Respondents Brief — Coleman v. Thompson

Supreme Court brief1990

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CHARLES E. THOMPSON, WARDEN,

Respondent.

~ Om Writ Of Certiorari To The United States

Court Of Appeals For The Fourth Circuit

~~ BRIEF ON BEHALF OF RESPONDENT

SE Se eas =

| eae Attorney General of Virginia

oe 4 J H.

“a Chief Deputy Attorney General

STEPHEN D. P.oseNTHAL

Deputy Attorney General

Jerry P. SLONAKER

Senior Assistant Attorney General

*“DonaLpD R. Curry 3

Senior Assistant Attorney General

* Office of the Attorney General

ae rs pea oust hag ae |

iz : ay Richmond, ao

e (804) (304) 786-4624

Be . . “Counsel of Record

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We st inact 42 re

II.

ITT.

IV.

QUESTIONS PRESENTED

WHEN THE SUPR.ME COURT OF VIRGINIA

EXPRESSLY GRANTED THE COMMONWEALTH’S

MOTION TO DISMISS PETITIONER’S STATE

HABEAS CORPUS APPEAL, AND THE MOTION

WAS BASED SOLELY ON PETITIONER’S

UNTIMELY NOTICE OF APPEAL, DOES HARRIS V.

REED, 489 U.S. 255 (1989), PRESENT ANY OBSTA-

CLE TO ENFORCEMENT OF THE PROCEDURAL

DEFAULT DOCTRINE?

DOES THE “DELIBERATE BYPASS” TEST HAVE

ANY APPLICATION IN THE CONTEXT OF A PRO-

CEDURAL DEFAULT WHICH OCCURRED DUR-

ING A STATE COLLATERAL APPEAL?

CAN A PETITIONER SUCCESSFULLY ASSERT

ATTORNEY ERROR AS “CAUSE” FOR A DEFAULT

WHICH OCCURRED DURING STATE HABEAS

CORPUS PROCEEDINGS WHERE HE HAD NO

CONSTITUTIONAL RIGHT TO COUNSEL BUT

WAS REPRESENTED BY THREE ATTORNEYS OF

HIS OWN CHOOSING?

DOES THE “NEW RULE” DOCTRINE PRECLUDE

FEDERAL HABEAS RELIEF IN THIS CASE?

TABLE OF CONTENTS

Page

STATEMENT OF THE CASG.....cccccccccnctasesus 1

SUMMARY OF ARGUMENT.............-..ceeee-: 5

ARGUMENT: ....ccscconsscccssucvaseseeeene nae 7

II.

THE “PLAIN STATEMENT” RULE IS EITHER

INAPPLICABLE TO THIS CASE OR HAS

BEEN PULLY SATIRGUBAD. ...cccvcsscaseueun

A. THE “PLAIN STATEMENT” RULE IS

INAPPLICABLE WHERE, AS HERE, IT

CANNOT FAIRLY BE SAID THAT THE

STATE COURT RESTED ITS DECISION

PRIMARILY ON FEDERAL LAW........

B. WHEN THE VIRGINIA SUPREME

COURT GRANTED THE COMMON-

WEALTH’S MOTION TO DISMISS COLE-

MAN’S STATE HABEAS APPEAL, AND

THE MOTION WAS BASED SOLELY

UPON COLEMAN’S UNTIMELY NOTICE

OF APPEAL, THE “PLAIN STATEMENT”

RULE WAS FULLY SATISFIED. .........

C. COLEMAN’S NUMEROUS UNEQUIVO-

CAL CONCESSIONS THAT THE VIR-

GINIA SUPREME COURT NEVER

REACHED THE MERITS OF HIS CLAIMS

PRECLUDES HIM FROM ASSERTING

THAT THE “PLAIN STATEMENT” RULE

WAS NOT SATTSPUBBA. .. cscccseveccaves

THE “CAUSE AND PREJUDICE” STAN-

DARD, RATHER THAN THE “DELIBERATE

BYPASS” TEST, GOVERNS COLEMAN'S

DEFAULT DURING HIS STATE HABEAS

CORPUS APPEAL. ... 2065010055355

A. THE “DELIBERATE BYPASS” TEST

MUST BE STRICTLY CONFINED TO

THE FACTS OF FAY V. NOIA. .........

ITI.

ee.

TABLE OF CONTENTS - Continued

Page

B. THE “CAUSE AND PREJUDICE” STAN-

DARD APPLIES REGARDLESS OF THE

STAGE AT WHICH THE DEFAULT

OCCURRED OR THE TYPE OF ATTOR-

NEY ERROR WHICH RESULTED IN THE

EEE TEE Eee

AN ERROR BY COUNSEL DURING STATE

COLLATERAL PROCEEDINGS CANNOT

CONSTITUTE THE “CAUSE” NECESSARY

TO EXCUSE A PROCEDURAL DEFAULT....

A. WHERE, AS HERE, A PETITIONER

CANNOT ESTABLISH “CAUSE” FOR

HIS DEFAULT, THE “MISCARRIAGE OF

JUSTICE” EXCEPTION PROVIDES ADE-

Byes a) 0.

B. THIS COURT’S PRIOR DECISIONS COM-

PEL THE CONCLUSION THAT A DEFEC-

TIVE PERFORMANCE BY HABEAS

COUNSEL IS NOT “CAUSE” ............

1. There is no constitutional right to

counsel during state habeas corpus

2. The right to effective assistance of

counsel is totally dependent on the

existence of a constitutional right to

TABLE OF CONTENTS - Continued

Page

In the absence of a constitutional right

to counsel and a violation of the right

to effective assistance, the petitioner

bears the risk of attorney error. .....

An error by habeas corpus counsel is

not an “external factor” which pre-

vented or impeded Coleman from

complying with Virginia’s procedural

WU. 5 so6 en 554008bea sua Vie easnersees

a. Failure to file a timely notice of

appeal is clearly an “adequate”

SE I 6 od. o0 ces scabs ca5s3

b. Coleman’s default is unrelated to

the fact that his ineffective counsel

claims were being litigated on col-

RD I oo yg cece bane vcavn

C. SOUND REASONS SUPPORT THE CON-

CLUSION THAT AN ERROR BY HABEAS

COUNSEL IS NOT “CAUSE.” ..... Rekawns

IV. THE

Accepting Coleman’s definition of

“cause” would result in a flood of liti-

gation concerning the effectiveness of

state habeas counsel.................

Establishing habeas attorney error as

“cause” would subvert the interests of

finality, comity and federalism.......

“NEW RULE” DOCTRINE DICTATES

THAT PETITIONER CANNOT OBTAIN FED-

URPake TEPMUOUD GUEIEE. oc cece ccsnccecseses

CONCLUSION

Beeeceseegc ose evr Cavevetete2eee ve 6.8.8 8 8 68 oo 6 8 6 4 @

TABLE OF CITATIONS

Page

Cases

Ake v. Oklahoma, 470 U.S. 68 (1985) ..............--. 10

Anderson v. Bessemer, 470 U.S. 564 (1985)............ 12

Anselmo v. Sumner, 882 F.2d 431 (9th Cir. 1989)...... 24

Arce v. Smith, 889 F.2d 1271 (2d Cir. 1989), cert.

SO, TE es ee CHEE 6 bn hse Shee ds Wenesoses: 24

Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985) .... 14

Buchanan v. Kentucky, 483 U.S. 402 (1987)............ 36

Butler v. McKellar, 110 S.Ct. 1212 (1990) .......... 46, 47

Cabiniss v. Cunningham, 206 Va. 330, 143 S.E.2d 911

Sc ccc ate antbecuenhebs tesa teeenee cece eanceabe 39

Caldwell v. Mississippi, 472 U.S. 320 (1985). 9, 10, 11, 12

Coleman v. Bass, 484 U.S. 918 (1987).................. 3

Coleman v. Commonwealth, 226 Va. 31, 307 S.E.2d

ki Pe errr re Terr reer er er ae 2

Coleman v. Thompson, 895 F.2d 139 (4th Cir. 1990) ..... 3

Coleman v. Virginia, 465 U.S. 1109 (1984)......... "2, 47

Conquest v. Mitchell, 618 F.2d 1053 (4th Cir. 1980) .... 39

Daley v. Commonwealth, 132 Va. 621, 111 S.E. 111

SPE ee ree Py Perey reas Lee re 38

Deal v. Cincinnati Board of Education, 402 U.S. 962

PP Se iice Rb hee eoReE Ok Cae icceR cesta eR Le 37

Douglas v. California, 372 U.S. 353 (1963) ......... 28, 29

Dugger v. Adams, 489 U.S. 401 (1989)................ 39

Engle v. Isaac, 456 US. 107 (1962) ................ 15, 44

TABLE OF CITATIONS - Continued

Page

Evitts v. Lucey, 469 U.S. 387 (1985)....... 21, 25, 31, 42

Ewing v. McMackin, 799 F.2d 1143 (6th Cir. 1986).... 24

Fay ©. Neis, TA UD. FO4 CIGD cece cccccsees passim

Frisby v. Schultz, 487 U.S. 474 (1988) ................ 14

Gabriel v. United States, 429 U.S. 877 (1976).......... 37

Harmon v. Barton, 894 F.2d 1268 (11th Cir. 1990)..... 24

Harris v. Reed, 489 U.S. 255 (1989)............... passim

Illinois v. Rodriguez, 110 S.Ct. 2792 (1990).......... 9, 10

Irwin v. Veteran's Administration, 59 U.S.L.W. 4021

ee ee hi eae s 54 eC k ak TRA SKA O-S 39

Johnson v. Zerbst, 304 U.S. 458 (1938)................ 21

Jones v. Barnes, 463 U.S. 745 (1983).................. 21

Kentucky v. Stincer, 482 U.S. 730 (1987).............. 36

Kimmelman v. Morrison, 477 U.S. 365 (1986)....... 33, 40

Mann v. Lynaugh, 840 F.2d 1194 (5th Cir. 1988)...... 39

McDowell v. Dye, 193 Va. 390, 69 S.E.2d 459 (1952)... . 38

Mears v. Mears, 206 Va. 444, 143 S.E.2d 889 (1965) .16, 38

Michigan v. Long, 463 U.S. 1032 (1983)........... passim

Milkovich v. Lorain Journal Co., 110 S.Ct. 2695

ge EI pop ere an eecty 2 fs me in A = oe 10

Monger v. Florida, 405 U.S. 958 (1972) ............... 37

Morrison v. Duckworth, 898 F.2d 1298 (7th Cir.

RY eater ey aren cards cake OTET RARE O URES 24

Murray v. Carrier, 477 U.S. 478 (1986) ........... passim

vii

TABLE OF CITATIONS - Continued

Page

Murray v. Giarratano, 109 S.Ct. 2765 (1989) ...30, 36, 39

O’Brien v. Mobil Oil, 207 Va. 707, 152 S.E.2d 278,

cert. denied, 389 U.S. 825 (1967) ................ 38, 39

Pennsylvania v. Finley, 481 U.S. 551 (1987)....... passim

Peyton v. Ellyson, 207 Va. 423, 150 S.E.2d 104 (1966) .... 38

Pierre v. Shulsen, 802 F.2d 1282 (10th Cir. 1986)...... 24

Prihoda v. McCaughtry, 910 F.2d 1379 (7th Cir.

