Amicus Curiae Brief — Murray v. Carrier

No. 84-1554

In The FER a matali

Supreme Court of the United States

October Term, 1984

memes oO

ALLYN R. SIELAFF, Director Virginia Department of Corrections,

Petitioner,

V.

CLIFFORD W. CARRIER,

Respondent.

O

On Writ of Certiorari to The United States Court

of Appeals for The Fourth Circuit

0

BRIEF OF AMICI CURIAE

4)

Vv

THE STATE OF IDAHO, JOINED BY ALABAMA, ALASKA,

ARIZONA, ARKANSAS, COLORADO, CONNECTICUT,

DELAWARE, GEORGIA, GUAM, HAWAIL, ILLINOIS,

INDIANA, KANSAS, KENTUCKY, LOUISIANA,

MARYLAND, MASSACHUSETTS, MICHIGAN, MISSISSIPPI,

MISSOURI, MONTANA, NEBRASKA, NEVADA,

NEW HAMPSHIRE, NEW JERSEY, NEW MEXICO,

NORTH CAROLINA, NORTH DAKOTA, OHIO, OKLAHOMA,

PENNSYLVANIA, PUERTO RICO, RHODE ISLAND,

SOUTH CAROLINA, SOUTH DAKOTA, TENNESSEE, TEXAS,

UTAH, VERMONT, THE VIRGIN ISLANDS, VIRGINIA,

WASHINGTON, WEST VIRGINIA, WISCONSIN and WYOMING

IN SUPPORT OF PETITIONER.

—_-—~-—0

JAMES THOMAS JONES

Attorney General of Idaho

*LYNN E. THOMAS

Solicitor General of Idaho

Statehouse, Room 210

Boise, Idaho 83720

(208) 334-2400

*Counsel for Amici Curiae

(Attorneys General of Counsel listed on following page)

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

---—— ——

CHARLES A. GRADDICK

Attorney General

State of Alabama

HAROLD M. BROWN

Attorney General

State of Alaska

ROBERT kK. CORBIN

Attorney General

State of Arizona

JOHN STEVEN CLARK

Attorney General

State of Arkansas

DUANE WOODARD

Attorney General

State of Colorado

STATE OF CONNECTICUT

by: John J. Kelley,

Chief State’s Attorney

CHARLES M. OBERLY

Attorney General

State of Delaware

MICHAEL J. BOWERS

Attorney General

State of Georgia

RICHARD OPPER

Aitorney General

Guam

CORINNE K.A. WATANABE

Attorney General

State of Hawaii

NEIL F. HARTIGAN

Attorney General

State of Illinois

LINLEY E. PEARSON

Attorney General

State of Indiana

ROBERT T. STEPHAN

Attorney General

State of Kansas

DAVID L. ARMSTRONG

Attorney General

State of Kentucky

WILLIAM J. GUSTE, JR.

Attorney General

State of Louisiana

STEPHEN H. SACHS

Attorney General

State of Maryland

FRANCIS X. BELLOTTI

Attorney General

State of Massachusetts

FRANK J. KELLEY

Attorney General

State of Michigan

EDWIN L. PITTMAN

Attorney General

State of Mississippi

WILLIAM L. WEBSTER

Attorney General

State of Missouri

MIKE GREELY

Attorney General

State of Montana

ROBERT M. SPIRE

Attorney General

State of Nebraska

BRIAN McKAY

Attorney General

State of Nevada

STEPHEN E. MERRILL

Attorney General

State of New Hampshire

IRWIN 1. KIMMELMAN

Attorney General

State of New Jersey

PAUL BARDACKE

Attorney General

State of New Mexico

LACY H. THORNBURG

Attorney General

State of North Carolina

NICHOLAS SPAETH

Attorney General

State of North Dakota

(Continued on next page)

(Continued from previous page)

ANTHONY J. CELEBREZZE, JR.

Attorney General

State of Ohio

MICHAEL TURPEN

Attorney General

State of Oklahoma

LEROY S. ZIMMERMAN

Attorney General

State of Pennsylvania

HECTOR RIVERA CRUZ

Attorney General

Puerto Rico

ARLENE VIOLET

Attorney General

State of Rhode Island

T. TRAVIS MEDLOCK

Attorney General

State of South Carolina

MARK V. MEIERHENRY

Attorney General

State of South Dakota

W.]. MICHAEL CODY

Attorney General

State of Tennessee

JIM MATTOX

Attorney General

State of Texas

DAVID L. WILKINSON

Attorney General

State of Utah

lEFFREY AMESTOY

Attorney General

State of Vermont

VICTOR G. SCHNEIDER

Acting Attorney General

The Virgin Islands

WILLIAM G. BROADDUS

Attorney General

State of Virginia

KENNETH O. EIKENBERRY

Attorney General

State of Washington

CHARLIE BROWN

Attorney General

State of West Virginia

BRONSON C, LaFOLLETTE

Attorney General

State of Wisconsin

ARCHIE G. McCLINTOCK

Attorney General

State of Wyoming

~

QUESTIONS PRESENTED

Whether attorney error based on ignorance or inad-

vertence, which does not constitute ineffective assist-

ance of counsel in violation of the Sixth Amendment,

is sufficient to establish the ‘‘cause” required to ex-

cuse a procedural default under Wainwright v. Sykes,

433 U.S. 72 (1977).

Whether the exhaustion requirement of 28 U.S.C.

§ 2254 may be circumvented merely because a claim

of attorney error is asserted to establish ‘‘cause” un-

der Waiwmwright v. Sykes rather than as an independ-

.

.

ent ground for habeas corpus relief

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE

SUMMARY OF ARGUMENT ~~ _____..

ARGUMENT

I. The Opinion of the Court of Appeals With-

out Good Reason Expands the Availability of

Federal Review Beyond What Has Been Au-

SSE

II. The Inquiry into Whether There Is Cause for

a Procedural Default Should Be First Un-

dertaken by State Courts.

