Amicus Curiae Brief — Coleman v. Thompson

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QUESTIONS PRESENTED

1. After Harris v. Reed, is it permissible for a federal court

to analyze state law and the state court record to determine

whether federal claims ai » barred by state procedural default

when the state court summarily grants a motion to dismiss

without mentioning federal law?

2. Should a federal court waive a procedural default

resulting from post-conviction counsel’s failure to file a timely

appeal when the default would only bar rehearing of claims

already heard and decided once?

3. Does the deliberate bypass standard of Fay v. Noi have

any continuing value as precedent?

(1)

TABLE OF CONTENTS

EEE 1

RUGGED. ww tte tes 2

ee Ce tc ee te ce ee es 3

EEE CCS Sc esc cseccscccccceccces 4

I

Long applies only to state decisions which fairly appear to rest

UUM COM BOGOTMIIOW . ww tt tee ee 4

A. Long as actually applied ................. 4

ESTEE 7

I]

The Harris/Long rule generally does not apply to summary

TCE Sc ce esccceeessecceces 8

A. Classifications of claims ................. 8

B. Arguably barredclaims ................. 11

Ill

Fay v. Noia has no value as precedent .............. 15

Se eee 16

B. Subsequent developments ................ 18

C. The state’s interest in finality .............. 20

Pe SS sos ce cee cece wee ec 22

ES aes cb tec ccc e eee ces 22

(iii)