RO ee DRE AA ny ae 33, 42, 43

Pulley v. Harris, 465 U.S. 37 (1984) .................. 33

Quinn v. Millsap, 109 S.Ct. 2324 (1989) .............. 10

Reed v. Ross, 466 US. 1 (1964) ................... 23, 40

Ross v. Moffitt, 417 U.S. 600 (1974) ............... 28, 29

Saffle v. Parks, 110 S.Ct. 1257 (1990).............. 46, 47

Saunders v. Reynolds, 214 Va. 697, 204 S.E.2d 421

Ss Kaa CRGETORMEYs SUSE MAS aA OR hwaNsas Kkeb eae 16

Sawyer v. Smith, 110 S.Ct. 2822 (1990) ............ 46, 48

School Bd. of Lynchburg v. Caudill Rowlett Scott, 237

WO: FOG, SFP Pa SUD CUO) vc ccccevccsecvecens 16

Simmons v. Lockhart, 915 F.2d 372 (8th Cir. 1990)..... 24

ee es | 16

Smith v. Murray, 477 U.S. 527 (1986) ..... 16, 23, 30, 39

Stokes v. Peyton, 207 Va. 1, 147 S.E.2d 773 (1966) .... 39

Strickland v. Washington, 466 U.S. 668 (1984)...... 32, 43

Teague v. Lane, 499 US. 268 (1989) ...........060000. 15

viii

TABLE OF CITATIONS - Continued

| Page

Thacker v. Peyton, 206 Va. 771, 146 S.E.2d 176 (1966)... . 39

Tharp v. Commonwealth, 211 Va. 1, 175 S.E.2d 227

pan ears ant aas Papa oan a ee ae Ee 38

Thomas v. Arn, 474 U.S. 140 (1985) ............... 34, 39

Towler v. Commonwealth, 216 Va. 533, 221 S.E.2d

Pe cad s oaksopucees oudukesweeeee sacceeetes 16

United States v. Leon, 468 U.S. 897 (1984)............ 47

Vaughn v. Vaughn, 215 Va. 328, 210 S.E.2d 140

a a ES Se rh ee CO he Caner yey ee 16

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

ELE Cnc eae idae ea ee eees 6, 20, 23, 27, 42, 44

Wainwright v. Torna, 455 U.S. 586 (1982).. 29, 31, 34, 37

Walker v. Commonwealth, 224 Va. 568, 299 S.E.2d

ee oe eee ere eee ie Ces 40

Whitley v. Bair, 802 F.2d 1487 (4th Cir. 1986), cert.

Se EP UD a oxo dene ca vnwievecee 24, 38

Yakus v. United States, 321 U.S. 414 (1944)........... 36

Zant v. Stephens, 462 U.S. 862 (1983) ................33

STATUTES AND RULES

§ 8.01-654 B 2, Code of Virginia .................... 42

- 19.2-264.2, Code of Virginia................ Aueueeas 2

Rule 13.3, Rules of the Supreme Court of the

EE PED bh ok cana VESeaG eS Cee eres teeeeeneheee 37

TABLE OF CITATIONS - Continued

Page

Rule 14.1(a), Rules of the Supreme Court of the

IN Peel cos ADR Ee Canes tos Dasa ue eed snes 36

Rule 5:5(a), Rules of the Supreme Court of Vir-

EE POT eee TT CUTE CECT OTE Oe Tee eT TEE TT ee 16

Rule 5:5(b), Rules of the Supreme Court of Vir-

SR KH uR TSC t rene en CeSDEES Red eer KON VNU COeROS COECes 38

Rule 5:9, Rules of the Supreme Court of Virginia...19, 35

Rule 5:9(a), Rules of the Supreme Court of Vir-

SEGA S Cuvee shee eehesissUeceba cae suab eset 5, 15, 38

OTHER AUTHORITY

Bator, Finality in Criminal Law and Federal Habeas

Corpus for State Prisoners, 76 Harv.L.Rev. 441

SEE Baw xk wiens cobs sae nd seunes Vadbhs Une Re ee 66 44

Friendly, Is Innocence Irrelevant? Collateral Attack

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

Ona cue dak eterscusenesepbessnpesveyes eds 21, 22

R. Stern, E. Gressman & S. Shapiro, Supreme Court

SE SE ED Sore occnsesccsncseCapehy oes 37

No. 89-7662

a oe

In The

Supreme Court of the United States

October Term, 1990

ROGEP KEITH COLEMAN,

Petitioner,

CHARLES E. THOMPSON, WARDEN,

Respondent.

—+

On Writ Of Certiorari To The United States

Court Of Appeals For The Fourth Circuit

—?

BRIEF ON BEHALF OF RESPONDENT

STATEMENT OF THE CASE

On March 18, 1982, after a four-day trial, a jury in the

Circuit Court of Buchanan County, Virginia, convicted the

petitioner, Roger Keith Coleman, of the rape and capita)

murder of his sister-in-law, Wanda McCoy.! For the rape

' Coieman killed his victim by inflicting a “slash wound”

to her throat which severed the right carotid artery, jugular

vein, and larynx. There were two stab wounds to the victim’s

chest, one of which penetrated the heart and lung but was

inflicted after the victim's death. The other penetrated the

victim’s liver and was inflicted after death or close to the time

of death. Coleman has a blood type possessed by only ten

(Continued on following page)

conviction, the jury fixed Coleman’s punishment at life

imprisonment. The next day, after a separate hearing on

the issue of punishment for the capital murder convic-

tion, the jury fixed a sentence of death.2 On April 23,

1982, the trial court imposed the death penalty in accor-

dance with the jury’s verdict. The capital murder convic-

tion and death sentence were affirmed by the Supreme

Court of Virginia on September 9, 1983. Coleman v. Com-

monwealth, 226 Va. 31, 307 S.E.2d 864 (1983). This Court

denied a petition for a writ of certiorari on March 19,

1984. Coleman v. Virginia, 465 U.S. 1109 (1984).

Represented by attorneys of his own choosing, Cole-

man then filed a petition for a writ of habeas corpus in

Buchanan County Circuit Court on April 26, 1984. On

November 12-13, 1985, an evidentiary hearing was con-

ducted. In a letter opinion dated June 23, 1986, the circuit

court rejected Coleman’s claims \j.A. 3-15), and in an

order signed on September 4, 1986, entered final judg-

ment. (J.A. 16-19). Petitioner’s counsel received a copy of

the dismissai order no later than September 11, 1986. (See

Cert.Ptn. No. 87-5448 >* 4; copies lodged with this Court).

Coleman’s three attorneys filed a notice of appeal in

the circuit court on October 7, 1986. (J.A. 28-33). Then, on

(Continued from previous page)

percent of the population. Sperm found in the victim’s vagina

emanated from someone with the samc blood type as Cole-

man’s, two hairs found on the victim’s pubic area matched

Coleman’s pubic hair, and blood matching the victim’s type

was found on Coleman’s blue jeans. Coleman also admitted to

a fellow j2:! inmate that he had raped the victim.

2 Coleman had committed an attempted rape in 1977 and

had been sentenced to three years in the penitentiary for that

offense. In recommending the death sentence, the jury found

that Coleman presented a tuture danger to society and that his

offense was “outrageously or wantonly vile” in that it involved

torture, depravity of mind, and aggravated battery to the vic-

tim. See Va. Code § 19.2-264.2.

October 25, 1986, they filed a motion requesting the cir-

cuit court to “correct” the date of final judgment from

September 4, 1986 to September 9, 1986. In an order dated

November 10, 1986, however, the circuit court denied the

motion, stating that “final judgment in this case was

entered on September 4, 1986 and . . . the records of this

Court correctly reflect that fact at the present time.” (J.A.

20).

On December 3, 1986, Coleman’s attorneys filed a

petition for appeal in the Virginia Supreme Court. On

December 9, 1986, the Commonwealth filed a motion to

dismiss Coleman’s appeal based upon the fact that his

notice of appeal had been untimely filed. (J.A. 22-24). By

an order dated May 19, 1987, the Virginia Supreme Court

expressly granted the motion and dismissed Coleman’s

petition for appeal. (J.A. 25-26). On June 2, 1987, Coleman

filed a petition for rehearing which was denied on June

12, 1987. J.A. 27).

Coleman filed a petition for a writ of certiorari in this

Court on September 10, 1987. The petition was denied on

October 19, 1987. Coleman v. Bass, 484 U.S. 918 (1987).

Coleman then filed his federal habeas corpus petition

in the United States District Court for the Western Dis-

trict of Virginia on April 22, 1988. After extensive brief-

ing, the district court heard oral argument on September

19, 1988. In a sixteen-page opinion dated December 6,

1988, Judge Glen M. Williams concluded that most of

Coleman's claims were procedurally barred by his default

during the state habeas appeal. (J.A. 36-39). Nevertheless,

the district court also reviewed the merits of those claims,

as well as the others which Coleman had raised in his

petition, and concluded that Coleman was not entitled to

federal habeas relief. (J.A. 39-52).

A unanimous panel of the United States Court of

Appeals for the Fourth Circuit affirmed the district

court’s decision on January 31, 1990. Coleman v. Thompson,

895 F.2d 139 (4th Cir. 1990). (J.A. 53-68). Unlike the dis-

trict court, the Fourth Circuit relied primarily upon Cole-

man’s procedural default during his state habeas appeal.

(jJ.A. 55-64). The court, however, also reviewed the merits

of petitioner’s claims which challenged the constitutional

adequacy of the penalty-stage instructions to the jury and

found those claims lacking. (J.A. 64-68). Coleman’s peti-

tion for a rehearing en banc was denied on February 27,

1990. (J.A. 69).

This Court granted certiorari on October 29, 1990. See

111 S.Ct. 340 (1990).

SUMMARY OF ARGUMENT

Harris v. Reed and its “plain statement” rule must be

applied with a reasonable measure of common sense, and

the Court of Appeals did so in this case. Nothing in

Harris undermines the indisputable fact that Coleman’s

state habeas appeal was dismissed solely because he vio-

lated a mandatory and jurisdictional rule of Virginia

appellate procedure.

When Coleman failed to file a notice of appeal within

thirty days after entry of the judgment dismissing his

state habeas petition, he thereby deprived the Supreme

Court of Virginia of the jurisdiction to determine his

constitutional claims. See Va.S.Ct. Rule 5:9(a). Harris’

“plain statement” requirement, if applicable at all, was

clearly satisfied: (1) there is no basis for concluding that

the Virginia Supreme Court’s dismissal of Coleman's

habeas appeal was premised upon federal law; (2) the

state court expressly granted the Commonwealth's

motion to dismiss which was based solely on procedural

grounds; and (3) Coleman has admitted repeatedly that

the state appellate court refused to reach the merits of his

federal claims because of his procedural default.

This Court need not decide whether the “deliberate

bypass” test still applies in the factual situation presented

in Fay v. Nota, 372 U.S. 391 (1963), because Coleman’s

default occurred during a civil collateral appeal — a fun-

damentally different situation than Fay, where the default

occurred on direct appeal from a criminal conviction.

This basic distinction most clearly manifests itself in the

twin principles that state collateral proceedings are not

constitutionally required and that, unlike a defendant on

direct appeal, a state habeas petitioner has no constitu-

tional right to the effective assistance of counsel.

Nevertheless, the “cause and prejudice” standard

established in Wainwright v. Sykes, 433 U.S. 72 (1977),

should apply to all procedural defaults, regardless of the

stage at which the default occurred or whether counsel’s

error resulted in a partial or total default. Fay’s inherently

subjective and internal “deliberate bypass” test is

woefully inadequate to safeguard the vital interests of

finality and comity which are the foundation of Sykes and

its progeny.

Ill

An alleged error by state habeas counsel can never

constitute “cause” for a procedural default. Any other

conclusion would be antithetical to the very principles

that inform the “cause and prejudice” standard, and

would release an endless stream of state and federal

litigation challenging the “effectiveness” of previous

habeas counsel’s performance.

In the absence of a constitutional right to counsel and

the corollary right to the effective assistance of counsel,

“cause” must be both objectively verifiable and external

to the petitioner. Thus, where a default results from state

habeas counsel’s late filing of a notice of appeal, “cause”

cannot be established.

Coleman must bear the burden of the default caused

by the team of lawyers he chose to represent him. If such

a burden had fallen upon one who was “actually inno-

cent,” however, the “miscarriage of justice” safety valve

would have been applicable and would have provided

relief. But where, as here, there can be no substantial

claim of “actual innocence,” there is simply no constitu-

tional justification for requiring the Commonwealth to

assume responsibility for a default over which it had no

control.

The “new rule” doctrine greatly, and beneficially,

simplifies federal habeas corpus proceedings by cutting

through the complexities of issues such as procedural

default, and by declaring federal habeas relief “off limits”

if the petitioner is asking the federal court to apply or

announce a “new rule.” The focus of the “new rule”

doctrine is exactly where it should be: on the reasonable-

ness of a state court’s rejection of federal claims at the

time a petitioner’s conviction became final.

Here, all of Coleman’s federal claims were reasonably

rejected by the state habeas judge, and the district court's

concurrence in that conclusion amply demonstrates that

none of Coleman’s proposed “new rules” can be

announced in this collateral proceeding. Thus, even if

Coleman’s procedural default were completely ignored,

federal relief would remain unavailable to him.