CONCLUSION ..

ill

TABLE OF AUTHORITIES

CasEs

Alcorn v. Smith, 724 F.2d 37 (6th Cir. 1983)

Bettis v. United States, 325 A.2d 190 (D.C. 1974)

Brady v. Maryland, 373 U.S. 83 (1963) .

Briley v. Bass, 750 F.2d 1238 (4th Cir. 1984)

Brown v. Allen, 344 U.S. 448 (1953)

Brown v. State, 452 S.W.2d 176 (Mo. 1970)

Carrier v. Hutto, 724 F.2d 396 (1983), aff’d on

rehearing, Carrier v. Hutto, 754 F.2d 520 (4th

Cir.) (en bane), cert. granted sub nom Sielaff

v. Carrier, 53 U.S.L.W. 3911 (1985)

Commonwealth v. McCloud, 458 A.2d 219 (Pa.

Super. 1983)

Commonwealth v. Rainey, 422 A.2d 652 (Pa. Su-

per. 1980) .

Commonwealth v. Silvis, 452 A.2d 1045 (Pa. Su-

per. 1982)

Cooper v. Fitrharris, 586 F.2d 1325 (9th Cir. 1978)

Crowe v. State, 194 N.W.2d 234 (S.D. 1972)

Dees v. State, 492 S.W.2d 849 (Mo. App. 1973)

Engle v. Isaac, 456 U.S. 107 (1982)

Evans v. Bennett, 440 U.S. 1301 (1979)

Francois v. State, 423 So.2d 357 ( Fla. 1982)

Harrington v. California, 395 U.S. 250 (1969)

Harris v. State, 367 So.24 524 (Ala. Cr. App. 1978) .

Houston v. Estelle, 569 F.2d 372 (Sth Cir. 1978)

Johnson v. State, 238 N.E.2d 651 (Ind. 1968)

Page

9

13,18

15, 16

9

iv

TABLE OF AUTHORITLES—Continued

Page

Jones v. Barnes, 463 U.S. 745 (1983) 14

Kaufman v. United States, 394 U.S. 217 (1969) D

Mackey v. United States, 401 U.S. 667 (1971) 2

Mathis v. Warden, 471 P.2d 233 (Nev. 1970) 15

Marvfield v. State, 700 P.2d 115 (Idaho App. 1985) 10

McMann v. Richardson, 397 U.S. 759 (1970) .. me}

Miller v. Pate, 386 U.S. 1 (1967) . 19

Milton v. Wainwright, 407 U.S. 371 (1972) 15

Mitchell v. State, 609 S.W.2d 333 (Ark. 1980) 13

Morton v. Henderson, 389 F.2d 699 (6th Cir. 1967) i)

Naranjo v. Ricketts, 696 F.2d 83 (10th Cir. 1982) 00. §=24

Parker v. North Carolina, 397 U.S. 790 (1970) 12

People v. McIntyre, 324 N.E.2d 322 (NY 1974) . 10

People v. Smith, 338 N.E.2d 207 (ill. App. 1975) . 10

Powell v. Alabama, 287 U.S. 45 (1982) 17, 20

Rose v. Lundy, 455 U.S. 509 (1982) 22

State v. Alvarez, 177 N.W.2d 591 (Neb. 1970) 13

State v. Butler, 564 P.2d 828 (Wash. App. 1977),

reh’g denied (1977) 13

State v. Gutierrez, 618 P.2d 315 (Hawaii App. 1980) 9

State v. Sandy, 452 N.B.2d 515 (Ohio 1982) i)

State v. Williams, 468 P.2d 909 (Or. App. 1970) 9

Stone v. Powell, 428 U.S. 465 (1976) 7

Strickland v. Washington, — U.S. —, 80 L.Ed.2d

674 (1984) _W.. (iteiilacinanienial | 6, 17,

Sweet v. Cupp, 640 F.2d 233 (9th Cir. 1981)

Vv

TABLE OF AUTHORITIES—Continued

Townsend v. Sain, 372 U.S. 293 (1963)

United States v. Agurs, 427 U.S. 97 (1976)

United States v. Bagley, No. 84-48, slip op.

(July 2, 1985)

Umted States v. Benthiem, 456 F.2d 165 (1st Cir. 1972) 9

United States v. DeCoster, 624 F.2d 196 (D.C.

Cir. 1976)

United States v. Frady, 456 U.S. 152 (1982)

United States ex rel. Trantino v. Hatrack, 563

F.2d 86 (3d Cir. 1977), cert. denied, 435 U.S. 928

(1978)

Wamuvright v. Sykes, 433 U.S. 72 (1977)

CONSTITUTIONAL PROVISIONS

kourth Amendment of the United States Constitution 7

Sixth Amendment of the United States Constitu-

tion =m . 7, 10, 11, 12, 17

K‘ourteenth Amendment of the United States Con-

stitution ; ‘

STATUTES AND RULES

28 U.S.C. § 2254

Rule 9:\b), Rules Governing Section 2254 Cases

OTHER AUTHORITIES

Bureau of Justice Statistics, Special Report, U.S.

Dept. of Justice, Federal Review of State Pris

Oner Petitions Habeas ( OT pus (March, LYS4 )

17

vl

TABLE OF AUTHORITIES—Continued

Page

Doub, The Case Against Modern Habeas Corpus,

57 Am. Bar Ass’n Journal. 323 (1971) 21

Friendly, Js Innocence Irrelevant? Collateral At-

tack on Criminal Judgments, 38 U.Chi.L.Rev.

142 (1970) sciieiidiiaiaiebiditel eS

M. Fleming, The Price of Perfect Justice (1974) . 19

56 Ill. Bar Jn’1 955 (1968) 19

Strazella, Ineffective .‘ssistanc eof Counsel Claims:

New Uses, New Problems, 19 Ariz. L. Rev. 443

(1977) ' ‘ 19

Lambard., The State of the Sec ond Circuit, 25 Reeord.

Assn. of Bar of City of New York 511 (1970) 10

+

No. 84-1554

ra’

Vv

In The

Supreme Court of the United States

October Term, 1984

o>.

