley v.

U.S. 560 (1958)... cccccccccces

State of Ohio,

360

Rose v.

U.S. 423 (1959) .cccccccccccces

Clark,

106

BS. Ct. J101 (1986). ic cccccccces

Rose v. Mitchell,

443

U.S. 3545 (1979). ccc cccccccees

Sandstrom v. Montana,

442

U.S. S10 (1979) wc cccccccccceccs

Santobello v. New York,

404

Smith v.

ae See Ee 6decedanebene

Murray,

106

BS. CO. 2661 (1986). cccccee ee

iv

15

14

31

28,30

31

11

23

10,24

Stone v. Powell,

428 U.S. 465 (1976)... cccccccceee

Strickland v. Washington,

466 U.S. 668 (1984)... cee eeeees

United States v. Bagley,

105 S. Ct. 3375 (1985).......06.

Vasquez v. Hillery,

106 S. Ct. 617 (1986)..........-.

Wainwright v. Greenfield,

106 S. Ct. 634 (1986)......220e-

Waley v. Johnson,

316 U.S. 191 (1942)... ccccevces

Other Authorities

Statutes, Bills, Rules

Be @.S.6. BOOS: BAST ck 64660004 eee ees

28 C.8.6. Geet«. SOBRE) GP) o k65 00 6eees

S. 238, 99th Cong. lst Sess. (1985)...

INTEREST OF AMICI CURIAE

The American Civil Liberties Union is a

nationwide, nonpartisan organization of over

250,000 members; the Roger Baldwin Foundation of

ACLU, Inc., is its Illinois state affiliate. The

ACLU has been particularly active in preserving

and defending substantive constitutional rights

of criminal defendants. Amici have also been

active in preserving the procedural vehicle of

federal habeas corpus, which is critical for the

protection of such rights. We submit this brief

amicus curiae in the hope that it will assist

the Court's resolution of this case, which

implicates and threatens both these interests.*

—— tm S

* Letters of consent to the filing of this

brief have been lodged with the clerk of the

Court.

INTRODUCTION AND SUMMARY OF ARGUMENT

In this case, petitioner asks this Court to

ignore well-established precedents in all the

Circuits that hold that harmless error analysis

applies to a violation of Doyle v. Ohio, 426

U.S. 610 (1976) on federal habeas corpus. See

Miller v. Greer, 789 F.2d 438, 442-43 (7th Cir.

1985) (en banc). To escape these precedents (as

well as this Court's unanimous assumption to the

same effect last Term in Wainwright v.

Greenfield, [06 S. Ct. 634, 640 n.13 (1986)),

id. at 643 (Rehnquist, J., concurring),

petitioner proposes a sweeping reexamination of

two basic principles which this Court and all

other federal courts have routinely applied: (1)

Doyle violations, like other "bright-line"

constitutional violations in which fairness and

truth-seeking values are implicated, are subject

to harmless error analysis;

(2) harmless error

analysis applies to constitutional error on

federal habeas corpus in the same way and to the

same extent as on direct review.

Three years ago this Court directly

confronted the latter proposition in Strickland

v. Washington, 104 S. Ct. 2052 (1984), in which

it held that ineffectiveness of counsel claims

must be treated the same way on federal habeas

corpus, direct appeal or a motion for a new

trial. Id. at 2070. Indeed, in no case has this

Court, or any Of its members, ever even

suggested that, in addition to the other

procedural and substantive burdens facing a

habeas corpus petitioner, he must also meet a

standard more stringent than a defendant on

direct appeal and show actual prejudice after he

has proven constitutional error. In the face of

precedents that reject both parts of the

argument here, petitioner seeks to combine them

together in the hope that two rejections must

mean one acceptance or that two times zero will

as

9

yield more than zero. Such topsy-turvy

mathematics need only be stated to be rejected.