ARGUMENT

THE “PLAIN STATEMENT” RULE IS EITHER INAPPLI-

CABLE TO THIS CASE OR HAS BEEN FULLY SATIS-

FIED.

In Harris v. Reed, 489 U.S. 255 (1989), this Court

extended application of the “plain statement” rule of

Michigan v. Long, 463 U.S. 1032 (1983), from direct appeal

cases to federal habeas corpus. Harris, 489 U.S. at 263.

Coleman contends that the Virginia Supreme Court’s

order dismissing his state habeas appeal failed to satisfy

the “plain statement” requirement, and he asserts that the

State court might have denied his federal constitutional

claims on the merits.* There are a number of compelling

reasons, however, for rejecting this contention.

3 In his petition for certiorari, Coleman argued that

because “[nlothing in the order specified that the dismissal

(Continued on following page)

THE “PLAIN STATEMENT” RULE IS INAPPLICABLE

WHERE, AS HERE, IT CANNOT FAIRLY BE SAID

THAT THE STATE COURT RESTED ITS DECISION

PRIMARILY ON FEDERAL LAW.

While it certainly is clear that in Harris this Court

extended the applicability of Long’s “plain statement”

rule to cases on habeas review, it is equally clear that the

Court did not intend to change, or make more strict, the

rule which the Court had articulated in Long. See Harris,

489 US. at 265 (“[W]e are not persuaded that we should

depart from Long . . . simply because this is a habeas

case.”). It is, therefore, essential to focus upon exactly

how this Court stated the rule in Long and how the Harris

Court understood Long’s “plain statement” rule.

Justice O’Connor stated the Long rule for the Court in

the following manner:

(Continued from previous page)

was granted on procedural default grounds” the motion to

dismiss “might well have been granted because the [Virginia

Supreme Court] found the petition to be without substantive

merit.” (See Cert. Ptn. at 22-23). Curiously, Coleman now

argues that the state court’s dismissal order allows only two

possible interpretations, both of which conclude that the

appeal was dismissed “as untimely.” (Pet. Br. 9). And Coleman

now expressly concedes that the dismissal was not “directly on

the federal merits.” (Pet. Br. 9 n.2). While the Commonwealth

maintains that Coleman’s appeal was dismissed solely on pro-

cedural grounds, if it is undisputed that the appeal was dis-

missed “as untimely,” and if the Virginia Supreme Court

reached the merits of Coleman’s federal claims only as an

alternative basis for its ruling, Harris v. Reed was clearly satis-

fied. See 489 U.S. at 264 n.10 (“state court need not fear reach-

ing the merits of a federal claim in an alternative ruling”)

(emphasis in original).

[W]hen, as in this case, a state court decision

fairly appears to rest primarily on federal law, or to

be interwoven with the federal law, and when the

adequacy and independence of any possible

state law ground is not clear from the face of the

opinion, we will accept as the most reasonable

explanation that the state court decided the case

the way it did because it believed that federal

law required it to do so.

Long, 463 U.S. at 1040-1041 (emphasis added). See also id.

at 1044 (“[I]t fairly appears in this case that the Michigan

Supreme Court rested its decision primarily on federal

law.”); Caldwell v. Mississippi, 472 U.S. 320, 327 (1985)

(“[W]e will not assume that a state-court decision rests on

adequate and independent state grounds when the ‘state

court decision fairly appears to rest primarily on federal

er iad |

And, in Harris, this Court did not in any way depart

from this articulation of the rule:

Under Long, if “it fairly appears that the state court

rested its decision primarily on federal law,” this

Court may reach the federal question on review

unless the state court’s opinion contains a

“ “plain statement that [its] decision rests upon

adequate and independent state grounds.’ ”

Harris, 489 U.S. at 261, quoting Long, 463 U.S. at 1042

(emphasis added). It is readily apparent, therefore, that in

Long, Caldwell and Harris this Court recognized that the

condition precedent for requiring compliance with the

“plain statement” rule is that it must “fairly appear that

the state court rested its decision primarily on federal

law.” See also Pennsylvania v. Finley, 481 U.S. 551, 563

(1987) (Brennan, J., dissenting) (“There is no need for a

plain statement indicating the independence of the state

grounds since there was no federal law interwoven with

this determination.”). This understanding of the “plain

statement” rule has continued even in the aftermath of

Harris. See Illinois v. Rodriguez, 110 S.Ct. 2793, 2798 (1990);

Milkovich v. Lorain Journal Co., 110 S.Ct. 2695, 2701 n.1

(1990); Quinn v. Millsap, 109 S.Ct. 2324, 2328-2329, n.6

(1989).

In Long, Caldwell, Harris and Rodriguez, the state

courts had expressly discussed and decided the merits of

the prisoners’ federal claims. See Long, 463 U.S. at

1043-1044; Caldwell, 472 U.S. at 328; Harris, 489 U.S. at

258; Rodriguez, 110 S.Ct. at 2798. Under such circum-

stances, application of the “plain statement” rule had

some basis in logic. In Coleman’s case, however, the

Virginia Supreme Court unambiguously granted the

Commonwealth’s motion to dismiss, a motion based

solely upon Coleman’s failure to comply with Virginia’s

mandatory and jurisdictional requirement of a timely

notice of appeal. (J.A. 22-24).

The state court’s decision at issue here neither discussed

nor purported to decide Coleman’s federal claims, and there

is no reasonable basis for a conclusion that the state court’s

ruling “rested . . . primarily on federal law.”4 Thus, the

condition precedent required for invocation of the “plain

statement” rule simply does not exist in this case.

+ Coleman emphasizes the fact that the Virginia Supreme

Court’s dismissal order recited all the pleadings and briefs

which the parties had filed before the court granted the Com-

monwealth’s motion to dismiss. (J.A. 25). According to Cole-

man, the fact that the order stated, “Upon consideration

whereof, the motion to dismiss is granted ...” (J.A. 26), means

that the Virginia Supreme Court “considered” the merits of his

federal claims. (Pet. Br. 7, 18). This argument reduces the

“plain statement” rule to an absurdity. The question is whether

the Virginia Supreme Court decided the merits of Coleman’s

federal claims, not whether it merely read Coleman’s merits

brief or thought about the merits of his claims. Cf. Ake v.

Oklahoma, 470 U.S. 68, 74-75 (1985) (state ground not “indepen-

dent” where state court expressly rejected merits of federal

claim and then applied defauit rule which was totally

“depend[ent] on an antecedent ruling on federal law”).

11]

WHEN THE VIRGINIA SUPREME COURT GRANTED

THE COMMONWEALTH’S MOTION TO DISMISS

COLEMAN’S STATE HABEAS APPEAL, AND THE

MOTION WAS BASED SOLELY UPON COLEMAN’S

UNTIMELY NOTICE OF APPEAL, THE “PLAIN STATE-

MENT” RULE WAS FULLY SATISFIED.

Even if the “plain statement” rule were applicable

here, Coleman’s reliance on Harris v. Reed would still be

misplaced. The problem that this Court faced in Harris - a

state court order which both of the lower federal courts

had found to be “ambiguous” on the issue of procedural

default - simply is not present here.

As was the case in both Long, 463 U.S. at 1043-1044,

and Caldwell, 472 U.S. at 328, the state court in Harris had

expressly discussed and resolved the merits of the peti-

tioner’s federal constitutional claims. See Harris, 489 U.S.

at 258. Thus, an issue arose in all three cases as to

whether the state courts’ brief references to an adequate

and independent state ground for denying relief constitu-

ted a procedural bar to federal review.°®

Both the district court and the court of appeals in

Harris had found that the state court’s reference to pro-

cedural default was ambiguous. This fact is essential to

an understanding of this Court’s decision in Harris.

Immediately after reciting the lower courts’ findings,

this Court framed the issue as “whether a state court’s

> In Long, the reference was to the provisions of the Michi-

gan Constitution. 463 U.S. at 1037 n.3. In Caldwell, there was a

“cryptic” reference to a procedural bar concerning appellate

issues not raised in an assignment of error. 472 U.S. at 327. And

in Harris, the Illinois appellate court had “referred to the ‘well

settled’ principle of Illinois law that ‘those issues which could

have been presented [on direct appeal], but were not, are

considered waived.’ ” 489 U.S. at 258.

ambiguous invocation of a procedural default bars fed-

eral habeas review.” Harris, 489 U.S. at 259-260 (footnote

omitted). And, when later discussing the problem of

“state court opinions that are unclear” on the issue of

whether the state court has actually enforced a pro-

cedural default, the Court expressly stated that “[i]n this

case for example, both the District Court and the Court of

Appeals found the Illinois Appellate Court’s opinion

ambiguous on this point.” 489 U.S. at 262, n.8. See also id.

at 275 n.1 (Kennedy, J., dissenting) (“[t]he presence of an

ambiguity on this point is a logical antecedent to the

application of the Court’s rule.”).

Whether a state court which has expressly resolved

the merits of a petitioner’s federal claims has also rested

its decision on procedural default grounds is clearly a

question of historical fact. And, where both lower federal

courts have resolved that issue, as in Harris, by determin-

ing that the state court had not clearly enforced a pro-

cedural bar, this Court understandably accepts those

findings. See generally Anderson v. Bessemer, 470 U.S. 564,

573-576 (1985) (describing “clearly erroneous” standard).

See also Harris, 489 U.S. at 275 n.1 (Kennedy, J., dissent-

ing) (“reasonable reading of the majority’s opinion” is

that Court treated existence of ambiguity “as a question

determined ... below” which the Court was “not inclined

to revisit”). Not surprisingly, then, this Court held in

Harris that a state court opinion which is “ambiguous” on

the issue of procedural default is insufficient to bar fed-

eral review. Harris, 489 U.S. at 266. Coleman’s case, how-

ever, is nothing like Harris.

It is undisputed here that the Virginia Supreme Court

expressly granted the Commonwealth’s motion to dis-

miss (J.A. 26) and that the motion was based solely on the

fact that Coleman’s notice of appeal was untimely. (J.A.

22-24). And, unlike the situations in Long, Caldwell or

Harris, the Virginia Supreme Court never discussed or

decided the merits of Coleman’s federal claims. See

Harris, 489 U.S. at 266 n.13 (pointing out that what made

the state court’s reference to procedural default “ambig-

uous” was the fact that the court “clearly went on to

reject the federal claim on the merits”). Indeed, any con-

ceivable doubt about the clarity of the Virginia Supreme

Court's ruling evaporated when the court rejected Cole-

man’s petition for rehearing, which was an unequivocal

effort to convince the court to reconsider its default rul-

ing and reach the merits of his claims. (See Argument IC,

infra, at 18).

Neither the district court nor the Fourth Circuit

found that the Virginia Supreme Court’s actions were

ambiguous. To the contrary, the Court of Appeals found

that:

The Supreme Court [of Virginia] complied with

the “plain statement” rule that Harris made

applicable to habeas corpus proceedings. The

Virginia Supreme Court's brief order shows precisely

how the Court dealt with the petition for appeal. The

Court recites that it considered all of the papers

filed by the parties. The Court then granted the

motion to dismiss, which was based on Coleman's

failure to comply with Virginia Supreme Court Rule

5:9(a), and dismissed the appeal.

(J.A. 57, emphasis added).

This case, therefore, is the exact opposite of the situa-

tion in Harris. Here, both of the lower federal courts

found, not that the state court order was ambiguous, but

that the state court had clearly dismissed Coleman’s peti-

tion for appeal for reasons of procedural default. Under

no stretch of the imagination can these findings be

deemed “clearly erroneous.”®

of a motion to dismiss based solely on procedurai default

grounds was a clear invocation of a state’s default rules, the

lower courts’ findings would be adequately supporied by

(Continuea on following page)

Coleman contends, in effect, that the Fourth Circuit

erred in applying Harris because the face of the Virginia

Supreme Court’s order does not recite that the Common-

wealth’s motion to dismis. was based upon Coleman’s

untiinely notice of appeal. (Pet. Br. 10-11). Surely there is

nothing in Harris that requires federal courts to take such

a myopic view.

Even if Coleman had been unwilling to admit the

indisputable, a cursory review of the three-page raotion

to dismiss demonstrates that it was premised entirely

upon petitioner’s late notice of appeal. (J.A. 22-24). Thus,

the sort of time-consuming examination of the state court

record which the Court sought to avoid in Harris is sim-

ply not implicated here. See Harris, 489 U.S. at 264-265.