———7

ALLYN R. SIELAFF, Director,

Virginia Department of Correcticns,

Petitioner,

CLIFFORD W. CARRIER,

Respondent.

sy

Vv

On Writ of Certiorari to The United States Court

of Appeals for The Fourth Circuit

BRIEF OF AMICI CURIAE

n

_

INTERESTS OF AMICI CURIAE

Amici curiae, by their Attorneys General, file this

brief in support of petitioner pursuant to United States

Supreme Court Rule 36.4.

The court below held that attorney error not amount-

ing to ineffective assistance of ccunsel could constitute

cause for a state procedural default, the occurrence of

which could otherwise preclude federal habeas relief in

J

9)

the absence of a showing of cause and prejudice. Wain

wright v. Sykes, 433 U.S. 72 (1977).

The interests of the several states and territories in

this case are readily apparent. All have rules of pro-

cedure, the default of which can bar a criminal defendant

from litigating claims of error in state appellate courts

and by collateral attack in federal courts.

The burden imposed on the criminal justice systems

of the states by easily available federal collateral review

is well known. Ready access to federal habeas courts to

relitigate the validity of state criminal convictions drains

limited state resources, contributes to lengthy delay in the

final resolution of criminal cases, attenuates the accuracy

of the final result, and diminishes public confidence in the

ability of state courts to enforce the law. See Friendly,

Is Innocence Irrelevant? Collateral Attack on Criminal

Judgments, 38 U.Chi. L.Rev. 142 (1970). Moreover, as

Justice Jackson wrote, ‘‘ [i]t must prejudice the occasional

meritorious application to be buried in a flood of worth-

less ones.” Brown v. Allen, 344 U.S. 443, 537 (1953) (Jack-

son, J., concurring).

These concerns have not escaped the notice of the

Court and need not be extensively reviewed. Engle v.

Isaac, 456 U.S. 107 (1982); Mackey v. United States, 401

U.S. 667 (1971) (<larlan, J., concurring).

The decision of the Court of Appeals is a matter of

compelling importance not just to those jurisdictions in

the Fourth United States Circuit, but to the others as well,

both because the Court of Appeals has lowered the gates

tc federal habeas courts and because its decision is a de-

velopmental milestone in an area of law not yet well

settled. We believe the Fourth Circuit Court of Appeals

has set off down the wrong path.

SUMMARY OF ARGUMENT

1. Federal collateral review of state criminal con-

victions intrudes, at great cost, on the finality of state

judgments, often with little positive benefit. This Court

undertook to limit the availability of federal habeas re-

view of procedurally defaulted claims to those cases most

likely to involve miscarriages of justice by its decision

in Watnwright v. Sykes, 433 U.S. 72 (1977). The decision

of the Court of Appeals that attorney errors or omissions

may constitute ‘‘cause” to bypass the procedural default

bar of Sykes, even though such errors or omissions may

not be serious enough to constitute ineffective assistance

of counsel, totally undermines the effectiveness of this

Court’s rule. The Court has distinguished between ‘‘or-

dinary errors” and those of constitutional significance.

The Court of Appeals has ignored this distinction and

adopted a rule that almost insures that state criminal

judgments will rarely be final. That rule is contrary to

the decisions of this Court.

Moreover, the rule adopted by the Court of Appeals

creates a substantial risk of inaccurate resolution of fac-

tual issues in order to address an illusory problem, for

federal habeas corpus proceedings rarely uncover gen-

uine grounds for relief.

2. The reasons for the exhaustion requirement of

28 U.S.C. § 2254 are as much applicable to the determina-

tion of whether cause exists to excuse a state procedural

default as they are to any other constitutional claim. The

decision of the Court of Appeals is likely to encourage

bypass of state courts and will certainly contribute to the

perception that federal collateral review is almost always

inevitable.

Oo

ARGUMENT

I.

The Opinion of the Court of Appeals Without Good Reason

Expands the Availability of Federal Review Beyond

What Has Been Authorized by This Court

It would be hard to imagine a more effective general

nullification of the finality of state court judgments than a

rule that attorney omissions of less significance than in-

effective assistance of counsel may be considered cause for

a procedural default. The Court of Appeals decision to that

effect turns a procedural default, intended by Wainwright

v. Sykes, 433 U.S. 72 (1977), to be in most cases a bar to

federal habeas courts, into a ground for relief. What is

not cause for a procedural default if the cecurrence of the

default is cause? If the Court of Appeals meant to sug-

gest that only a deliberate bypass of a state procedural

rule would bar federal review, it seems clear that this ap-

proach was firmly rejected in Sykes.

The Court of Appeals summarized its holding by say-

ing:

Procedural default is excused not when counsel rea-

sonably but incorrectly exercises her judgment, but

qr

when through ignorance or oversight, she fails to ex-

ercise it at all, in dereliction of the duty to represent

her client. This is what we mean by attorney error,

and in such a case, the defendant should not be penal-

ized under Wainwright for a momentary lapse by

counsel. Carrier v. Hutto, 724 F.2d 396, 401 (1983),

aff'd on rehearing, Carrier v. Hutto, 754 F.2d 520

(4th Cir.) (en banc), cert. granted sub nom. Sielaff v.

Carrver, 53 U.S.L.W. 3911 (1985).

The Court of Appeals’ formulation has force only if

it is assumed that it is the proper function of federal

habeas courts to monitor every “momentary lapse by coun-

sel” that might occur in state criminal proceedings. That

assumption is clearly wrong.

[t was important to the Court in Sykes that two com-

peting interests be served. ‘The Court hoped that the

,

“cause and prejudice” rule announced would limit access

to federal habeas courts to the most meritorious cases,

with the several benefits that progress toward this goal

would bring. At the same time, the Court perceived “...

that the rule will not prevent a federal habeas court from

adjudicating for the first time the federal constitutional!

claim of a defendant who in the absence of such an ad-

judication will be the victim of a miscarriage of justice.”

Td. at 91 (emphasis added).