Petitioner's mechanical argument that a

Doyle violation is "only" a general due process

claim that requires a showing of actual

prejudice is wrong as a matter of analysis and

wrong as a matter of precedent. Unlike the cases

cited by petitioner, Doyle due process

violations are complete upon the state's use of

post-Miranda silence at trial. Once

constitutional error is found, this Court has

applied one of two standards of review --

automatic reversal or harmless error. To

determine which applies to a particular claim,

the Court examines the nature of the right and

how the violation of such right relates to other

values in the administration of justice, not

what label is given to the right.

The actual prejudice standard has been

limited to situations in which it is not clear

whether a constitutional violation has occurred

unless the effect of the-violation on the

outcome of the trial is determined. That

approach is inapplicable to Doyle violations

since Doyle creates a “bright-line" standard for

prosecutors to meet. Doyle violations are

analagous to other direct misrepresentations by

officers of government that have always been

subject to the harmless error rule. In addition

Doyle violations can seriously undermine the

fairness of any proceeding because of the

inherently ambiguous nature of a defendant's

silence. The Duyle due process violation is not

the effect of the violation on the trial's

outcome, but rather, the very use of the post-

Miranda silence.

Petitioner's second argument that all

constitutional violations must be subject to an

actual prejudice standard on habeas corpus

review would seriously ersde constitutional

protection under the great writ. Such judicial

rewriting of a statute would be improper,

especially in light of Congress' steadfast

refusal to modify the statute along the lines

urged by petitioner. It would undermine the

nature of collateral review in the federal

courts in a revolutionary manner. It would

effectively strip federal tribunals of their

assigned constitutional and statutory function

of guarding the constitutional rights of state

prisoners and providing federal oversight of

state court interpretation of the Constitution.

The argument threatens the entire scheme of

federal review of constitutional error, under

which this Court on direct review of a few cases

and the entire federal judiciary on federal

habeus corpus review are engaged in a dynamic,

On-going dialogue with state courts to define

constitutional protections in criminal cases.

Petitioner's argument sets no limit to the

constitutional errors that would be subject to

the actual prejudice standard, and thus errors

that are now subject to the most stringent

re

OR Reta swe 04 a + ret

standard -- automatic reversal -- because they

render a trial fundamentally unfair or because

of the importance of the right to other values

would be unreviewable and unreversible in the

federal courts unless actual prejudice was

shown. Such a result would almost certainly

retard the elaboration and explication of

important constitutional rights.

Adoption of petitioner's approach would

inevitably involve this Court in creating

exceptions to its own creation, thus needlessly

replicating the Court's ongoing efforts to

clarify standards of review of constitutional

error. In light of Congressional inaction, such

an endeavor does not recommend itself as a

matter of judicial administration or as a matter

of constitutional law.

Finally, petitioner puts forth this radical

proposal without any showing of need. The

State's interest in federalism and finality are

fully served by the statute's current

construction. Moreover, extremely few habeas

petitioners currently succeed; the

administrative gains to the States would be de

minimis; the costs to the federal system and the

development of constitutional law would be

enormous.

ARGUMENT

I. DOYLE VIOLATIONS SHOULD CONTINUE TO BE

SUBJECT TO HARMLESS ERROR ANALYSIS

Last term, this Court engaged in

considerable debate over shifting two

constitutional violations -- confrontation

clause and burden of proof violations -- from

the “automatic reversal" category into the

"harmless error" category. Ultimately, it

determined that these sorts of violations should -

be reviewed under the harmless error sta: iard. |

See Rose v. Clark, 106 S. Ct. 3101 (1986);

Delaware v. Van Arsdall, 106 S.Ct. 1431 (1986). |

In this case, petitioner urges a far more |

radical shift that would require a defendant to

prove "actual prejudice" before obtaining relief

after a serious constitutional due process error

has been shown. This suggestion is based on a

total misreading and distortion of this Court's

decisions dealing with the differing standards

of review once constitutional error has been

found and a fundamental misconception of the

nature of the constitutional error that results

from a Doyle violation.

A. This Court Has Applied Two Standards of Review

to Constitutional Error.