Nor is there any reason why either the district court

or the Court of Appeals should have been required to

ignore its intirnate familiarity with elementary principles

of Virginia law. In fact, this Court has often emphasized

the importance of deference to a construction of state law

concurred in by both lower federal courts. See, e.g., Frisby

v. Schultz, 487 U.S. 474, 482 (1988); Brockett v. Spokane

Arcades, Inz., 472 U.S. 491, 499-500 (1985).

It is true, of course, that Harris sought to relieve

federal courts from having “to undertake an extensive

analysis of state law to determine whether a procedural

bar was potentially applicable to the particular case.” See

Harris, 489 U.S. at 265. In Coleman’s case, however, no

“extensive” analysis of Virginia law is necessary.’

(Continued from previous page)

Coleman’s numerous concessions that the state court had

refused to reach the merits of his constitutional claims. (See

Argument IC, infra, at 17-19).

? This case is a good example of why, despite Harris,

federal habeas courts will be unable to avoid delving into the

‘Continued on following page)

15 .

Moreover, the procedural bar in this case was not merely

“potentially applicable;” it was mandatory and jurisdic-

tional.

Virginia Supreme Court Rule 5:9(a) is unmistakably

clear: “No appeal shall be allowed unless, within 30 days

after entry of final judgment . . . , counsel for the appel-

lant files with the clerk of the trial court a notice of

appeal. ...” This rule has long been held to be both

(Continued from previous page)

details of the states’ various procedural default rules. Even if a

state court satisfies the “plain statement” rule, federal peti-

tioners will invariably assert, as Coleman does here (Pet.Br. 16

n.9), that the state ground is not “adequate.” As Justice Ken-

nedy pointed out in his Harris dissent, determining the “ade-

quacy” of the state procedural bar already “requires [the

Court] to conduct extensive reviews of questions of state pro-

cedural law. ...” See 489 U.S. at 277 (Kennedy, J., dissenting).

Likewise, as Justice O’Connor pointed out in her concurrence,

despite Harris, federal courts must continue to review state

procedural default rules in the context of defaulted claims that

were never presented to the state courts. See 489 U.S. at 269-270

(O’Connor, J., concurring), citing Teague v. Lene, 489 U.S. 288,

298 (1989), and Engle v. Isaac, 456 U.S. 107, 125-126, n.28 (1982).

The goal of avoiding extensive reviews of the details of state

proc. dural law was understandable in Long because that case

was a direct appeal where this Court was the first and only

federal court to address such state law matters. See Long, 463

U.5. at 1039 (“[E]xamining state law is unsatisfactory becauce it

requires us to interpret siate laws with which we are generally

unfamiliar”) (emphasis added). But this same goal is both futile

and unnecessary in the context of habeas corpus cases: futile

because federal courts will ultimately be required to analyze

state procedural rules anyway; and unnecessary becéuse,

unlike this Court, the 1ower federal courts are presumed

“experts in matters of local law and procedure.” See Harris, 489

U.S. at 283 (nennedy, J., dissenting) (listing various contexts in

which this Court has justifiably relied on lower federal courts’

expertise in matters of state law).

mandatory and jurisdictional. See Vaughn v. Vaughn, 215

Va. 328, 329, 210 S.E.2d 140, 142 (1974); Mears v. Mears,

206 Va. 444, 445, 143 S.E.2d 889, 890 (1965). The 30-day

time limit cannot be extended. See Va.S.Ct.R. 5:5(a).

The Commonwealth’s motion to dismiss Coleman’s

state habeas appeal was clearly based upon these manda-

tory procedural rules. (J.A. 22-24). Both the district court

and the Fourth Circuit correctly recognized that, when

the Virginia Supreme Court expressly granted the motion

to dismiss, it was doing precisely what it was required to

do under Virginia law.® See School Bd. of Lynchburg v.

Caudill Rowlett Scott, 237 Va. 550, 556, 379 S.E.2d 319, 323

(1989) (“This Court . . . lacks jurisdiction to entertain the

appeal on its merits because no notice of appeal was

filed ... within 30 days... as required by Rule 5:9”). See

also Towler v. Commonwealth, 216 Va. 533, 535, 221 S.E.2d

119, 121 (1976) (“dismissal will continue to be the price of

failure to comply with mandatory rule provisions”).

Certainly, if Harris had been decided at the time the

state court acted on Coleman's petition, the court could

have taken this Court’s suggestion and included express

language that relief was being “denied for reason of

procedural default.” See Harris, 489 U.S at 265 n.12. But

Harris was still almost two years in the offing when the

state court acted in this case. Under these circumstances,

8 The courts below also were entitled to rely upon the

elementary principle of Virginia law that when the Virginia

Supreme Court affirms the decision of the trial court, it

“refuses” the petition for appeal. See Saunders v. Reynolds, 214

Va. 697, 204 S.E.2d 421 (1974). See also Smith v. Murray, 477 U.S.

527, 532 (1986), citing Smith v. Morris, 221 Va. cxliii (noting

disposition of state habeas appeal as “appeal refused”). Thus,

the “dismissal” of Coleman’s petition for appeal was a clear

and unmistakable indication that the state court had enforced

its default rule. See Mears, 206 Va. at 449, 143 S.E.2d at 892

(appeal “dismissed” for late notice of appeal).

reaching the merits of Coleman’s federal claims because

the state court failed to include “magic words” in its

order would further none of the interests that Harris was

intended to foster, but would do substantial harm to the

interests of finality and comity that underlie the pro-

cedural default doctrine.’ Cf. Long, 463 U.S. at 1044 n.10

(pertinent to inquire whether it is “unfair” to require a

“plain statement’ in this case”) (emphasis added).

Nothing can be gained by the type of blind, mechani-

cal application of Harris proposed by Coleman. As dem-

onstrated below, everyone in this case, inciuding Coleman,

has known from the moment the Virginia Supreme Court

dismissed his habeas appeal that the court did so for one

reason and one reason only: his untimely notice of

appeal.

COLEMAN’S NUMEROUS UNEQUIVOCAL CONCES-

SIONS THAT THE VIRGINIA SUPREME COURT

NEVER REACHED THE MERITS OF HIS CLAIMS

PRECLUDES HIM FROM ASSERTING THAT THE

“PLAIN STATEMENT” RULE WAS NOT SATISFIED.

Throughout his federal habeas corpus proceedings,

Coleman has taken the disingenuous position that the

Supreme Court of Virginia might have rejected his claims

on the merits when it dismissed his state habeas appeal.

Before he embarked on federal habeas, however, Coleman

took the opposite position both in the Virginia Supreme

Court and in this Court: that the state court had denied

% Coleman’s feigned solicitude for these interests (Pet. Br.

18-19) cannot mask the fact that the basic thrust of his argu-

ment is that this Court should assume that the Virginia

Supreme Court ignored its own mandatory and jurisdictional

rule. Reaching such an unsupported conclusion could only

frustrate the interests of finality and comity.

him due process by dismissing his case on procedural

grounds and by refusing to reach the merits of his claims.

Immediately after the Virginia Supreme Court dis-

missed his state habeas appeal, for example, Coleman

filed a petition for rehearing wherein he repeatedly asked

the court to reconsider its decision dismissing his appeal

on procedural grounds and requested the court to decide

his claims on the merits. (Va.S.Ct. Pet.Rhrg. at 1, 17, 20;

copies lodged with this Court). Coleman then asked the

Virginia Supreme Court to stay the execution of its judg-

ment while he sought a writ of certiorari in this Court to

review the “dismissal of his habeas corpus appeal without

consideration of the merits of that appeal,” and he asserted

that his state habeas appeal had been “recently dismiss-

ed .. . without any consideration of the merits.” (Va.S.Ct.

pleading dated 7-6-87 at 7{1, 3 (emphasis added); copies

lodged with this Court).

Coleman's forthrightness continued in the 1987 cer-

tiorari petition he filed in this Court. Indeed, the whole

thrust of his petition was to persuade this Court that the

Virginia Supreme Court had denied him due process by

refusing to reach the merits of his federal claims.

For instance, Coleman contended that “[u]nder the

Supreme Court of Virginia’s novel interpretation, peti-

tioner’s notice of appeal was one day late [and that] /o/n

this basis alone, the Court summarily dismissed Coleman's

petition for appeal.” (See Cert.Ptn. No. 87-5448 at 3;

emphasis added). He then asserted that the Virginia

Supreme Court had “deprived [him] of his due process

right to have that Court fairly decide the merits of his

petition for appeai” and that his case presented this

Court with an “important opportunity” to decide

whether a state court may “refuse to consider federal

constitutional claims.” (/d. at 7). He assured this Court*

that his petition presented “substantial federal constitu-

tional claims . . . that the Virginia [Supreme Court}

. . . declined to review because of a novel retroactive

interpretation of Rule 5:9” and that the state court had

“dismissed [his] petition for appeal as untimely.” (/d. at 9,

14). And then, finally and most tellingly, Coleman asked

this Court to “remand [his case] to the Supreme Court of

Virginia, directing that court to consider [his] petition for

appeal on the merits.” (Id. at 18, emphasis added).

When a petitioner has repeatedly stated -on the

record, both in this Court and elsewhere, that the state

court never reached the merits of his claims because it

dismissed his appeal for reasons of procedural default, it

would be ironic indeed for this Court to hold that the

federal courts may reach the merits of those same claims

because the “plain statement” rule was not satisfied. If

the procedural default basis of the Virginia Supreme

Court’s ruling was clear enough to Coleman that he could

premise a certiorari petition upon that court’s refusal to

decide the merits of his federal claims, then it surely was

“plain” enough to satisfy any reasonable demands of the

“plain statement” rule.

THE “CAUSE AND PREJUDICE” STANDARD,

RATHER THAN THE “DELIBERATE BYPASS” TEST,

GOVERNS COLEMAN’S DEFAULT DURING HIS

STATE HABEAS CORPUS APPEAL.

THE “DELIBERATE BYPASS” TEST MUST BE

STRICTLY CONFINED TO THE FACTS OF FAY V.

NOIA.,

This Court held in Murray v. Carrier, 477 U.S. 478

(1986), that the “cause and prejudice” standard applies

fully to the procedural default of a particular claim on

direct app: ~l. The Court, however, expressly reserved the

issue “as to whether counsel’s decision not to take an

appeal at all might require treatment” under the “deliber-

ate bypass” test set forth in Fay v. Nowa, 372 U.S. 391

(1963). See Carrier, 477 U.S. at 492. Coleman contends that

his case now requires the Court to decide that issue. This

contention, however, ignores the basic distinction

between a direct appeal, which was the context of Fay v.

Noia, and a state collateral appeal, which is the context of

the default at issue here.

When the Court reserved the “deliberate bypass”

issue in Carrier, it expressly referred to the same issue

which had been previously reserved in Wainwright v.

Sykes, 433 U.S. 72 (1977). See Carrier, 477 U.S. at 492. That

issue was whether “the Fay rule” continued to apply “to

the facts there confronting the Court.” Sykes, 433 U.S. at

88 n.12. Thus, when Carrier and Sykes are read in conjunc-

tion, it is clear that if Fay’s “deliberate bypass” test has

any remaining vitality it must be strictly confined to the

facts of that case.

As Justice Harlan said in his lengthy dissent in Fay,

that case “is one of the most disquieting that the Court

has rendered... .” 372 US. at 448 (Harlan, J., dissenting).

Justice Harlan’s grave concerns about “a decision which

finds virtually no support in more than a century of this

Court’s experience,” 1d. at 463, eventually prevailed when

Sykes and Carrier all but eliminated the “deliberate

bypass” test. See Sykes, 433 U.S. at 87-91; Carrier, 477 U.S.

at 485-492. While Fay may certainly deserve a final burial,

no such service need be conducted here because, unlike

Fay, Coleman's case doesnot involve a default on direct

appeal. °

The defendant in Fay “had allowed the time for a

direct appeal to lapse without seeking review by a state

appellate court.” 372 U.S. at 394 (emphasis added). Ti .

Fay majority was willing to recognize only “a limited

discretion” in the federal habeas courts to deny relief

because of a procedural default in state court. 372 U.S. at

438. Such circumstances were limited to those “that can

fairly be described as the deliberate by-passing of state

procedures,” 372 U.S. at 439, and in the majority’s view,

“Noia’s reason for not appealing [did not] support an

inference of deliberate by-passing of the state court sys-

tem.”19 [d.