The narrowing intent of Sykes is consistent with the

Court’s long-time view of the function of federal habeas

corpus to test ‘‘the very gravest allegations.” Townsend

v. Sain, 372 U.S. 2938, 312 (1963); Kaufman v. United

States, 394 U.S. 217 (1969).

b

The ‘‘cause and prejudice” rule of Sykes is effectively

a device for withholding federal review in those cases

where defaulted claims of error do not bear on whether

the result was a miscarriage of justice. In Sykes the

Court took care to note that the rule would not prevent a

litigant who had been the victim of a miscarriage of jus-

tice from presenting a federal constitutional claim for the

first time in a federal habeas court. Later, in Engle v.

Isaac, the Court held that although the nature of the de-

faulted claim of constitutional error as it affects the ac-

curacy of the finding of guilt might well affect the deter-

mination of cause and prejudice, the bar of Sykes was not

meant to apply only against such claims. Jsaac, 456 U.S.

107.

The rule announced by the Court in Sykes that claims

of error procedurally defaulted in state courts could not

be considered in federal habeas corpus proceedings absent

a showing of cause for the default and prejudice to the

prisoner is consistent with the view that federal collateral

review should not be available unless but for the alleged

error there is a reasonable probability the outcome could

be different. In this connection, ‘‘fairness” is a concept

related to the reliability of the outcome of the trial. See

Strickland v. Washington, — U.S. —, 80 L.Ed.2d 674

(1984).

Judge Friendly argued persuasively that federal col-

lateral review of state criminal adjudications should gen-

erally not be available unless the prisoner could make some

colorable showing of innocence. Friendly, supra at pp. 160,

et seq. Although the Court has, of course, not gone this

far, its recent decisions have pointed in that direction

rather than toward a more expansive view of the availabil-

ity of federal collateral review. The limitation on the

~“]

availability of federal habeas corpus to test Fourth Amend-

ment exclusionary rule claims announced in Stone v. Pow-

ell, 428 U.S. 465 (1976), was premised in part on the cir-

cumstance that exclusion of evidence is not a personal

right of an accused person. Failure by the defendant or

his counsel to take advantage of a remedial procedure

does not deprive the defendant of anything fundamental to

his right to a fair trial, nor does it increase the risk of an

inaccurate verdict of guilt. In such circumstances it is

particularly appropriate to limit the availability of fed-

eral collateral review.

Similarly, the Court’s observation in Sykes that the

cause and prejudice bar would not apply to the claim of a

defendant who would be the victim of a miscarriage of

justice in the absence of federal habeas relief suggests a

corresponding limitation on the availability of federal

habeas relief to at least those cases presenting a constitu-

tional claim casting genuine doubt on the reliability of the

verdict or the fairness of the trial. See also Engle v.

Isaac, 456 U.S. at 107.

The decision of the court below goes in the opposite

direction. There was no showing that the claim Carrier

wished to litigate was one casting doubt on the reliability

of the verdict of guilt. Instead, Carrier asserted that he

had been deprived of an opportunity to examine state-

ments given to the police by the victim of his crime after

the court had inspected them iw camera. It was manifest

that his lawyer’s failure to appeal the trial court’s order

did not amount to a violation of the Sixth Amendment

standard for effective assistance of counsel. 724 F.2d at

400.

It was not even suggested by the Court of Appeals

that the claimed error cast any doubt on the accuracy of

the finding that Carrier was guilty of the crime with which

he was charged. Instead the lower court held that errors

of counsel—if indeed counsel did err—falling short of in-

effective assistance in a constitutional sense could consti-

tute “cause” within the meaning of Sykes. This is a very

broad opening to federal habeas litigation. It means simply

that any time counsel fails to object at trial, for whatever

reason, or fails to include any issue on appeal, or deliber-

ately or inadvertently omits to raise some legal issue, for

whatever reason, and is procedurally barred, a federal

court must undertake to consider the effect of the error,

and must do so in the absence of any state court ruling on

the question.

Between 1961 and 1982 there was a 690% increase in

the number of habeas corpus petitions filed in federal

courts by state prisoners. Bureau of Justice Statistics,

Special Report, U.S. Dep’t of Justice, Federal Review of

State Prisoner Petitions—Habeas Corpus at 1-2 (March,

1984). A Department of Justice study reflects that be-

tween 1977 and 1982 there was a 115% increase in appel-

late review of state prisoner habeas petitions, while over-

all appellate activity increased at the substantially lower

rate of 51%. Id. In only 3.2% of the petitions filed was

the prisoner given any kind of relief, and in only 1.8%

of the petitions filed did the prisoner achieve any kind of

release. Id. Successful habeas claims, in the great major-

ity of cases, result not in the release of the prisoner but

rather in a requirement for further judicial review. Id.

It is apparent that most federal habeas litigation has little,

if anything, to do with miscarriages of justice. Clearly

9

there is no need to expand the availability of relief as

the Court of Appeals has done. As this Court has pointed

out, ‘‘[o]nce the defendant’s chance to appeal has been

waived or exhausted ... we are entitled to presume he

stands fairly and finally convicted ....” United States v.

Frady, 456 U.S. 152, 164 (1982).

The foreordained failure of undertaking to review

all attorney errors causing procedural default can be ap-

preciated by taking account of the formidable array and

volume of ineffective assistance claims typically presented

to courts. These have included complaints about the qual-

ity of examination and cross-examination of witnesses,!

counsel’s failure to interview witnesses who could have

supplied no testimony useful to the accused,? counsel’s

omission to raise frivolous issues or advance baseless

claims,’ tactical use of a defendant’s past criminal record,‘

failure to move for a change of venue where there was

nothing to show the defendant did not receive a fair trial,5

failure to object to instructions that correctly stated the

law,® failure to call particular witnesses believed by the

defendant to be more valuable to his cause than those se-

lected by his counsel,’ failure to demand a preliminary

\United States v. Benthiem, 456 F.2d 165 (1st Cir. 1972);

State v. Gutierrez, 618 P.2d 315 (Hawaii App. 1980).

2Commonwealth v. Rainey, 422 A.2d 652 (Pa.Super. 1980).

3Commonwealth v. Silvis, 452 A.2d 1045 (Pa.Super. 1982).