Petitioner's analysis and description of

this Court's standard of review of

constitutional error divides the standard

into rigid subcategories depending on whether

the right violated is based on "specific

constitutional provisions,” Brief of

Petitioner at 19, or the "general" provisions

of the Due Process Clause. As to the latter,

petitioner claims, "actual prejudice” must be

shown before reversal of a criminal

conviction is permitted.

In fact, this Court has never adopted an

approach based on the "label" of the

constitutional right. Rather, the Court has

always applied a functional approach

involving two separate standards that depend |

upon the nature of the constitutional error

that has been found. See Rose v. Clark, 106

S. Ct. at 3105-07; id. at 3110-12 (Stevens,

J., concurring).

First, automatic reversal is required for

ee ees

errors that render é trial fundamentally unfair,

such as cases involving a coerced confession,

Payne v. Arkansas, 356 U.S. 560 (1958), or cases

where counsel was not furnished, Gideon v.

106 S.Ct. 617 (1986), in the disqualification of

petit jurors, Batson v. Kentucky, 106 S. Ct.

1712 (1986), or in an appeal to the jury, Miller

v. North Carolina, 583 F.2d 701, 708 (4th Cir.

1978);

Second, harmless error analysis applies to

almost all other constitutional errors,

including many Due Process violations.

"Actual prejudice" is not a separate

standard of review of constitutional error in

the same sense as the two standards noted above.

This Court has used this term, or similar

uietie to describe the showing that a

defendant must make to demonstrate that certain

kinds of errors rise to a constitutional

violation at all. See United States v. Bagley,

Wainwright, 372 U.S. 335 (1963), and cases ae

important values unrelated to the truth seeking

function of the trial are implicated, such as

when racial prejudice was present in the

selection of grand jurors, Vasquez v. Hillery, |

a

1. For purposes of simplicity, amici uses

petitioner's term of "actual prejudice." In

fact, this Court has used other language in

the due process cases upon which petitioner

relies. See e.g., Darden v. Wainwright, 106

S.Ct. 2464, 2472 (1986) ("so infected the

trial with unfairness"); United States v.

Bagley, 105 S. Ct. 3375, 3383 (1985)

("reasonable probability ..[{of] undermin[ing]

confidence in the outcome.")

11

105 S. Ct. 3375, 3383 (1985); Strickland v. and Sixth Amendments and does not usually apply

Washington, 104 S. Ct. 2052, 2064 (1984). But to "general" due process violations. Rose v.

once it is determined that a constitutional Clark itself, in which a jury instruction

error has occurred in these types of cases, the shifted the burden of proof to the defendant

inquiry ends and the conviction is reversed. As contrary to Sandstrom v. Montana, 442 U.S. 510

explained below, special reasons relating to ) (1979), was a "general" due process case. But

these types of errors require a defendant to | this Court in Rose explicitly held that harmless

show probable effect on the outcome before there | error applied to that type of due process

is even a constitutional error. | violation. The Court has never suggested that

Petitioner erroneously describes this ) any standard lower than harmless error should be

"actual prejudice” category as if it were a applied to these burden of proof violations.

large, amorphous one applicable to all | See, e.g., Sandstrom, 442 U.S. at 526-27

violations of "general" due process rights, but | (remanding for a determination whether the

not to specific constitutional limitations ) instruction was harmless error).

contained in the Fourth, Fifth and Sixth Sandstrom adopted a bright line rule that

Amendments. That characterization is wrong for all jury instructions on presumptions that shift

et ee ee

at least three reasons. the burden to the defendant violate due process.

First, petitioner is wrong in his initial | Id. at 524. The fact is that many "general" due

premise that harmless error analysis applies | process violations like Doyle and Sandstrom

primarily to violations of "specific develop their own "“bright-line" definitions,

constitutional provisions" in the Fourth, Fifth becoming sub-categories of the due process

12 13

clause. The constitutional error is determined

independently of its actual effect on the

outcome of the trial. Within that area, any

violation is subject to precisely the same

harmless error test as a violation of the

specific provisions of the Fifth and Sixth

Amendments. See e.g., Bagley, 105 S. Ct. at

3382, n. 9 (standard of review of due process

violations resulting from "knowing use of

perjured testimony is equivalent to the Chapman

harmless error standard."); Beck v. Alabama, 447

U.S. 625, 633 & n. 14 (1980) (due process

violated when state fails to allow jury to

consider lesser included offense in capital case

when evidence supports such a verdict); Hopper

v. Evans, 456 U.S. 605, 613-14 (1982) (Beck

violation subject to Chapman harmless error

standard).