In formulating the “deliberate bypass” test, the Fay

majority expressly relied upon “[t}he classic definition of

waiver” articulated in Johnson v. Zerbst, 304 U.S. 458

(1938). See Fay, 372 U.S. at 439. That waiver standard,

however, which requires “an in.entional relinquishment

or abandonment of a known right or privilege,” clearly

applies only to the waiver of “fundamental constitutional

rights.” Johnsen, 304 U.S. at 464. Moreover, Johnson dealt

with an accused’s waiver of his personal constitutional

right to be represented by counsel at trial. Neither Johnson

nor Fay dealt with a petitioner’s forfeiture of a non-

constitutional “right” to litigate a collateral appeal. See

Friendly, Is Innocence Irrelevant? Collateral Attack On Crim-

inal Judgments, 38 U.Chi.L.Rev. 142, 160 (1970)

(“Friendly”) (“waiver” analysis inappropriate where state

did not deprive one of something “to which he is consti-

tutionally entitled”).

While the decision whether to file the initial direct

appeal as of righi is so “fundamental” that a defendant

cannot be bound by his attorney’s decision not to appeal,

see Jones v. Barnes, 463 U.S. 745, 751 (1983), and the first

appeal as of right is so “fundamental” that a defendant

has a right to the effective assistance of counsel at that

stage, see Evitts v. Lucey, 469 U.S. 387, 396 (1985), this

Court has clearly held that state collateral proceedings are

'© As Justice Harlan observed in his dissent, after creating

the “deliberate bypass” test, the Fay majority proceeded to

ignore it. See 372 U.S. at 471 (Harlan, J., dissenting). Even

though Noia had personally elected, after consultation with

counsel, not to pursue his direct appeal, his default was

excused merely because his choice was influenced by the fact

that, if he prevailed on appeal, he might face the death penalty

upon retrial. 372 U.S. at 439-440.

not “fundamental” in any constitutional sense. See Penn-

sylvania v. Finley, 481 U.S. at 557 (“States have no obliga-

tion to provide this avenue of relief, . . . and when they

do, the fundamental fairness mandated by the Due Pro-

cess Clause does not require that the State supply a

lawyer as well.”). See also id. at 559 (petitioners on state

habeas “are in a fundamentally different position [from

defendants who are] at trial and on the first appeal as of

right”).

If a state is not constitutionally required to provide

such proceedings, and if the Constitution does not

require the right to counsel at such proceedings, then it

hardly can be said that Coleman’s right to petition the

Virginia Supreme Court for an appeal from a civil habeas

corpus judgment was a “fundamental” right that could

not be defaulted in the absence of a deliberate personal

decision not to appeal. See Finley, 481 U.S. at 556-557

(“Post conviction relief is even further removed from the

criminal trial. . . . It is not part of the criminal proceeding

itself, and it is in fact considered to be civil in nature.”).

Fay’s “deliberate bypass” test is thus, by definition, inap-

plicable to Coleman’s default that occurred on state col-

lateral appeal.

THE “CAUSE AND PREJUDICE” STANDARD

APPLIES REGARDLESS OF THE STAGE AT WHICH

THE DEFAULT OCCURRED OR THE TYPE OF ATTOR-

NEY ERROR WHICH RESULTED IN THE DEFAULT.

Even at its inception, Fay’s “deliberate bypass” test

was correctly recognized to be “wholly unsatisfactory”

because “it amounts to no limitation at all.” 372 U.S. at

470 (Harlan, J., dissenting). See also Friendly, supra, at 158

(“It is... difficult to imagine how the state could ever”

meet such a standard). Indeed, Coleman asserts that he

satisfied the “standard” merely because he had a “desire

to appeal.” (Pet. Br. 8). Thus, even if it were assumed that

the Commonwealth could not prevail unless Fay were

laid to rest, this Court should reject the “deliberate

bypass” test without hesitation.

Carrier established beyond question that the Sykes

“cause and prejudice” standard applies to an appellate

default even if the default resulted from counsel’s igno-

rance, inadvertence or mistake. 477 U.S. at 489-492. This

conclusion was dictated by the Court’s recognition that

federal review of defaulted claims exacts “considerable

costs” to the interests of finality and comity and that

those costs “do not disappear when the default stems

from counsel’s ignorance or inadvertence rather than

from a deliberate decision. ... ” Carrier, 477 U.S. at 487.

See also id. at 491 (“[T]hese costs are imposed on the state

regardless of the kind of attorney error that led to the

procedural default”).

Just as importantly, Carrier also recognized that “[a]

State’s procedural rules serve vital purposes at trial, on

appeal, and on state collateral attack.” 477 U.S. at 490

(emphasis added). Indeed, “ ‘[e]ach State’s complement

of procedural rules . . . channell[s], to the extent possible,

the resolution of various types of questions to the stage of

the judicial process at which they can be resolved most

fairly and efficiently.’ ” Carrier, 477 U.S. at 491, quoting

Reed v. Ross, 468 U.S. 1, 10 (1984). Thus, the Court rightly

concluded in Carrier the* “the standard for cause should

not vary depending on the timing of a procedural

default... .” 477 U.S. at 491. See also Smith v. Murray, 477

U.S. 527, 533 (1986) (“concerns for finality and comity are

virtually identical regardless of the timing of the defen-

dant’s failure to comply with legitimate state rules of

procedure”). Because the “cause and prejudice” standard

applies to defaults occurring on direct appeal, logic dic-

tates that a more lenient standard should not be applied

to defaults occurring during a civil collateral appeal,

which is even more attenuated from the criminal trial."

Coleman’s procedural default may have stemmed

from counsel’s ignorance, inadvertence or mistake, but

his failure to file a timely notice of appeal no less

deprived the Virginia Supreme Court of the jurisdiction

to hear and determine his constitutional claims. Federal

review of the merits of Coleman’s defaulted claims under

these circumstances would thus do at least as much

injury to the interests of finality and comity as would

have occurred if he had only defaulted a particular claim

or claims. After all, an appeal is merely the sum total of

the particular claims that an appellant chooses to raise.

The fact that a default results in all of a litigant’s claims

being dismissed, rather than some or most of his claims,

is of no import in deciding the proper standard to govern

the default.

The “deliberate bypass” test, by requiring the gov-

ernment to show a knowing and intentional personal

waiver, which even then can be ignored as it was in Fay,

_is manifestly incapable of protecting the legitimate state

interests at stake when a petitioner defaults his claims

during a state collateral appeal. That “standard” provides

11 Coleman does not dispute that the “cause and preju-

dice” standard generally applies to procedural defaults during

state collateral proceedings. (Pet.Br. 29-30). Indeed, the courts

of appeals that have considered the issue are unanimous in

that conclusion. See Arce v. Smith, 889 F.2d 1271, 1272-1274 (2d

Cir. 1989), cert. denied, 110 S.Ct. 2185 (1990); Whitley v. Bair, 802

F.2d 1487, 1500 (4th Cir. 1986), cert. denied, 480 U.S. 951 (1987);

Ewing v. McMackin, 799 F.2d 1143, 1150-1151 (6th Cir. 1986);

Morrison v. Duckworth, 898 F.2d 1298, 1300 (7th Cir. 1990);

Simmons v. Lockhart, 915 F.2d 372, 376 (8th Cir. 1999); Anselmo v.

Sumner, 882 F.2d 431, 433 (9th Cir. 1989); Pierre v. Shulsen, 802

F.2d 1282, 1283 (10th Cir. 1986); Harmon v. Barton, 894 F.2d

1268, 1274 (11th Cir. 1990).

no protection at all and could never be satisfied where

the default stems from the late filing of a notice of appeal.

Indeed, recognition of the inherent fallacy of such a

“standard” would surely encourage over-zealous habeas

corpus counsel to deliberately fail to file timely notices of

appeal, with full confidence that their illusory “default”

would deprive the state habeas appellate courts of the

opportunity to review their clients’ claims, but without

risking forfeiture of federal review. And, even where

there is no such “sandbagging,” the practical conse-

quences of an inadvertent default are precisely the same -

piecemeal review and the prospect of a retrial delayed to

a much later date. These concerns are the very ones that

informed this Court’s decision in Carrier, and they require

that the “cause and prejudice” standard, and that stan-

dard alone, govern Coleman’s default.!?

12 This conclusion is entirely consistent with the Court’s

decision in Evitts. There, the Court held that a state cannot

deprive a criminal defendant of his initial direct appeal as of

right merely because his attorney failed to perfect the appeal

under the requirements of state law. 469 U.S. at 400. But that

result had nothing to do with Fay, and indeed, Fay is not even

mentioned in Evitts. Instead, the result in Evitts was dictated

by the Court’s conclusion that, because a defendant has a right

to counsel during his first appeal as of right, he also has the

right to effective counsel. 469 U.S. at 396. Evitts, therefore, fits

neatly within the “cause and prejudice” standard. Under Car-

rier, ineffective counsel is “cause,” 477 U.S. at 488, and there-

fore the prisoner in Evitts clearly satisfied that standard. But as

Evitts itself recognizes, the right to effective counsel is totally

dependent upon a constitutional right to counsel. 469 U.S. at

496 n.7. Thus, there is certainly nothing in Evitts which would

require that the “deliberate bypass” standard be applied to a

default that occurred during state collateral proceedings where

there is no right to counsel, and consequently, no right to the

effective assistance of counsel.

Ill

AN ERROR BY COUNSEL DURING STATE COLLAT-

ERAL PROCEEDINGS CANNOT CONSTITUTE THE

“CAUSE” NECESSARY TO EXCUSE A PROCEDURAL

DEFAULT.

WHERE, AS HERE, A PETITIONER CANNOT ESTAB-

LISH “CAUSE” FOR HIS DEFAULT, THE “MISCAR-

RIAGE OF JUSTICE” EXCEPTION PROVIDES

ADEQUATE PROTECTION.

As a backdrop to the “cause” issue, it is important to

remember that, in all but the most extraordinary of cases,

prisoners who are true “victims of a fundamental miscar-

riage of justice” will be able to establish “cause.” Carrier,

477 U.S. at 495-496 (citations omitted). A petitioner’s

inability to establish “cause” is thus a very strong indica-

tor that he has not suffered a “miscarriage of justice.”

Nevertheless, the Court has held that in that

“extraordinary case, where a constitutional violation has

probably resulted in the conviction of one who is actually

innocent, a federal habeas court may grant the writ even

in the absence of a showing of cause for [a] procedural

default.” Carrier, 477 U.S. at 496. The exception “is a kind

of ‘safety valve’ for the ‘extraordinary case’ where a

substantial claim of factual innocence is precluded by an

inability to show cause.” Harris, 489 U.S. at 271 (O’Con-

nor, J., concurring).

Thus, a conclusion that “cause” for a default cannot

be established by pointing to an alleged error by state

habeas counsel would not mean that a state prisoner

would have no protection against a fundamentally unjust

conviction. No matter how badly such a prisoner, or his

counsel, abused state procedural rules, he would remain

free to bring his claims to federal court and to obtain

federal relief if he can make a showing of actual inno-

cence.

In an effort to make such a showing, Coleman has

asserted only that he “has maintained his innocence from

the outset.” (See Cert. Reply Br. at 15 n.10). He also

reminds the Court of his “steadfast insistence on his

innocence.” (Pet.Br. 3). But these bare assertions fall far

short of the mark.

Even if his default during his state habeas appeal

were overlooked, and the Court were to ignore his other

defaults at trial and on appeal (J.A. 18-19, 41, 46, 49, 51,

64), the opinions of the state habeas judge and the district

court judge demonstrate that all of Coleman's federal

claims, including all of his ineffective counsel claims, are

meritless.!3 (J.A. 3-15, 18-19, 39-52). His claims pertaining

to the constitutionality of the penalty-stage jury instruc-

tions were also rejected on the merits by the Fourth

Circuit. (J.A. 64-68). These facts demonstrate that Cole-

man cannot show the “actual prejudice” required under

the “cause and prejudice” standard. See Sykes, 433 U.S. at

84, 90-91.