‘State v. Williams, 468 P.2d 909 (Or.App. 1970).

‘Morton v. Henderson, 389 F.2d 699 (6th Cir. 1967).

*Francois v. State, 423 So.2d 357 (Fla. 1982).

7Johnson v. State, 238 N.E.2d 651 (Ind. 1968); State v. Sandy,

452 N.E.2d 515 (Ohio 1982).

10

hearing,’ failure to mount a constitutional attack against a

plainly constitutional statute,? and failure of counsel to

challenge the jurisdiction of a court that obviously had

jurisdiction.'° The apparently unlimited supply of imagi-

native bases for allegations of Sixth Amendment violation

include contentions by pro se litigants who insisted on

representing themselves at trial that they were denied ef-

fective assistance of counsel because trial judges allowed

them toe proceed."

It is easy enough to say that each of these examples

presents the potential for a miscarriage of justice, but if

that is truly a feature of the case the matter is one of

ineffective assistance of counsel, not something less. To

allow less trivializes the Sixth Amendment protections.

If the claims of a prisoner are not at least of the degree of

significance of a separate Sixth Amendment claim, there

is no good purpose to be served by a second course of re-

view. Judge J. Edward Lumbard of the Court of Ap-

peals for the Second Circuit has said:

For all our work on thousands of state prisoner cases

I have yet to hear of one where an innocent man had

been convicted. The net result of our fruitless med-

dling in search of the non-existent needle in the ever-

larger haystack has been a serious detriment to the

administration of criminal justice by the states. The

State of the Second Cireuit, 25 Record, Assn. of Bar of

City of New York 511, 516 (1970).

8Crowe v. State, 194 N.W.2d 234 (S.D. 1972).

9Maxfield v. State, 700 P.2d 115 (idaho App. 1985).

10Brown v. State, 452 S.W.2d 176 (Mo. 1970).

People v. Smith, 338 N.E.2d 207 (ill. App. 1975); People

v. Mcintyre, 324 N.E.2d 322 (NY 1974).

11

The ease with which an ineffective assistance claim

can propel a prisoner into a course of collateral federal re-

view makes clear the problem is large enough when review

of attorney error is limited to such claims. The too com-

mon result of habeas review of ineffectiveness claims is

illustrated by the Court of Appeals’ illuminating observa-

tion in Briley v. Bass, 750 F.2d 1238, 1247 (4th Cir. 1984):

The conduct of petitioner’s trial co-counsel .. . has

been extensively reviewed by both the Virginia state

courts on collateral attack, with the benefit of an evi-

dentiary hearing, and by the magistrate at the dis-

trict court proceedings below, and none of these re-

viewing authorities have found counsel to have been

madequate to their task. Nevertheless, we have un-

dertaken our own review of the record im light of the

numerous aliegations of ineffective assistance pre-

sented by petitioner, and we find those allegations

meritless. (Emphasis added.)

Clearly enough, expanding the availability of federal

habeas review to claims of attorney error falling short of

Sixth Amendment violations would present a nearly in-

surmountable obstacle to the goal of affording maximum

deference to state court judgmeats.

The impact of such a rule would be particularly deva-

stating for those states with capital punishment laws. As

is well known, strategies of delay, facilitated by filing

successive petitions for federal habeas review, are com-

monly pursued in these cases. See, e.g., Evans v. Bennett,

440 U.S. 1301 (1979) (opinion in chambers), and it seems

unlikely that the abuse of process provision of Rule 9(b),

Rules Governing Section 2254 Cases, authorizing dismissal

of successive petitions, would be held to bar a claim pre-

viously defaulted for cause, even if ‘‘cause” could be prac-

12

tically anything. The Court of Appeals’ decision unwisely

affords counsel bent on delaying capital cases, or others,

an impressive opportunity.

The Court of Appeals’ decision also ignores an im-

portant distinction drawn by the Court between errors of

counsel having constitutional importance and those deemed

not to justify relief from their consequences.

It was argued in McMann v. Richardson, 397 US.

799 (1970), that a plea of guilty was involuntary if it was

the result of counsel’s miscalculation about the admissibil-

ity of allegedly coerced confessions, as affected by a sub-

sequent change of law. The Court rejected the argument,

pointing out that a decision by a counseled defendant to

plead guilty must be based on judgments of counsel that

cannot be reliably certain about the future course of the

law or how a court might view given facts.. The Court’s

observation respecting the weight to be given counsel’s

judgements that do not fall short of the Sixth Amendment

standard is particularly significant in the present context:

It is no denigration of the right to trial to hold that

when the defendant waives his state court remedies

and admits his guilt, he does so under the law then

existing; further, he assumes the risk of ordinary er-

ror mn either his or his attorney’s assessment of the

law and facts. 397 U.S. at 774. (Emphasis added.)

See also Parker v. North Carolina, 397 U.S. 790 (1970).

The assumed risk holding of McMann v. Richardson

has been most commonly applied according to the relatively

narrow principle that a counseled defendant pleading

yuilty, and thereby knowingly waiving and forfeiting a

number of rights and procedural advantages, assumes the

risk that the decision to do so may be affected by counsel’s

13

ordinary errers in assessing the law and facts applicable

to the case.!

Nevertheless it is consistent with this Court’s limita-

tions on the availability of federal habeas relief to con-

sider procedural defaults of counsel falling short of in-

effective assistance to be ordinary error, the consequences

of which may fall upon the defendant without any affront

to fairness or accuracy. In Cooper v. Fitzharris, 586 F.

2d 1325 (9th Cir. 1978), the Court of Appeals for the Ninth

Cireuit viewed the ‘‘assumed risk” holding of McMann v.

Richardson as following logically from ihe fact that “the

Constitution does not guarantee representation that is in-

fallible.” 586 F.2d at 1325. Nor does the Constitution

guarantee that every legal issue or investigative step that

might come to mind will be pursued by counsel:

If given an unrestricted budget and freed of any con-

straints as to probable materiality or accountability,

a lawyer might have cheerfully logged in many hours

looking for the legal equivalent of a needle in a hay-

stack. As already noted, a millionaire might have re-

tained counsel to leave not a single stone unturned.