Second, the “general” due process

violations described by petitioner involve

errors which do not reach constitutional

14

a lll

eee

dimensions unless and until a prejudicial point

is reached, such as the prosecutorial misconduct

in Donnelly v. DeChristoforo, 416 U.S. 637

(1974) and Darden v. Wainwright, 106 S. Ct. 2464

(1986), or the use of armed guards in court, as

in Holbrook v. Flynn, 106 S. Ct. 1340 (1986).

The same analysis applies with respect to

violations under Brady v. Maryland, 373 U.S. 83

(1963). We do not know whether constitutional

error has occurred unless we determine the

effect of the withheld evidence on the trial;

the definition of the right is inexorably linked

to the effect of the violation itself. Under

Brady and Bagley, supra, the prosecutor is

required to produce exculpatory material. But

there are numerous ways that evidence may be

exculpatory, and it cannot be conclusively shown

to be exculpatory unless we trace the possible

uses of the material at the trial. The purpose

of the Brady rule is to insure the proper

functioning of the adversary process at the

15

trial and to insure that justice is done. See

Bagley, 106 S. Ct. at 3380 n.6. Thus, the effect

of the prosecutor's failure to produce

exculpatory evidence reaches constitutional

error only if it undermines the proper

functioning ofthe adversary process to the

extent that a court no longer has confidence in

the outcome.

At the same time that the Court developed

the "prejudice" standard for Brady violations,

it recognized that if a prosecutor knowingly

uses perjured testimony, the actual effect of

the use becomes irrelevant and harmless error

age 8. Ge

rules will apply. See Bagley, at 3382

n. 9. That is true since, as Justice Stevens

explainec in another context in his concurrence

in Rose v. Clark, 106 S. Ct. at 3110-12, the

purpose of the rule is not only to protect the

truth seeking function of a trial, but to insure

that important values in the administration of

justice are preserved as well, including the

16

fee. enn ert tees LS al Gen ee Om eT Fr es

.

requirement that prosecutors act fairly in the

system. See also Smith v. Murray, 106 S. Ct.

2661, 2672 (1986) (Stevens, J., dissenting) ("Our

criminal justice system, and our Constitution,

protect other values in addition to the

reliability of the guilt or innocence

determination, and the statutory duty to serve

‘law and justice' should similarly serve those

values.") The constitutional error is complete

upon the knowing use of the perjured testimony.

At that point, the normal harmless error rule

comes into play.

Thus, this Court's functional approach has

consistently recognized the important difference

between specific "“bright-line" violations such

as that involved in Doyle, in which the

constitutional error is complete upon the

prosecutor's prohibited conduct, and the errors

noted above in which some kind of "effect" on

outcome must be shown before a constitutional

violation even occurs.

17

ll

Third, the division petitioner creates incompetence has had upon the trial. Only when

between "due process" violations in which both of these determinations are made, can we

prejudice must be shown and specific say that a Sixth Amendment error has occurred.

constitutional violations under the Fifth or In short, the Court's approach has been a

Sixth Amendments where harmless error applies is functional one, not the mere examination of

wrong even in terms of the cases petitioner : constitutional labels. The “actual prejudice"

cites. Thus, in Strickland -- a Sixth Amendment — standard applies when the initial “error,” such

and therefore a "specific Constitutional as failure to meet minimum standards of

provision" case, see Strickland, 104 S. Ct. at professional competence or failure to produce