The Fourth Circuit, moreover, correctly concluded

that the evidence presented at trial clearly identified Col-

eman as the person who had raped and killed his victim,

and that the “miscarriage of justice” exception therefore

was inapplicable. (J.A. 61-62). Under these circumstances,

Coleman has received all of the protection to which he is

constitutionally entitled, and there is no reasonable

eee ’

13 In addition to rejecting Coleman's ineffective counsel

claims (J.A. 42-45), the district court also rejected his claim

concerning an allegedly biased juror. As the district court

correctly concluded, the state habeas judge conducted a hear-

ing on this claim and resolved the credibi. ty issue in favor of

the Commonwealth. (J.A. 39-41). The district court also rejected

the merits of Coleman’s allegations that the prosecution with-

held exculpatory evidence. (J.A. 47-48).

probability that a constitutional violation has resulted in

the conviction or sentencing to death of an innocent

man.!4

THIS COURT’S PRIOR DECISIONS COMPEL THE

CONCLUSION THAT A DEFECTIVE PERFORMANCE

BY HABEAS COUNSEL IS NOT “CAUSE.”

1. There is no constitutional right to counsel during

state habeas corpus proceedings.

A convicted indigent defendant has a constitutional

right to counsel on his first appeal as of right. Douglas v.

California, 372 U.S. 353 (1963). This Court, however, has

consistently held that such a right extends no further

than the initial direct appeal.

More than fifteen years ago, the Court held that there

is no constitutional right to counsel for a prisoner pursu-

ing a discretionary appeal in state court or a writ of

certiorari in this Court. Ross v. Moffitt, 417 U.S. 600, 612

(1974). These twin conclusions were based upon the

Court’s recognition of the significant difference between

an accused who “needs an attorney .. . as a shield to

protect him against being ‘haled into court’ by the State

and stripped of his presumption cf innocence” and a

convicted defendant who merely wants to file a discre-

tionary appeal and use an attorney “as a sword to upset

14 This conclusion is corroborated by sophisticated genetic

testing recently conducted by Coleman's own retained expert.

Upon Coleman’s insistence ffat such testing was necessary to

prove his alleged innocence, the state trial court ordered the

Virginia State Police to submit the vaginal specimens from the

victim to Coleman’s scientific expert in California for “PCR-

DNA” analysis. Coleman’s expert reported his findings in

writing and concluded that the “primary sperm donor” had

the same genotype as Coleman’s, which occurs in only 2% of

the population. (Copies lodged with this Court).

the prior determination of guilt.” Ross, 417 U.S. at

610-611. Since Ross, there has been an unbroken line of

cases limiting the constitutional right to counsel to the

first appeal as of right.

In Wainwright v. Torna, 455 U.S. 58641982), for exam-

ple, this Court expressly reaffirmed Ross and held that a

Florida prisoner, whose petition for a writ of certiorari

had been dismissed by the Florida Supreme Court

because “the application was not filed timely,” “had no

constitutional right to counsel” at that discretionary stage

of the state’s appellate proceedings. 455 U.S. at 586-587.

In 1985, while reaffirming Douglas and holding that

the constitutional right to counsel during the first appeal

as of right included the right to effective counsel, Evitts,

469 U.S. at 396, the Court once again expressly noted that

the considerations underlying a discretionary appeal are

different. 469 U.S. at 396 n.7, citing Ross and Torna.

In 1987, the Court was confronted directly with the

issue of whether there is a constitutional right to counsel

during state collateral proceedings. After reviewing the

reasons why it had always held that there is no constitu-

tional right to counsel for a discretionary appeal, the

Court concluded that “[t]hese considerations apply with

even more force to post-conviction review” because:

States have no obligation to provide this avenue

of relief, ... and when they do, the fundamental

fairness mandated by the Due Process Clause

does not require that the State supply a lawyer

as well.

Finley, 481 U.S. at 556-557 (citation omitted).

Then, just two terms ago, the Court expressly reaf-

firmed Finley and heid that no different rule should apply

with respect to the right to counsel during state habeas

corpus proceedings in capital cases:

We think that .. . the rule of Pennsylvania v.

Finley should apply no differently in capital

cases than in noncapital cases. State collateral

proceedings are not constitutionally required as

an adjunct to the state criminal proceedings and

serve a different and more limited purpose than

either the trial or appeal. The additional safe-

guards imposed by the Eighth Amendment at

the trial stage of a capital case are, we think,

sufficient to assure the reliability of the process

by which the death penalty is imposed. We

therefore decline to read either the Eighth

Amendment or the Due Process Clause to

require yet another distinction between the

rights of capital case defendants and those in

noncapital cases.

Murray v. Giarratano, 109 S.Ct. 2765, 2770-2771 (1989)

(footnote omitted); see also Smith v. Murray, 477 U.S. at

538 (“cause and prejudice” standard equally applicable in

capital cases).

There is, therefore, no room for argument that the

constitutional right to counsel extends beyond the initial

direct appeal.'5 Coleman simply had no constitutional

right to counsel during his habeas appeal to the Virginia

Supreme Court.

2. The right to effective assistance of counsel is totally

dependent upon the existence of a constitutional

right to counsel.

While not taking issue with the substantive holdings

of Finley and Giarratano, Coleman nevertheless contends

that his state habeas counsel’s performance was “ineffec-

tive” and that the “ineffective assistance” rendered by his

attorneys should constitute “cause” for his procedural

15 Indeed, petitioner has expressly disavowed any inten-

tion of challenging Finley and Giarratano’s conclusion that there

is “no constitutional right to post-conviction counsel.” (Pet. Br.

23; see also Pet. Br. 34: “Petitioner does not seek to reargue

Giarratano.”).

default. (Pet.Br. 22-24, 34-35). This Court’s prior deci-

sions, however, establish beyond question that a constitu-

tional right to counsel is an indispensable condition

precedent to a finding of “ineffective assistance.”

In Torna, for example, this Court held that “[s]ince

respondent had no constitutional right to counsel, he

could not be deprived of the effective assistance of coun-

sel by his retained counsel’s failure to file the application

[for a writ of certiorari] timely.” 455 U.S. at 587-588

(footnote omitted). And, in Evitts, the Court cited Torna

with approval and stated expressly, “Of course, the right

to effective assistance of counsel is dependent on the

right to counsel itself.” 469 U.S. at 369 n.7.

More recently, in Finley, this Court rejected a state

prisoner’s argument that her counsel's performance dur-

ing state collateral proceedings was “ineffective” and

therefore had violated her right under Evitts to the effec-

tive assistance of counsel:

We think that Evitts provides respondent no

comfort. . . . [T]he substantive holding of Evitts

~ that the State may not cut off a right to app al

because of a lawyer’s ineffectiveness —- depends

on a constitutional right to appointed counsel that

does not exist in state habeas proceedings.

Finley, 481 U.S. at 558 (emphasis added).

A fortiori, because Coleman did not have a right to

counsel during his state habeas appeal, he had no right to

effective assistance from the attorneys he chose to repre-

sent him.

3. In the absence of a constitutional right to counsel

and a violation of the right to effective assistance,

the petitioner bears the risk of attorney error.

The only way for Coleman to prevail, then, is for this

Court to hold for the first time that an error by habeas

counsel, which under no circumstances could constitute a

violation of a constitutional right to counsel, can nev-

ertheless constitute “cause” for a procedural default.

There are a number of compelling reasons for this Court

not to effect such an extraordinary change in the law.

In Carrier, the issue was whether a criminal defen-

dant or the state should bear the risk of inadvertent

attorney error resulting in a procedural default during

direct appeal. The Court resolved that issue by conclud-

ing:

[T]he question of cause for a procedural default

does not turn on whether counsel erred or on

the kind of error counsel may have made. So

long as a defendant is represented by counsel

whose performance is not constitutionally inef-

fective under the standard established in Strick-

land v. Washington, [466 U.S. 668 (1984)], we

discern no inequity in requiring him to bear the

risk of attorney error that results in a procedural

default.

477 U.S. at 488 (emphasis added).

The essence of the Court’s ruling in Carrier is that a

habeas petitioner can establish “cause” for a procedural

default by pointing to a defective performance by counsel

if, and only if, counsel was constitutionally ineffective. For

while “[i]neffective assistance of counsel . . . is cause for a

procedural default,” 477 U.S. at 488, “[a]ttorney error

short of ineffective assistance of counsel does not consti-

tute cause... . even when [the] default occurs on appeal

rather than at trial.” Id. at 492.

There can be no doubt, then, that the state cannot be

forced to bear the risk of attorney error where the default

occurred at proceedings at which the petitioner did not

have a constitutional right to counsel or a constitutional

right to the effective assistance of counsel. Contrary to

Coleman’s assertion that “[t]he existence of a constitu-

tional right to counsel is irrelevant” to the existence of

“cause” (Pet. Br. 23), this Court made clear in Carrier that

where “the procedural default is the result of ineffective

assistance of counsel, [it is] the Sixth Amendment itself

[that] requires the responsibility for the default [to] be

imputed to the State... .” 477 U.S. at 488. See also

Kimmelman v. Morrison, 477 U.S. 365, 379 (1986). Conse-

quently, where there is no constitutional basis for imput-

ing such responsibility to the state, the risk of attorney

McCaughtry, 910 F.2d 1379, 1386 (7th Cir. 1990) (East-

erbrook, J.) (“[I]neffective assistance supplies ‘cause’ only

when the Constitution requires the state to assure ade-

quate legal assistance.”). Cf. Finley, 481 U.S. at 556 (“it is

the source of [the] right to a lawyer’s assistance, com-

bined with the nature of the proceedings, that controls

the constitutional question”).

That conclusion is particularly appropriate in this

case because Coleman cannot successfully assert even the

vaguest notion of a “due process” violation as a basis for

a finding of “cause.” Not only did he have no constitu-

tional right to counsel at the time of his procedural

default, but the error was committed by attorneys of

Coleman’s own choosing; these were not attorneys who

16 It is true that in Carrier this Court cited “the right to the

effective assistance of counsel” as “an additional safeguard

against miscarriages of justice.” See 477 U.S. at 496. But the

Court did so only after stating its confidence that true “victims

of a fundamental miscarriage of justice” will be able to estab-

lish “cause” and that those few who cannot will be able to

obtain appropriate relief if they make a showing of actual

innocence. Id. at 495-496. There is nothing in Carrier, however,

that would support a conclusion that a petitioner can establish

“cause” based upon an allegation of ineffective assistance

where no right to effective assistance exists. Cf. Pulley v. Harris,

465 U.S. 37, 50 (1984), explaining Zant v. Stephens, 462 U.S. 862

(1983) (In Zant, “[p}roportionality review was considered to be

an additional safeguard against arbitrarily imposed death sen-

tences, but we certainly did not hold that comparative review

was constitutionally required”).

in any sense were foisted upon Coleman by the Common-

wealth, but were the same attorneys whom Coleman

himself had chosen to institute his state habeas corpus

proceedings.

In Wainwright v. Torna, the default occurred because

the petitioner’s retained counsel failed to perfect a timely

discretionary appeal. 455 U.S. at 587. After rejecting

Torna’s claim that he had been denied the effective assis-

tance of counsel, the Court also held:

Respondent was not denied due process of law

by the fact that counsel deprived him of his

right to petition the Florida Supreme Court for

review. Such deprivation — even if implicating a

due process interest - was caused by his counsel,

and not by the State. Certainly, the actions of the

Florida Supreme Court in dismissing an applica-

tion for review that was not timely filed did not

deprive respondent of due process of law.

Id. at 588 n.4 (emphasis added). See also Thomas v. Arn,

474 U.S. 140, 155 (1985) (no due process violation where

federal habeas appeal waived by counsel's failure to file

objections to magistrate’s report).

Torna, then, clearly demonstrates that, while the

Court is generally unwilling to draw a distinction

between the actions of appointed and retained counsel,

see, e.g., Evitts, 469 U.S. at 395-396, such a distinction its

relevant where there is no constitutional right to counsel

at all - appointed or retained. Indeed, Evitts itself recog-

nized that “[t]he constitutional mandate [guaranteeing

the effective assistance of counsel] is addressed to the

action of the State in obtaining a criminal conviction

through a procedure that fails to meet the standards of

due process of law.” 469 U.S. at 396. The default in Evitts

occurred on direct appeal where the defendant had a

constitutional right to effective assistance, and the fact

that the error had been committed by a retained attorney

was thus constitutionally irrelevant.