iv,

TABLE OF AUTHORITIES

Cases

Adamson v. Ricketts, 865 F. 2d 1011 (1988) ........... 14

Ake v. Oklahoma, 470 U. S. 68, 84 L. Ed. 2d 53,

a I: TI oh ear ee og eee i Bg lg 15

Browder v. Director, Ill. Dept. of Corr., 434 U.S. 257,

2 OR ae BO eee |

Brown v. Allen, 344 U. S. 443, 97 L. Ed. 469,

EE irae 6 Ke ewe eS 10, 16, 19

Butler v. McKellar, 108 L.Ed.2d 347,

Ne, 6 ee a Oa. ¥en wena 22

Caldwell v. Mississippi, 472 U. S. 320, 86 L. Ed. 2d 231,

ee ns ee 6

California v. Freeman, 488 U. S. 1311, 102 L. Ed. 2d 957,

Ee ore ar Ad cr ee ae rae 6

Castille v. Peoples, 489 U. S. 346, 103 L. Ed. 2d 380,

a ee ee ee ee 9,10, 11

Cohens v. Virginia, 6 Wheat. (19 U. S.) 264,

Pe I hk ak nid oa dee ee eee ee oe ae 18

Coleman v. Commonwealth, 307 S. E. 2d 864 (1983) ...... 2

Coleman v. Thompson, 112 L. Ed. 2d 305 (1990) ........ 3

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

Coleman v. Virginia, 465 U.S. 1109, 80 L. Ed. 2d 145,

en CI ga ne ae a he ee se cae aa ae wk 2

Davis v. United States, 411 U. S. 233, 36 L. Ed. 2d 216,

Ps wnesdnaedeeenee 18, 20

Delaware v. Van Arsdall, 475 U. S. 673, 89 L. Ed. 2d 674,

a ¢ sb wen d's ea be u CEO 5, 12, 13

Douglas v. California, 372 U. S. 353, 9 L. Ed. 2d 811,

Ee eae ee 22

Engle v. Isaac, 456 U. S. 107, 71 L. Ed. 2d 783,

ag see vice aren 11

Evitts v. Lucey, 469 U. S. 387, 83 L. Ed. 2d 821,

Co re ee ee eee 22

Ex parte Watkins, 3 Pet. (28 U.S.) 193, 7 L. Ed. 650 (1830). .14

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

ED 6 wb 6s eee ce bes ew és ee 4, 15-20

Francis v. Henderson, 425 U. S. 536, 48 L. Ed. 2d 149,

SD ve biped cee ee ese tea ss 19, 21

Gideon v. Wainwright, 372 U. S. 335, 9 L. Ed. 2d 799,

PE ccc er sta e awake ees eve ces 22

Granberry v. Greer, 481 U.S. 129, 95 L. Ed. 2d 119,

SP ee ee a ee ee 9

Harris v. Reed, 489 U. S. 255, 103 L. Ed. 2d 308,

ee ee ee ee Passim

Johnson v. Zerbst, 304 U. S. 458, 82 L. Ed. 1461,

NN ee eee 19

Kentucky v. Stincer, 482 U. S. 730, 96 L. Ed. 2d 631,

bin a ed we he wale eee 0 8 5, 13

Maryland v. Garrison, 480 U. S. 79, 94 L. Ed. 2d 72,

EE, oii s cn skekatiasanbadanes 5

Michigan v. Chesternut, 486 U. S. 567, 100 L. Ed. 2d 565,

a Se eee eee ceobes 5, 6, 12

Michigan v. Long, 463 U.S. 1032, 77 L. Ed. 2d 1201,

SED «ssc sce cewen scan

Matton Steamboat Co. v. Murphy, 319 U. S. 412,

Or G. Moe. Be, GS. Ch. TERR CISGR) cw we 21

Murray v. Carrier, 477 U. S. 478, 91 L. Ed. 2d 397, ,

IE oc 3, fc oo Bo me 6 aces ols! ets 19, 20

New York v. Class, 475 U.S. 106, 89 L. Ed. 2d 81,

I ks gg og’ a' pW ie re ele é bela ee 5

New York v. P. J. Video, Inc., 475 U. S. 868, 89 L. Ed. 2d 871,

eee eee ©

People v. Chesternut, 157 Mich. Avp. 181,

oe ee eee

People v. Freeman, 46 Cal.3d 419, 250 Cal. Rptr. 598,

ae a gee 6

People v. P. J. Video, Inc., 68 N. Y. 2d 296,

I os os G6 Se 06 a oo 4 0 0 12

Presnell v. Kemp, 835 F. 2d 1567 (CA11, 1988) ......... 15

Reed v. Ross, 468 U. S. 1, 82 L. Ed: 2d 1,

104 S. Ct. 2901 (1984)... .. TS Se ee ee 19, 20

Rose v. Lundy, 455 U. S. 509, 71 L. Ed. 2d 379,

Ce ee ee 9

Schneckloth v. Bustamonte, 412 U.S. 218, 36 L. Ed. 2d 854,

I 5-6 6 64d 6's bu eb de hls Gs 9 60's 16

Smith v. Digmon, 434 U. S. 332, 54 L. Ed. 2d 582,

ee ee 9, 10

Snyder v. Massachusetts, 291 U. S. 97, 78 L. Ed. 674,

er ee ee 13

State v. Vickers, 768 P. 2d 1177 (Ariz. 1989) ....2..... 14

vii

Swain v. Alabama, 380 U. S. 202, 13 L. Ed. 2d 759,

gn eee ey Wie Giwiainle ei 11

Teague v. Lane, 489 U. S. 288, 103 L. Ed. 2d 334,

CM a rece e ee caees 11

Van Arsdall v. State, 524 A. 2d 3 (Del. 1987) .......... 12

Vasquez v. Hillery, 474 U. S. 254, 88 L. Ed. 2d 598,

ee ass 6 x «,0ck 17

Wainwright v. Sykes, 433 U. S. 72, 53 L. Ed. 2d 594,

UPS, so sss ees eee eps 18, 19, 20

Walton v. Arizona, 111 L. Ed. 2d 511, 110 S. Ct. 3047 (1990) .14

United States Statutes and Rules

Fed. Rule Age. Peoc. fa) .. 2 ccc ccc ccc cceees 21

Ped, Dea Cree, Poms. TAD) 0 ww ccc cc ccc nese 18

OE os bee wecce ee cee ueeseeeeessens 21

po eee eee ee ee ee 9

Supreme Court Rule 20.4(a) .. 2... cc cc ccc ccces 9

Treatise

R. Stern, Appellate Practice in the United States

4 A ee) ee ee 14, 22, 23

Miscellaneous

L. Carroll, Alice’s Adventures in Wonderland (1865) ..... . 19

Mayers, The Habeas Corpust Act of 1867: The Supreme Court

as Legal Historian, 33 U. Chi. L. Rev. 31 (1965) ....... 16

Vill

Oaks, Legal History in the High Court — Habeas Corpus, 64

Mich. L. Rev. 451 (1966)

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

ROGER KEITH COLEMAN,

Petitioner,

VS.

CHARLES E. THOMPSON, Warden,

MECKLENBURG CORRECTIONAL CENTER OF THE

COMMONWEALTH OF VIRGINIA,

Respondent.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)! is a non-

profit California corporation organized to participate in litiga-

tion relating to the criminal justice system as it affects the

public interest. CJLF seeks to bring the constitutional protec-

tions of the accused into balance with the rights of victims and

of society to rapid, efficient, and reliable determination of guilt

and swift execution of punishment.