2064 -- this Court noted that a "bright-line" | exculpatory material, may have so many different

automatic reversal or harmless error rule : ramifications that it cannot be considered

applies in some instances, such as when a constitutional error until we trace through its

conflict of interest or government interference effects at the trial. Thus, a defendant must

with counsel occurs, see id. at 2067. However, show actual prejudice from the error -- that it

when the court examines counsel's professional did effect his right to a fair trial, either

errors in judgment, since there are so many ways under the due process clause or the Sixth

that a lawyer may err, he is not considered Amendment -- by undermining the proper

functioning of the adversarial process. That

tle OE tl, an ty: i Se ets Se Cates, CO aI Me nm

constitutionally ineffective unless we

determine, first, how far he has performed below approach simply is irrelevant to a Doyle

violation, which is constitutionally complete

the Plimsoll line of reasonably competent

counsel, and second, what effect his when the error is made.

18 19

B. Under Doyle, Use of Post-Miranda Silence ; 634, 639 (1986). The State's use of that silence

Violates Due Process without Regard

to the Trial's Outcome. at the trial to impeach the defendant after

Doyle violations undermine the fundamental ) assuring him that he has the right to remain

fairness of the adversary process and implicate 7 silent is “fundamentally unfair," as this Court

the truth-seeking function of the criminal 7 has consistently repeated. See Fletcher v. Weir,

trial. Because of the interests protected by the | 455 U.S. 603, 606 (1982). Therefore, when the

Doyle rule, whether the use of post-Miranda prosecutor introduces the defendant's silence

silence "actually prejudiced" the defendant is ~ against him, the due process violation is

irrelevant for due process’ purposes. Since the complete.

harmless error rule typically applies to the Even if the silence were probative in some

interests protected by Doyle, it should continue | way, the State may not benefit by breaching its

to be applied in this case. promise. The State, as the sovereign, must keep

its word. It cannot convict a citizen by

1. A Doyle Violation, Without More, Undermines

the Fair Administration of Justice.

se

violating specific assurances given him at a

At a minimum, the Miranda warning is an prior time. See, e.g., Raley v. State of Ohio,

assurance that the State will not use the ; 360 U.S. 423, 438 (1959) (state may not convict a

defendant's silence against him in any way: person "for exercising a privilege which the

" . the state gives warnings to protect State clearly had told him was available to

we Aor ee Ae

constitutional rights and implicitly promises him."); cf. Santobello v. New York, 404 U.S.

that any exercise of those rights will not be | 257, 262 (1971) (state bound by its plea

penalized." Wainwright v. Greenfield, 106 S. Ct. bargains entered on the court record).

21

20 |

Thus, even if the Doyle rule had no truth-

seeking purpose, it serves important interests

in the administration of justice by requiring

the State to keep its promises. It surely is not)

appropriate to permit the State to violate its

assurances to its citizens unless the defendant

can show that he suffered actual prejudice from

such breaches.

Doyle provides prosecutors and courts with

a clear rule that can be easily followed.

Petitioner puts forth no credible reasons for

its attempt to muddy that standard. Doyle

violations are rarely inadvertent, heat-of- |

combat mistakes by prosecutors, unlike those

that can be made during argument. See, e.g.,

Darden, supra. In this case, for example, the

prosecutor deliberately began his cross- '

examination of defendant with his post-arrest

silence. Moreover, because the breach of the

State's promise to the defendant is

"fundamentally unfair," it is a due process

; |

violation. A fact-based inguiry into the effect

of the violation on the course of the trial is

irrelevant to the constitutional determination.

Petitioner's attempt to equate Doyle violations

with ineffective assistance of counsel or "fair

triai" violations simply misses the point of the

nature of the Doyle due process violation.

2. Post-Miranda Silence is "Insolubly Ambiguous."

This Court in Doyle indicated why it was

necessary to establish a clear constitutional

rule forbidding the use of a defendant's silence

to impeach him after he received Miranda

warnings:

Silence in the wake of these warnings

may be nothing more than the arrestee's

exercise of these Miranda rights. Thus,

every post-arrest silence is insolubly

ambiguous because of what the State is

required to advise the person arrested.