In state habeas proceedings, however, a petitioner

has no constitutional right to counsel. The state, more-

Over, is not attempting to obtain a criminal conviction,

but is merely endeavoring to defend a presumptively

valid state court judgment against a petitioner’s collateral

attack. Thus, in Coleman’s case, where the error was

committed by counsel of his own choosing at a proceed-

ing where there was no constitutional right to counsel,

there can be no plausible basis for a finding of the “state

action” necessary to sustain a due process claim. Conse-

quently, there likewise can be no plausible basis for a

finding of “cause” or for imputing responsibility for Col-

eman’s default to the Commonwealth.

4. An error by habeas corpus counsel is not an “exter-

nal factor” which prevented or impeded Coleman

from complying with Virginia’s procedural rules.

Where counsel’s performance does not violate a con-

stitutionally mandated right to effective assistance, “the

existence of cause for a procedural default must ordi-

narily turn on whether the prisoner can show some objec-

tive factor external to the defense impeded counsel’s efforts

to comply with the State’s procedural rule.” Carrier, 477

U.S. at 488 (emphasis added). Coleman must thus show

that an “external factor” somehow impeded his attorneys’

efforts to file a timely notice of appeal in compliance with

Virginia Supreme Court Rule 5:9.

In this context, Coleman has pursued two lines of

attack. The first —- that the procedural bar at issue is not

an“adequate” state ground (Pet. Br. 16 n.9) - would, if

successful, render a showing of “cause” unnecessary. His

second argument, raised for the first time in this Court, is

that by generally restricting the litigation of ineffective

counsel claims to collateral proceedings where a peti-

tioner has no constitutional right to counsel, Virginia

somehow has erected an external impediment to his

assertion of those claims.'7 (Pet. Br. 37-39). Neither argu-

ment can withstand scrutiny.

a. Failure to file a timely notice of appeal is clearly

an “adequate” state ground.

The “adequacy” of Virginia’s mandatory rule con-

cerning the timely filing of a notice of appeal cannot be

seriously questioned. In fact, although the “adequacy”

issue was raised and decided in the court below (J.A.

58-59), Coleman’s petition for certiorari took no issue

with the adequacy of the state procedural bar. The issue

therefore cannot be resurrected now. See Buchanan v. Ken-

tucky, 483 U.S. 402, 404 n.1 (1987) (Court refused to reach

questions “not included as questions in the petition for

certiorari”); Rule 14.1(a) (“Only the questions set forth in

the petition, or fairly included therein, will be considered

by the Court.”). :

Like the federal courts generally, and this Court in

particular, the Virginia Supreme Court has a strong legiti-

mate interest in defining its appellate jurisdiction with

temporal certainty. Indeed, “[n]o procedural principle is

more familiar to this Court than that a constitutional right

may be forfeited in criminal as well as civil cases by the

failure to make timely assertion of the right before a

tribunal having jurisdiction to determine it.” Yakus v.

United States, 321 U.S. 414, 444 (1944).

17 The fact that ineffective counsel claims generally cannot

be raised until collateral proceedings was never asserted in the

Fourth Circuit as a basis for a finding of “cause.” (See Pet. CA4

Br. at 25-28; CA4 Reply Br. at 5-6). In the court below, Cole-

man’s assertion of “cause” was based primarily on the alleged

right to counsel which this Court has since rejected in Murray

v. Giarratano. Petitioner should not be permitted to rely on a

“cause” theory never presented to the Fourth Circuit. See Ken-

tucky v. Stincer, 482 U.S. 730, 747 n.22 (1987).

With respect to federal civil cases, both in the context

of appeals and petitions for certiorari, this Court strictly

enforces a mandatory and jurisdictional time limit. See,

e.g., Gabriel v. United States, 429 U.S. 877 (1976) (untimely

notice of appeal); Deal v. Cincinnati Board of Education, 402

U.S. 962 (1974) (untimely petition). See generally R. Stern,

E. Gressman, and S. Shapiro, Supreme Court Practice,

§§ 6.1(d) and 7.2(d) at 306, 403 (6th ed. 1986). In fact, Rule

13.3 of this Court expressly directs that “[t]he Clerk will

refuse to receive any petition for a writ of certiorari

which is jurisdictionally out of time.” The Virginia

Supreme Court, like this Court, has a substantial interest

in enforcing procedural bars such as the one at issue here.

Nor is there any merit to Coleman’s contention that

the bar was unfairly enforced under the facts of his case.

There is nothing unfair about enforcing a filing deadline

‘even when the filing is just one day late. See Monger v.

Florida, 405 U.S. 958 (1972) (state court default premised

on one-day-late notice of appeal is “adequate” to bar

federal relief). See also Torna, 455 U.S. at 588 n.4 (state

court dismissal of discretionary appeal because notice

one day late did not deny due process); Deal, 402 U.S. at

962-964 (certiorari denied where petition filed one day

late only because courier “lost all the papers”).

In Coleman’s case, the state habeas judge signed the

dismissal order on September 4, 1986. (J.A. 19-20). Cole-

man, however, had known for more than two months

since receiving the judge’s June 23, 1986, opinion letter

that the petition was going to be dismissed. (J.A. 3).

Coleman’s attorneys actually received the court’s dis-

missal order no later than September 11, 1986. (See

Cert.Ptn. No. 87-5448 at 4). Nevertheless, the notice of

appeal was not filed until October 7, 1986, thirty-three

days after judgment had been entered and at least

twenty-six days after receipt of the dismissal order.'® (J.A.

33).

As the Fourth Circuit noted (J.A. 59), it has long been

the law in Virginia that a judgment is “entered” when the

order is signed by the trial judge. See Peyton v. Ellyson,

207 Va. 423, 430-431, 150 S.E.2d 104, 110 (1966) (habeas

judgment entered when judge “signed the order”);

McDowell v. Dye, 193 Va. 390, 394, 69 S.E.2d 459, 462-463

(1952) (judgment entered not when pronounced but on

date order signed by judge). It has never been the law in

Virginia that a judgment is not “entered” until it is physi-

cally recorded in the court’s order book. See Daley v.

Commonwealth, 132 Va. 621, 622-623, 111 S.E. 111 (1922)

(time to file bill of exceptions in criminal case not

extended by fact that order not recorded in order book

until after judgment was entered).

Virginia strictly and consistently enforces its default

rules.!9 See, e.g., Whitley v. Bair, 802 F.2d 1487, 1500 (4th

18 Coleman erroneously asserts that his notice of appeal

would have been timely if he had sent it to the court by

registered or certified mail. (Pet. Br. 4, 16 n.9). The so-called

“mailbox” rule embodied in Virginia Supreme Court Rule

5:5(b) applies only to documents “required to be filed with the

clerk of this Court,” meaning the clerk of the Supreme Court of

Virginia. The notice of appeal which Coleman failed to file in a

timely manner is a document filed “with the clerk of the trial

court,” not the clerk of the Virginia Supreme Court. Va.S.Ct.

Rule 5:9(a). There is no “mailbox rule” with respect to such

documents and they must be actually received by the clerk of

the trial court before the filing deadline passes. See Mears, 206

Va. at 445-446, 143 S.E.2d at 890.

19 Coleman’s argument to the contrary is so weak that he

cannot, and does not, cite even a single case where the Virginia

Supreme Court has excused an untimely notice of appeal.

Indeed, the cases he does cite, Tharp v. Commonwealth, 211 Va. 1,

175 S.E.2d 277 (1970), and O’Brien v. Mobil Oil, 207 Va. 707, 152

(Continued on following page)

Cir. 1986), cert. denied, 480 U.S. 951 (1987); Conquest v.

Mitchell, 618 F.2d 1053, 1056 (4th Cir. 1980). This Court

has also noted this fact. See Smith, 477 U.S. at 533; Giar-

ratano, 109 S.Ct. at 2779 nn.14-15 (Stevens, J., dissenting).

The default which Virginia’s highest court has enforced

in this case is exactly the same type of default that this

Court and all federal appellate courts consistently

enforce. See, e.g., Thomas, 474 U.S. at 155 (federal habeas

appeal waived by failure to file objections); Mann v.

Lynaugh, 840 F.2d 1194 (5th Cir. 1988) (federal capital

habeas appeal dismissed where notice of appeal one day

late). See also Irwin v. Veterans Administration, 59 U.S.L.W.

4021 (1990) (civil case properly dismissed where 30-day

filing deadline violated). There is, therefore, no doubt

that the default enforced in this case is “adequate” to bar

federal review. See Dugger v. Adams, 489 U.S. 401, 410-412

n.6 (1989) (state ground “adequate” even where prisoner

showed a “few cases” where state court had ignored

default).

(Continued from previous page)

S.E.2d 278, cert. denied, 389 U.S. 825 (1967), are both cases

where the Virginia Supreme Court enforced its mandatory and

jurisdictional rules. Of course, where a habeas petitioner can

later show that he was denied his constitutional right to the

effective assistance of counsel on direct appeal, he can obtain a

delayed appeal. See, e.g., Cabiniss v. Cunningham, 206 Va. 330,

143 S.E.2d 911 (1965); Thacker v. Peyton, 206 Va. 771, 146 S.E.2d

176 (1966); and Stokes v. Peyton, 207 Va. 1, 147 S.E.2d 773 (1966).

Indeed, in O’Brien, the Virginia Supreme Court expressly cited

Cabiniss, Thacker and Stokes as examples where relief ultimately

can be afforded despite a violation of a mandatory rule of

appellate procedure. See O’Brien, 207 Va. at 714-715, 152 S.E.2d

at 284. These cases, however, have no bearing on Coleman’s

case because his default occurred on collateral review, where

he had no constitutional right to counsel.

b. Coleman’s default is unrelated to the fact that

his ineffective counsel claims were being liti-

gated on collateral review.

The reason for petitioner’s default is plain and sim-

ple: the team of attorneys he chose to represent him failed

to file a timely notice of appeal as required by unam-

biguous state law. The default had absolutely nothing to

do with the fact that ineffective counsel claims are gener-

ally litigated on collateral review.

As this Court has noted, “ ‘[eJach State’s complement

of procedural rules . . . channells], to the extent possible,

the resolution of various types of questions to the stage of the

judicial process at which they can be resolved most fairly and

efficiently.’ ” Carrier, 477 U.S. at 491, quoting Reed v. Ross,

468 U.S. at 10 (emphasis added). Like most states, Vir-

ginia recognizes that ineffective counsel claims, which

almost invariably deal with evidence not a matter of

record at trial, are “most fairly and efficiently” litigated

on collateral review where the record can be supple-

mented with trial counsel’s explanation for his or her

actions or omissions. See Walker v. Commonwealth, 224 Va.

568, 571, 299 S.E.2d 698, 699-700 (1983). See also Kimmel-

man, 477 U.S. at 378 (“an accused will often not realize

that he has a meritorious ineffectiveness claim until he

begins collateral review proceedings”). ia

But the fact that Coleman could not raise his ineffec-

tive counsel claims until state habeas proceedings where

he had no constitutional right to counsel obviously did

nothing to impede his ability to raise such claims. Not —

only did he raise such claims in his state habeas petition,

but the state habeas court afforded him a two-day eviden-

tiary hearing devoted primarily to questioning the effec-

tiveness of his trial attorneys. Coleman was represented

throughout those proceedings by a team of attorneys of

his own choosing, including members of a prestigious

Washington, D.C., law firm, and he was permitted to

cross-examine his trial attorneys extensively.

The same attorneys who represented him at the evi-

dentiary hearing also represented Coleman on state

habeas appeal. While it is true that counsel failed to file a

timely notice of appeal, counsel’s error was not, and

could not have been, related to the fact that the ineffec-

tive counsel claims were being litigated on habeas corpus

rather than on direct appeal. And Coleman’s suggestion

that the Commonwealth somehow “controlled” or

“manipulated” his ability to litigate his claims is absurd.

(Pet. Br. 38). In order to pursue his claims on habeas

appeal, all Coleman and his attorneys had to do was

follow Virginia’s clear-cut mandatory and jurisdictional

rule by filing a timely notice of appeal. The source of

their failure to do so was not in any sense “objective” or

“external,” but was instead wholly subjective and inter-

nal. Under these circumstances, Coleman cannot demon-

strate “cause” for his default

SOUND REASONS SUPPORT THE CONCLUSION

THAT AN ERROR BY HABEAS COUNSEL IS NOT

“CAUSE.”