However, a defendant is noi entitled to perfection but

to basic fairness. United States v. DeCoster, 624 F.

2d 196, 211 (D.C. Cir. 1976).

It would harcly encourage effective legal representa-

tion to base a right to pursue federal relief on “ordinary

\Harris v. State, 367 So.2d 524 (Ala. Cr. App. 1978); Mitchell

v. State, 609 S.W.2d 333 (Ark. 1980); Bettis v. United States, 325

A.2d 190 (D.C. 1974); Dees v. State, 492 S.W.2d 849 (Mo. App.

1973); State v. Alvarez, 177 N.W.2d 591 (Neb. 1970); Mathis v.

Warden, 471 P.2d 233 (Nev. 1970); Commonwealth v. McCloud,

458 A.2d 219 (Pa. Super. 1983); State v. Butler, 564 P.2d 828

(Wash. App. 1977), reh’g denied (1977).

14

error’ or on decisions of counsel that may have the ap-

pearance of such error. Counsel’s ability to persuade a

jury, a trial judge or an appellate court often depends

greatly on separating important matters from those whose

only office is to draw attention away from whiat is signifi-

eant. “A brief that raises every colorable issue runs the

risk of burying good arguments .. . jn a verbal mound

made up of strong and weak contentions.” Jones v. Barnes,

463 U.S. 745, 753 (1983). Furthermore, counsel has no

duty to raise every nonfrivolous argument on appeal. /d.

The Court of Appeals’ holding is at odds with this prin-

ciple. Counsel’s omission to raise a constitutional issue

below barred a course of federal review of nothing more

than counsel’s judgment or error on a matter having little

potential for suecess on the merits.

The Court of Appeals’ invitation to federal habeas

courts to inquire into attorney errors of lesser magnitude

than ineffective assistance of counsel elevates such errors

to a level of constitutional importance. A finding that

counsel omitted to pursue a remedy for nondisclosure

could be cause, even though the underlying constitutional

claim would not meet the standard of materiality neces-

sary to justify federal relief. In short, the rule is one that

would require federal habeas courts to entertain clearly

unmeritorious claims.

In this Court’s cases involving the evaluation of

claimed constitutional error, the focus has consistently

been upon the justice of the resuit. Accordingly, in United

States v. Agurs, 427 U.S. 97 (1976), the Court held that

the state’s failure to disclose a murder victim’s prior crim-

inal record that would arguably have furnished evidence

15

of his violent character, supporting a defense theory of

justification, was not constitutionally material. The stand-

ard of materiality was to reflect the Court’s ‘‘ overriding

concern with the justice of the finding of guilt.” 427 U.S.

at 112. The Court pointed to the cumulative nature of

the undisclosed evidence, its incongruity, and the circum-

stance that it did not contradict the state’s evidence, hold-

ing that ‘‘if the omitted evidence creates a reasonable

doubt that did not otherwise exist, constitutional error has

been committed.” Jd.

A comparable view of the significance of reliability of

the trial result in evaluating claims of constitutional error

occurs in Harrington v. California, 395 U.S. 250 (1969),

where a confrontation clause violation was harmless error

because the strength of the case against the defendant

was overwhelming, leaving no reasonable doubt of the re-

lability of the result, and in Milton v. Wainwright, 407

U.S. 371 (1972), where a Massiah violation was harmless

error because the evidence independent of that errone-

ously admitted made out an overwhelming case of guilt.

The Court of Appeals characterized Carrier’s under-

lying constitutional claim as an error by the trial judge in

incorrectly applying the due process standards of Brady

v. Maryland, 373 U.S. 83 (1963), and Agurs when he re-

fused a request for discovery of the rape victim’s state-

ments to police because they contained nothing exculpa-

tory. 724 F.2d at 399. The correct standard, in Carrier’s

view, was whether the specifically requested evidence ‘‘was

‘material to guilt,’ Brady, 373 U.S. at 87, not whether it

was exculpatory.” Id.

The importance of this distinction is significantly

diminished by the Court’s opinion in Agurs, where no con-

16

stitutionally meaningful difference between exculpatory

evidence and evidence of the Brady variety was noted. In

its discussion of Brady the Court equated Brady requests

with requests for the disclosure of exculpatory evidence:

In many cases... exculpatory information in the pos-

session of the prosecutor may be unknown to defense

counsel. In such a situation he may make no request

at all, or possibly ask for “all Brady material” or for

“anything exculpatory.” ... Whether we focus on the

desirability of a precise definition of the prosecutor’s

duty or on the potential harm to the defendant, we

conclude there is no significant difference between

cases in which there has been merely a general request

for exculpatory matter and cases, like the one we

must now decide, in which there has been no request.

427 U.S. at 106-107.

Thus, the Court of Appeals’ holding is to the effect

that the omission of counsel to pursue the disclosure issue

on appeal is cause to place before a federal court nothing

more than a dispute over whether there is a difference be-

tween exculpatory evidence and evidence ‘‘material to

guilt,” and this in the face of reason to believe there is

not. Last term the Court held that undisclosed evidence

‘tis material only if there is a reasonable probability that,

had the evidence been disclosed to the defense, the result

of the proceeding would have been different.” Umited

States v. Bagley, No. 84-48, slip op. at 14 (July 2, 1985).

Constitutional error in these circumstances is that which

creates the possibility of a miscarriage of justice. Signifi-

cance of this point escaped the Court of Appeals. It is

just the kind of default exemplified by this case that this

Court can well afford to treat as final in view of its concern

with the connection between constitutional error and the

reliability of a finding of guilt.

It is counsel’s constitutional responsibility to per-

form according to the requirement that the proceeding

be genuinely adversarial. When counsel’s representation

meets this expectation there can be confidence in the re-

liability of the result. Strickland v. Washington, supra.

Thus, ‘‘[t]he benchmark for judging any claim of ineffec-

tiveness must be whether counsel’s conduct so undermined

the proper functioning of the adversarial process that the

trial cannot be relied on as having produced a just result.’’