426 U.S. at 417.

Under these circumstances, a defendant's

silence has little, if any, probative

significance. It is both unreliable and

23

suspect, given the state's role in securing

that silence.

Furthermore, a jury is likely to give undue

weight to such silence if stressed by the

prosecutor on cross-examination and on

summation. In the same way that an alleged

confession is devastating evidence in a criminal

trial and therefore any use of an involuntary

confession requires automatic reversal, see

Payne v. Arkansas, 356 U.S. 560 (1958), use of

ambiguous silence before the jury has such an

undesirable impact that it is aifficult, if not

impossible, to weigh its effect. Permitting the

prosecutor to cross examine a defendant on his

silence or argue that the silence has any

significance would confuse the jury and upset

its truth seeking function in a fundamental

manner. Thus, like other errors that upset the

truth-seeking function without automatically

rendering the verdict suspect, harmless error is

24

the appropriate standard for Doyle violations.

See Rose v. Clark, 106 S. Ct. at 3105-07.

II. NEITHER THE HABEAS CORPUS STATUTE NOR

THE NATURE OF HABEAS CORPUS JUSTIFIES A

REQUIREMENT OF ACTUAL PREJUDICE AFTER

CONSTITUTIONAL ERROR IS SHOWN.

Petitioner's second point deals not with

the constitutional right asserted, but with the

stage at which the constitutional violation is

found. Petitioner starts with the proposition

that this Court has already placed upon habeas

petitioners some additional burdens that do not

apply on direct review, e.g. default and

exhaustion requirements, retroactivity

determinations, and then argues, in effect, that

for reasons of federalism and finality, this

Court should judicially amend the habeas corpus

statute and make it still more difficult for a

state prisoner to succeed on habeas corpus.

But there is nothing in the habeas corpus

statute or in this Court's decisions

interpreting it that suggests a generalized need

25

to increase the burdens that a state prisoner

must bear after he has shown constitutional

error, as if he were a high jumper who must leap

over a progressively higher bar each time he is

unsuccessful on a prior jump. The habeas corpus

statute, as interpreted by this Court, fully

accounts for the State's interests in federalism

and finality.

A. The Court Should Interpret the Habeas Statute

In Light of Congressional Intent and the

Purposes of Habeas Corpus Review.

We start with the obvious proposition that

a specific statute and specific rules passed by

Congress define the federal courts' habeas

corpus jurisdiction. It follows that any radical

redefinition of the scope of habeas review that.

would directly diminish the substantive

constitutional protections afforded by the law

should come from Congress and not from this

Court.

Indeed, Congress could not possibly have

intended that the habeas corpus statute should

26

be construed in the manner that petitioner

suggests. Over the past four years Congress has

had before it a number of proposals to restrict

habeas corpus jurisdiction, some of which sought

to accomplish the same goals as the petitioner.

See S. 238, 99th Cong. lst Sess. (1985) and S.

238, Habeas Corpus Reform, Hearings before the

Sen. Judiciary Comm., 99th Cong., lst Sess.

(1985). Congress refused to enact any part of

that provision or similar bills introduced

earlier and described in the hearings. Under

well-established canons of statutory

construction, this Court should not adopt a new

construction of a statute when Congress has

explicitly rejected the suggested revision. See

Blue Chip Stamps v. Manor Drug Stores, 421 U.S.

723, 733 (1975) (SEC-proposed amendment rejected

by Congress; Court refuses to interpret statute

along lines of rejected amendment).

The habeas corpus statute specifically

grants jurisdiction in the federal courts in all

27

cases in which the petitioner claims he has been

detained "in violation of the Constitution or

laws ... of the United States." 28 U.S.C. Sect.

2241(c) (3). Likewise, this Court's appellate

jurisdiction over state criminal trials is based

upon the assertion of a "right, privilege or

immunity ... specially set up or claimed under

the Constitution.” 28 U.S.C. Sect. 1257(3). On

the face of the statutes, review of substantive

constitutional rights are protected to the same

extent under both provisions.