1. Accepting Coleman’s definition of “cause” would

result in a flood of litigation concerning the effec-

tiveness of state habeas counsel.

An already overburdened judicial system certainly

does not need a stimulus for additional habeas corpus

litigation and evidentiary hearings. Acceptance of peti-

tioner’s definition of “cause,” however, would supply

just such a stimulus.

If the alleged ineffectiveness of state habeas counsel

could constitute “cause,” then both the state and federal

courts undoubtedly would be deluged with habeas peti-

tions asserting that prior state collateral proceedings

should be disregarded because of habeas counsel’s defec-

tive performance. State court petitioners will assert that

42 7

procedural bars, such as that embodied in Virginia Code

§ 8.01-654 B 2,29 should be ignored because prior habeas

counse! was ineffective. Federal petitioners will assert

that, even though a claim either was not raised or was

abandoned during state habeas proceedings, the default

should be excused because of state habeas counsel's inef-

fectiveness.

It does not require a fertile imagination to foresee the

mischief that would be spawned if such a definition of

“cause” were adopted. “The result [would be] akin to the

effect created when a mirror is held facing another mir-

ror, the image repeating itself to infinity.” Evitts, 469 U.S.

at 411 (Rehnquist, J., dissenting). The only difference

would be that, unlike mirror images which gradually

shrink as they approach infinity, the importance of each

successive layer of counsel’s performance would never

diminish despite the increasing distance from what

should be the focus of attention - the trial and direct

appeal. See Sykes, 433 U.S. at 90 (state trial is the “main

event”); Prihoda, 910 F.2d at 1387 (since Sykes, “the trial

and appeal have become the principal forum for the

decision of all constitutional questions”).

Resolving such allegations of ineffective habeas

counsel often would require an evidentiary hearing,

because just as trial and appellate counsel will not ordi-

narily be deemed “ineffective” without giving them an

opportunity to explain their acts or omissions, the same

opportunity would have to be attorded to habeas counsel.

And, given the Sixth Amendment's clear inapplicability

in assessing the performance of habeas counsel, see Finley,

it is unclear what standard a reviewing court would even

apply. Any attempt to identify the types of errors by

20 This statute provides, in pertinent part: “No writ shall

be granted on the basis of any allegation the facts of which

petitioner had knowledge at the time of filing any previous

petition.”

counsel that would constitute “cause” even though not

rising to the level of constitutionally ineffective assistance

would revive the confusion about the appropriate stan-

dards for judging counsel’s performance that this Court’s

decision in Strickland v. Washington eliminated.?! See

Strickland, 466 U.S. at 683-684.

Accepting Coleman’s definition of “cause” would

also raise immediate questions about whether a pro se

petitioner could similarly establish “cause” by asserting

his own “ineffectiveness” or that of a prison “writ

writer.” See Prihoda, 910 F.2d at 1386 (petitioner proffered

“the inadequacy of his own assistance” as “cause”).

Indeed, if a pro se petitioner could not establish “cause”

in this manner, states which provide counsel in collateral

proceedings as a matter of state law would have every

incentive to discontinue that practice: why should a state

provide more than the Constitution requires if by doing

so it opens itself up to endless litigation? See Finley, 481

U.S. at 559 (“Constitution does not put the State to the

difficult choice between providing no counsel whatsoever

lin collateral proceedings] or following the strict pro-

cedural requirements [of the Constitution]”).

This Court should not cast the lower courts and the

states adrift upon such uncharted waters, for, as demon-

strated below, the increased burden for the judicial

21 Coleman’s argument that, even though he had no con-

stitutional right to counsel during his state habeas proceed-

ings, he nevertheless is entitled to have habeas counsel's

performance assessed for purposes of “cause” under Strick-

land's constitutional standard (Pet. Br. 26-27), is not only con-

trary to Finley, but also demeans the importance of the Sixth

Amendment. Indeed, the fallacy of his argument manifests

itself in Coleman’s “best of both worlds” argument that, while

entitled to show “cause” under the Strickland standard, Car-

rier’s “exhaustion of cause” requirement does not apply to him

because he had no constitutional right to counsel. (Pet. Br. 27-28

n.20).

system would be accompanied by ever-increasing frustra-

tion of the vital interests which Sykes and Carrier were

designed to foster.??

2. Establishing habeas attorney error as “cause” would

subvert the interests of finality, comity and federal-

ism.

The federal courts’ exercise of the writ of habeas

corpus to review state court criminal judgments “entails

significant costs:” Engle v. Isaac, 456 U.S. 107, 126 (1982)

(footnote omitted). Those costs have been well articulated

by the Court. By extending “the ordeal of trial for both

society and the accused,” collateral review of a criminal

conviction “undermines the usual principles of finality of

litigation.” Id. at 127. See also Bator, Finality in Criminal

Law and Federal Habeas Corpus for State Prisoners, 76

Harv.L.Rev. 441, 450-453 (1963). “Liberal allowance of the

writ... degrades the prominence of the trial itself,” and

issuance of the writ “frequently cost[s] society the right to

punish admitted offenders.” Engle, 456 U.S. at 127.

Finally, because “[f]ederal intrusions into state criminal

trials frustrate both the State’s sovereign power to punish

offenders and their good faith attempts to honor constitu-

tional rights,” the writ of habeas corpus “imposes special

costs on our federal system.” Id. at 123.

These same costs “are particularly high” when the

federal writ is used to review claims that were defaulted

in state court. Jd. at 128. Indeed, such review “irtrudes on

22 No doubt because they realized this Court would not

knowingly ado; a rule that would create such burdens and

difficulties for the judicial system, the inmate-respondents in

Giarratano disavowed the idea that even a constitutional right to

counsel during state habeas proceedings could give rise to an

assertion of “cause” based upon an alleged ineffective perfor-

mance by counsel. (See Giarratano, No. 88-411, Resp. Br. at 43;

copies lodged with this Court).

state sovereignty to a degree matched by few exercises of

federal judicial authority.” Harris, 489 U.S. at 282 (Ken-

nedy, J., dissenting).

Sykes and its progeny were designed to minimize

these costs and to foster and protect the interests of

finality, comity and federalism. If the Court were to

accept Coleman’s definition of “cause ” those interests

would be subverted, for the states’ interest in enforcing

their procedural default rules in collateral proceedings is

just as “vital” as their corresponding interest in enforcing

such rules at trial and on direct appeal. See Carrier, 477

U.S. at 490.

It would be difficult to imagine an outcome that

could do more harm to the interests of finality, comity

and federalism than a situation where even a full round

of state and federal habeas proceedings could no longer

be reasonably looked upon as the “end” of a criminal

case. If this Court were ever to recognize habeas counsel

error as sufficient “cause” to excuse a procedural default,

the Court thereby would condemn the judicial system to

endless rounds of habeas litigation, each challenging the

“effectiveness” of the immediately preceding counsel's

performance. The costs to finality and comity - already

“particularly high” — could well reach the breaking point.

Rather than subjecting themselves to such never-end-

ing litigation, states could rationally choose to abandon

their systems of collateral review. And they would be free

to do so because such avenues of relief are not constitu-

tionally required. See Finley, 481 U.S. at 557. Indeed,

Coleman seems intent upon driving the states in that

direction when he asserts that “cause” should be less

difficult to show when a default occurs on collateral

attack because “[b]y providing for collateral review, a

state concedes that its interest in .. . finality . . . can be

outweighed... .” (Pet. Br. 30-31 n.25, emphasis added).

This Court, however, should refuse to adopt a standard of

“cause” which is so open-ended that it ultimately could

result in federal habeas corpus becoming the sole avenue

of collateral relief for some, or even all, state prisoners — a

result detrimental to the interests of everyone involved.

See Long, 463 U.S. at 1042 n.8 (emphasizing “vast” role

state courts play in adjudicating federal constitutional

claims).

THE “NEW RULE” DOCTRINE DICTATES THAT PETI-

TIONER CANNOT OBTAIN FEDERAL HABEAS

RELIEF.

Even if this Court were to completely overlook peti-

tioner’s clear default during his state habeas corpus pro-

ceedings, there is another, equally fundamental reason

why he would not be entitled to federal habeas relief: the

“new rule” doctrine.

Because this is a federal collateral proceeding, this

Court must determine whether Coleman seeks the benefit

of a “new rule.” This inquiry is mandated because “the

purpose of federal habeas corpus is to ensure that state

convictions comply with the federal law in existence at

the time the conviction became final, and not to provide a

mechanism for the continuing examination of final judg-

ments based upon later emerging legal doctrine.” Sawyer

v. Smith, 110 S.Ct. 2822, 2827 (1990). A federal habeas

court, therefore, must “validate reasonable, good-faith

interpretations of existing precedents made by state

courts.” Saffle v. Parks, 110 S.Ct. 1257, 1260 (1990).

Thé “new rule” doctrine is not restricted to cases

where a petitioner asks for retroactive application of a

case that was decided after his conviction became final.

When state courts make “reasonable, good-faith inter-

pretations of existing precedents .. . ,” subsequent rul-

ings to the contrary by a federal habeas court are “new”

and are thus prohibited. Butler v. McKellar, 110 S.Ct. 1212,

1217 (1990), citing United States v. Leon, 468 U.S. 897 (1984)

(“good faith” exception to exclusionary rule).

Determining whether a state court’s rejection of a

petitioner’s claims was “reasonable” and in “good faith”

requires a determination whether constitutional prece-

dent existing at the time the petitioner’s conviction

became final “compelled” a decision in his favor. Saffle,

110 S.Ct. at 1261. Acceptance of a petitioner’s claims

cannot be considered to have been “compelled,” however,

if they were “susceptible to debate among reasonable

minds.” Butler, 110 S.Ct. at 1217.

Coleman’s conviction and death sentence became

final when this Court denied certiorari on March 19, 1984.

Coleman v. Virginia, 465 U.S. 1109 (1984). None of the

claims raised in his federal habeas petition was in any

sense “compelled” in 1984, nor are any of his—claims

“compelled” even today.?3 Conversely, all of his claims

were and remain “susceptible to debate” among reason-

able jurists. Indeed, the best evidence of this fact is that

the state habeas judge, the district court, and to some

extent a unanimous panel of the court of appeals, all

found that Coleman’s claims were meritless. (J.A. 3-19,

39-52, 64-68). See Butler, 110 S.Ct. at 1217 (“that the out-

come .. . was susceptible to debate among reasonable

minds is evidenced further by the differing positions

taken by the judges . . . noted previously.”).

*3 The federal claims which Coleman raised in the Fourth

Circuit were as follows: a member of the jury failed to disclose

a preconceived opinion of Coleman’s guilt; Coleman’s trial

attorneys rendered ineffective assistance at both stages of trial;

the prosecutor failed to disclose exculpatory evidence; the

evidence was insufficient to support Coleman’s conviction; the

jury instructions at the penalty stage were constitutionally

inadequate; Virginia’s death penalty statute is unconstitutional

as applied to Coleman.

Coleman merely disagrees with the good faith legal

judgments reached by the state habeas judge and con-

curred in by the district court. His claims, therefore> are

clearly requests for “new rules” and as such are barred

from review unless they fall within one of two “narrow”

exceptions. Sawyer, 110 S.Ct. at 2831. Even a cursory

review of his claims demonstrates that neither exception

applies. None of his claims would “place an entire cate-

gory of primary conduct beyond the reach of the criminal

law” or “prohibit imposition of a certain type of punish-

ment for a class of defendants because of their status or

offense.” Id. Nor can it be said that acceptance of any of

his claims would alter any of the “bedrock” principles

which are “absolute prerequisites to fundamental fair-

ness.” Id. at 2831-2833. Under these circumstances, fed-

eral habeas relief cannot be granted on any of petitioner’s

claims.

CONCLUSION

The judgment of the Court of Appeals should be

affirmed.

Respectfully submitted,

Mary Sue TERRY

Attorney General of Virginia

H. Lane KNEEDLER

Chief Deputy Attorney General

STEPHEN D. ROSENTHAL

Deputy Attorney General

Jerry P. SLONAKER

Senior Assistant Attorney General

*DonaLp R. Curry

Senior Assistant Attorney General

January, 1991

*Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.