80 L.Ed.2d at 692-693. This view of the constitutional basis

of the right to effective assistance of counsel not only de-

fines a right to a certain standard of conduct, it also limits

the availability of federal relief to those cases falling out-

side that standard. The limitation is rendered meaning-

less by the Court of Appeals decision that, notwithstanding

the Sixth Amendment limitations on the right to relief

from the conduct of counsel, federal relief may be avail-

able on another theory for those omissions of counsel not

considered sufficient to diminish confidence in the reliabil-

ity of the trial result.

Although the right to the assistance of counsel is an

element of basic fairness within the contemplation of the

due process clause of the Fourteenth Amendment, Powell

v. Alabama, 287 U.S. 45 (1932), the inquiry into what

standards counsel must meet beyond the threshold due pro-

cess right has been a matter of Sixth Amendment analy-

sis. Strickland, supra. The Court of Appeals’ decision

effectively creates a due process right to effective assist-

ance of counsel that is more expansive than that occurring

under the Sixth Amendment. There is certainly no war-

rant in this Court’s cases for this tortured result, and

nothing to commend it as a matter of legal policy.

18

The cases establish that it was not the Court’s intent

either to define errors not likely to undermine confidence

in the reliability of the trial outcome as constitutionally

significant or to establish a right to federal review of

lesser attorney errors. The decision of the Court of Ap-

peals leaves no procedural bar and invites a proliferation

of spurious claims. As the Court has said:

The availability of intrusive postrial inquiry into at-

torney performance or of detailed guidelines for its

evaluation would encourage the proliferation of inef-

fectiveness challenges. Criminal trials resolved un-

favorably to the defendant would increasingly come to

be followed by a second trial, this one of counsel’s

unsuccessful defense. Counsel’s performance and

even willingness to serve could be adversely affected.

Strickland, 80 L.Ed.2d at 695.

Notwithstanding the circumstance that ‘‘ineffective-

ness claims have become regrettably common,’’ Beftis v.

United States, 325 A.2d at 196 (D.C. 1974), they amount to

stigmatizing assertions that counsel is not professionally

reliable. Attorneys resent these claims, and those with

the most to lose from being victimized by them, the most

experienced and respected members of the bar, will be the

quickest te distance themselves from criminal cases if it

becomes any easier to subject counsel to a course of federal

litigation on the subject of their representation of defend-

ants. The Court of Appeals gave no consideration to this

problem, but we think it another important argument

against its holding.

A most significant reason for approaching the ques-

tion of expanding the availability of federal habeas relief

with greater caution than that exercised by the Court of

Appeals is that facts related to the conduct of counsel

19

generally do not appear of record in the trial where the

constitutional error assertedl; occurred. The problem of

reconstructing the facts is a serious one. ‘‘The motives of

the defendant who may be pressed for a viable claim are

more suspect as time goes on, and the ability of the parties

and the court to later reconstruct anything like a reason-

able facsimile of what actually happened dissipates.’’

Strazella, Ineffective Assistance of Counsel Claims: New

Uses, New Problems, 19 Ariz. L. Rev. 443, 463 (1977).

More generally, it must be expected that collateral at-

tacks on state criminal judgments are susceptible to the

substantial risk that not all facts necessary to accurately

resolve the dispute will be placed before the federal courts

even if the information is available.

One writer has suggested that the decision in Miller

v. Pate, 386 U.S. 1 (1967), was based on a factual error.

M. Fleming, The Price of Perfect Justice, 31-35 (1974).

In Miller, the Court overturned an Illinois murder-rape

conviction in the belief that the prosecutors conducting the

case had deliberately misrepresented to the jury that a

paint-stained pair of shorts was bloodstained. Following

the decision, the Grievance Committee of the Illinois State

Bar Association conducted an extensive ethics investiga-

tion into the charge of deliberate misrepresentation. It

reported that:

At the trial, which took place in 1956, the State chem-

ist testified that there were bloodstains on the shorts

in question. Prior to the trial, the prosecutors had

been given a laboratory report from the Illinois State

Bureau of Criminal Identification which disclosed that

the shorts did, in fact, contain blood. The State

chemist further testified at the trial that the blood

on the shorts was type ‘‘A” which was the same type

as that of the victim. 56 Ill. Bar Jn’l 955, 956 (1968).

20

It is likely that federal habeas proceedings will be con-

ducted by counsel who did not participate in the prisoner’s

state trial. The record of the case will often be the prod-

uct of multiple state proceedings and may be very volum-

inous. The record may be only partial, by design of state

appellate counsel or by omission, and it may not be readily

apparent that this is so. Federal collateral review thus

contains a built-in mechanism for attenuating the facts of

the case. This risk to the accuracy of factual determina-

tions, inherent in all collateral review, becomes more

pronounced as the conduct to be reviewed becomes more

trivial.

By contrast, the record placed before a federal habeas

court on a claim that a prisoner was denied any meaning-

ful representation, Powell v. Alabama, supra, is likely to

be factually complete. It is easy to discern the most

obvious failures of justice, and at all stages preceding the

petition for federal habeas corpus they will have been the

focus of everyone’s attention. On the other hand, if the

omission 9: counsel offered as ‘‘cause’’ to bypass a proce-

dural default was the failure to make a contemporaneous

objection or, as here, the failure to preserve an issue for

appellate review, the question may be aris.ag for the first

time in federal court. If there are facts of record bearing

on the claim, they may never have been transcribed be-

cause the issue was not a part of any state proceeding.

Or, if the facts respecting counsel’s conduct must be de-

veloped for the first time in federal proceedings, it may

be necessary to do so many years after the relevant facts

have faded in the memories of the principal participants.

The Court of Appeals view that lesser errors may consti-

tute ‘‘cause’’ under Sykes exacerbates a problem that is

serious enough without any amplification.