This Court has consistently noted the dual

systems that have been established to insure

that constitutional rights in the criminal

justice system are fully protected, with the

habeas corpus statute an “additional safeguard"

in this regard. Stone v. Powell, 428 U.S. 465,

491 n.31 (1976). See also Kuhlmann v. Wilson,

106 S. Ct. 2616, 2623 (1986) (describing the

extension of federal habeas corpus jurisdiction

to include review of all constitutional errors,

28

until it became substantially coextensive with

direct review by this Court). Congress adopted

this expansion of habeas corpus review, amending

the statute to conform to this Court's

interpretation of the law. See Kuhlmann, 106 S.

Ct at 2634 (Brennan, J. dissenting).

Thus, the entire federal judiciary took on

the function and responsibility of enforcing

constitutional safeguards in the state court

criminal justice systems, with this Court

reviewing a few cases each term on direct review

and the district courts available -- in

accordance with their Statutory mandate -- to

assume jurisdiction over the thousands of cases

that this Court could not review on direct

appeal.

Under this scheme and this Court's current

interpretation of the statute, interests of

federalism and finality are fully served. For

example, the constitutional question must be

first presented to the state courts for their

29

consideration, and review must be fully

exhausted. Any fact finding made by the states

courts, including the state appellate courts,

must be accepted by the federal courts. Claims

that are procedurally defaulted in the state

courts can be brought in the federal courts only

upon ashowing of "cause" and "prejudice." Claims

that illecally seized evidence have been

improperly introduced at trial will not be heard

by the federal courts if fully litigable in the

state courts.

Once the prisoner has complied with these

requirements, the state's interests have been

fulfilled, and habeas corpus review should then

be available as a safety net to catch those few

claims "of ‘disregard of the constitutional

rights of the accused...where the writ is the

only effective means of preserving his rights.'"

Kuhlmann v. Wilson, 106 S. Ct. 2616, 2623 (1986)

(quoting Waley v. Johnson, 316 U.S. 101, 104-05

(1942)). Given the state's wholly adequate

30

Opportunity to protect a defendant's

constitutional rights, it lacks any cognizable

interest in having federal court review made

under a lesser standard than the state applied

in its initial review.

Viewed from another perspective, the

federal courts perform what Justice Harlan

called "a quasi-appellate review function,

forcing both trial and appellate courts in both

the federal and state System to toe the :

constitutional line." Mackey v. United States,

401 U.S. 667, 687 (1971) (Harlan, J.,

concurring) (emphasis added). However, the

"continued availability of a mechanism for

relief" from constitutional error, Kaufman v.

United States, 394 U.S. 217, 226 (1969), would

be seriously undermined if the standard of

review was changed in the manner Suggested by

petitioner. The on-going dialogue between the

State and federal courts on the meaning and

definition of the Bill of Rights would be

31

seriously interrupted and distorted. In effect,

state and federal courts would no longer be

speaking the same language. Federal courts

reviewing cases for constitutional error would

no longer be viewing the case from the same

perspective and under the same standards as the

state courts.

Federal courts might also find it easier to

reach the “actual prejudice” standard first

before deciding whether constitutional error had

occurred -- in effect, deciding that even if

error were found, it would not have been

prejudicial -- and thus never reach the

substantive issues. Indeed, such an approach

would also be consistent with traditional canons

of constitutional adjudication. In Strickland,

104 S. Ct. at 2069-70, this Court suggested such

an approach would be appropriate. The entire

"quasi-appellate" procedure would become

distorted in a manner that Congress could not

possibly have intended. And an important guide

32

to the state courts in constitutional

adjudication would be largely eliminated.

That approach would entail heavy

constitutional costs. This Court can take

judicial notice of the fact that some serious

constitutional violations are not caught on

their first review through the state court

System or on direct review. The alternate route

of habeas corpus is statutorily required to

catch such cases the second time around.

Certainly, petitioner's approach does nothing to

encourage more careful state court consideration

of constitutional claims.