21

Past experience, as well as empirical evidence men-

tioned earlier, makes it clear that the attainment of jus-

tice does not hinge on expanding the availability of federal

habeas corpus relief. No good reason was advanced by the

Court of Appeals that would support a conclusion that

federal review of minor errors of counsel would contribute

in the slightest degree to the fairness of reliability of de-

terminations of guilt in criminal cases. This kind of re-

view is essentially superfluous and its costs are great, as

a former Assistant Attorney General of the United States

has observed:

Conviction in the state courts now has become merely

the starting point of interminable litigation. State ap-

peals are followed by successive petitions for federal

habeas corpus and successive federal appeals. What

is involved is a repetitious, indefinite, costly process

of judicial screening, rescreening, sifting, resifting,

examining and reexamining of state criminal judg-

ments for possible constitutional ervor. ... No other

nation in the world has so little confidence in its judi-

cial systems as to tolerate these collateral attacks on

criminal court judgments. ... This comparatively

new concept of federal habeas corpus has dangerously

prejudiced the delicate balance of federal-state rela-

tions and has seriously degraded the authority of the

states and their judicial tribunals. Doub, The Cuse

Against Modern Habeas Corpus, 57 Am. Bar Ass’n

Journal, 323, 326 (1971).

II.*

The Inquiry Into Whether There Is Cause for a Procedural

Default Should Be First Undertaken by State Courts

The Court of Appeals bypassed the Virginia state

courts in considering the “cause and prejudice” issue with

the remark that “[t]he exhaustion requirement of 28 USC

§ 2254 pertains to independent claims for habeas relief,

*The States of Alabama, Connecticut, Georgia and Illinois

do not join in this section of the brief.

bo

not to the proffer of Wainwright cause and prejudice.”

724 F.2d at 402. Thus, as the court viewed it, a petition

containing both a claim of attorney error constituting

cause to overcome the Sykes bar and a separate claim of

ineffective assistance of counsel would be subject to re-

mand to state courts only if the ineffectiveness claim were

unexhausted.

In Rose v. Lundy, 455 U.S. 509 (1982), the Court held

that considerations of federalism dictated that state courts

have the first opportunity to pass on claims of constitu-

tional error. The Sixth Cireuit Court of Appeals con-

eluded in Alcorn v. Smith, 724 F.2d 37 (6th Cir. 1983), that

these considerations compelled the conclusion that the

cause issue was subject to the exhaustion requirement.

This question substantially overlaps the concerns ad-

dressed earlier. For the reasons expressed in Part I of

this brief, the Court should conclude that considerations

of federalism argue against exceptions to the exhaustion

rule that would broaden the availability of federal colla-

teral review.

The decision of the Court of Appeals deprives the

exhaustion rule of much of its force. A purpose of the

exhaustion requirement was to permit state courts the

first opportunity to pass on matters affecting the protec-

tion of the accused’s federal constitutional rights. Rose

v. Lundy, supra. Applying the Court of Appeals’ de-

cision, this purpose is to be overlooked on a question of

cause. No good reason was advanced in support of this

23

precept. To the contrary, the reasons for comity apply

as much to the ‘‘cause” determination as to any other issue

on which federal courts are to await the judgment of state

courts. State rules of procedure often afford relief from

procedural defaults, as is the case in Virginia. The Court

of Appeals has furnished no compelling reason why a

habeas petitioner should be permitted, at his option, to

proceed directly to federal court without ever presenting

ee

his “cause” to the state judiciary. If Carrier had pre-

sented his cause claim to the Virginia courts and succeeded

in having his underlying constitutional claim considered,

either there would have been no occasion for federal in-

tervention or federal review would at least have been ac-

companied by a state court’s consideration of the consti-

tutional issue based on a view of the facts from one step

closer to the relevant occurrences.

The decision below builds into the law an advantage

hich could actually encourage counsel to default pro-

‘durally in order to bypass state courts likely to be more

amiliar with the factual and procedural background of

the case. The benefit to a defendant without a meritorious

claim is obvious. It is also obvious that conferring such a

benefit is a detriment to the truth-seeking function of the

law.

In addition, every time a federal court refuses to

await the exhaustion of state remedies it contributes to

the perception that it is inevitable there will be a second

run in federal court through all of the issues that have

been or should have been litigated in the state courts,

where the primary responsibility for enforcing state crim-

inal law rests. It is a reflection of this fact that frequent

efforts have been made by states to waive the exhaustion

24

requirement on the theory that if a constitutional issue

must always be litigated in federal courts one might as

well begin there. Cf. Houston v. Estelle, 569 F.2d 372

(5th Cir. 1978) (state waiver of exhaustion accepted) ;

Naranjo v. Ricketts, 696 F.2d 83 (10th Cir. 1982); Sweet

v. Cupp, 040 F.2d 233 (9th Cir. 1981) ; United States ex rel.

Trantino v. Hatrack, 563 F.2d 86 (3d Cir. 1977), cert.

dented, 435 U.S. 928 (1978) (state waiver of exhaustion not

authorized).

If the decision of the Court of Appeals is allowed to

stand, it will obviously undermine this Court’s emphasis

on the principle of deference to state court judgments.

CONCLUSION

The Court of Appeals’ expansion of the availability

of the writ of habeas corpus in federal courts is not only

unnecessary, it is an unwarranted expansion of this Court’s

cases and lays the groundwork for greater and costlier

intrusions into the law enforcement functions of state

eourts. Public confidence in the ability of hoth the federal

and state judicial systems to uphold the law is under-

mined by the perception that criminal judgments entered

in state courts are rarely final. Yet, the extensive oppor-

tunities for federal collateral review result in relief in

only the rarest cases, suggesting that much of such review

is wasted effort. The conflict between state and federal

institutions, intrinsic in the process of federal collateral

review, is magnified by the failure of federal courts to

give proper weight to the rule requiring exhaustion of

state remedies before federal relief may be pursued.

25

The judgment of the Court of Appeals for the Fourth

Cireuit should be reversed.

Respectfully submitted,

James T'HoMas JONES

Attorney General of Idaho

*Lynn E. Tuomas

Solicitor General

Statehouse, Room 210

30ise, Idaho 83720

(208) 334-2400

*Counsel for Amici Curiae