Furthermore, it should be noted that cases

establishing some of the most important

constitutional rights over the past decades have

found their way to this Court through federal

habeas. See e.g., Cuyler v. Sullivan, 446 U.S.

335 (1980); Rose v. Mitchell, 443 U.S. 545

(1979); Crist v. Bretz, 437 U.S. 28 (1978). If

federal courts routinely reviewed cases for

33

actual prejudice prior to an examination of

constitutional claims, establishment of

important constitutional rights could be

delayed, if not indefintely postponed. See e.g.,

Vasquez v. Hillery, 106 S. Ct. 617 (1986).

It would surely be a significant strain

on this Court and a loss to our federal

system if additional substantive burdens were

placed on habeas petitioners in a manner that

would jeopardize plenary review of their

claims in federal court. Petitioner's "actual

prejudice" standard is a significant shift

away from the purpose of habeas corpus as

defined both by Congress and by this Court

-- determining whether a prisoner's

constitutional rights have been violated. It

is a giant step toward reserving the writ

only for those who can show factual innocence

-- a step this Court and Congress has

consistently rejected.

34

B. The Actual Prejudice Standard Would Impose

Significant Costs on the Federal System.

The petitioner's standard would place

substantial costs on the current structure of

criminal justice review. But the State presents

no countervailing interests that would justify

this radical change.

The proposal proffers no limitations as to

the type of constitutional right to which the

"actual prejudice” standard would apply. It

would apply to rights where automatic reversal

would now be required. Even blatant violations

of the most basic and fundamental rights --

right to counsel, right to an unbiased judge,

right against use of coerced confessions, right

against racial discrimination in the selection

of grand and petit juries -- would not result in

reversal on habeas corpus unless actual

prejudice were shown. In other words, the

proposal treats all rights, including those that

are fundamental to a fair trial or to our

35

notions of justice, the same way, at the least

rigorous end of the review spectrum.

If the Courc, after adopting the "actual

prejudice" standard felt compelled to create

exceptions for some fundamental rights on habeas

corpus, it would turn the habeas corpus statute

on its head. In the face of the Congressional

command to insure that no person be imprisoned

"in violation of the Constitution,” this Court

would be forced to start a new process of

weighing different rights in the habeas context,

under standardsof its own creation.

Petitioner makes absolutely no showing of

any need for its proposal. Petitioner appears to

be motivated by a generalized desire to make it

more difficult for a state prisoner to succeed

in a habeas proceeding. In view of the

substantial accommodation to the State's

interest already required prior to habeas review

-- exhaustion, procedural default, preclusion of

claims of use of illegally seized evidence,

36

presumption of correctness to state fact

finding, colorable innocence for resubmitted

claims -- those prisoners whose constitutional

rights have in fact been violated should not be

denied relief under the currently applicable

standards of review. These standards impose no

significant burdens on the States. Less than 2%

of the submitted petitions are successful (in

only 1.95% of the petitions determined in fiscal

year 1986 was judgment rendered for the

prisoner, according to figures supplied by the

Administrative Office of the U.S. Courts).

Before the Court acts to radically alter the

nature of habeas corpus review, the Petitioner

should be required to demonstrate the necessity

of such a change, See e.g., Stone v. Powell, 428

U.S. at 492. Given the current minimal success

rates of habeas petitioners, the actual

prejudice requirement is totally unnecessary.

37

CONCLUSION

For the reasons stated above, the judgment

below should be affirmed.

Lees, vse lly submitted,

ON FRI

Counsel i _

Hofstra Law School

Hempstead, N.Y. 11550

(212) 737-0400

JOHN A. POWELL

VIVIAN O. BERGER

DAVID B. GOLDSTEIN

American Civil Liberties

Union Foundation

132 West 43d Street

New York, N.Y. 10036

(212) 944-9800

HARVEY GROSSMAN

Roger Baldwin Foundation

of ACLU, Inc.

220 South State Street

Chicago, IL. 60604

(312) 427-7330

Attorneys for Amici

Dated: New York, N.Y.

March 16, 1987

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