The present case involves the extended relitigation of the

legality of a proceeding conducted many years ago, involving

no substantial question of whether respondent is actually

guilty. Such unnecessary relitigation is contrary to the rights of

victims and society which CJLF was formed to advance.

1. Both parties have consented in writing to the filing of this brief.

2

SUMMARY OF FACTS AND CASE

According to the prosecution’s case at trial, Roger Cole-

man raped and murdered Wanda McCoy, who was then 19,

almost ten years ago. The jury found him guilty of rape and of

willful, deliberate, and premeditated killing during the com-

mission of the rape: capital murder under Virginia law. Cole-

man v. Commonwealth, 307 S. E. 2d 864, 865 (1983).

Evidence of guilt included matches of Coleman’s pubic hair

with hairs found on Wanda’s body, Coleman’s blood type with

semen found in her body, and Wanda’s blood type with a blood

stain on Coleman’s pants. /d., at 867-868. The Virginia Su-

preme Court affirmed unanimously, id., at 877, and this Court

denied certiorari, Coleman v. Virginia, 465 U. S. 1109 (1989).

Coleman filed a state habeas petition in the state trial

court, and it was heard by a judge other than the trial judge.”

The state court held an evidentiary hearing. The court made

factual findings indicating that (1) Coleman’s evidence that a

juror was biased was less credible than the state’s evidence on

the point, J. A. 4-5; (2) trial counsel conducted an adequate

investigation, J. A. 16-17; and (3) the lack of mitigating cir-

cumstances in the penalty phase was due to Coleman’s own

actions, J. A. 8, 17.

Coleman’s attorneys filed a notice of appeal a day late.

They claim to have believed that time runs from the day the

clerk records the order rather ihan the day the judge signs it.

J. A. 29, 32.

The state filed a motion to dismiss the appeal as untimely,

relying solely on state iaw. J. A. 22-24. While the motion was

pending, the parties filed briefs on the merits. The Virginia

Supreme Court issued an order reciting the filing of the var-

ious papers and concluding with this statement. “Upon con-

2. ‘The trial judge was Judge Persin, 307 S. F. 2d, at 864; the habeas judge

was Judge Phillips, J. A. 15.

sideration whereof, the motion to dismiss is granted and the

petition for appeal is dismissed.” J. A. 25-26.

Coleman then filed a federal habeas petition. The district

court found that the claims raised for the first time on state

habeas were procedurally barred. J. A. 39. However, the

court went to rule on the merits as an alternative holding. In

denying a further evidentiary hearing, the federal court found

that “Coleman was represented by counsel [in the staie pro-

ceeding], was given a fair opportunity to present any evidence

that he wanted to and the court proceeded to rule on all mat-

ters that were presented to it.” J. A. 40. The court proceeded

to find “on the merits that tlere was no denial of any constitu-

tional rights of Coleman in his trial . . . ” and denied relief.

J. A. 51-52.

The Fourth Circuit affirmed, upholding the finding of

procedural default. Coleman v. Thompson, 895 F. 2d 139, 144

(1990). The court noted that the Virginia rule regarding time

to appeal was clear. /d., at 143.

This Court granted certiorari limited to questions 2, ?, and

4 in the petition, Coleman v. Thompson, 112 L. Ed. 2d 305

(1990), which are the questions related to the procedural

default issue.

SUMMARY OF ARGUMENT

Hams v. Reed, 489 U. S. 255 (1989) did nothing more than

apply Michigan v. Long, 463 U. S. 1032 (1983) to habeas cor-

pus. The Long rule should be applied on habeas as it has actu-

ally been applied on direct review.

Under Long, a presumpiion that the state decision does not

rest on independent state grounds arises only when the deci-

sion fairly appears to rest primarily on federal law. Only then

is a plain statement to the contrary needed to rebut the pre-

sumption.

Generally speaking, summary denials without opinion do

not fairly appear to rest primarily on federal law. The

Long/Harris rule is inapplicable to such decisions. It is both

necessary and proper in such cases to examine the pleadings

and state law to determine if the judgment rests on independ-

ent state grounds.

Fay v. Noia, 372 U.S. +91 (1963) has no value as precedent.

It was based on a distortion of history; the rule it announced

was dictum; it has been completely supplanted by subsequent

cases. Nota should be formally and completely overruled.

Notwithstanding his protests, Coleman has not been denied

“any_hearing of [his] constitutional claims.” Cf. Pet. Cert.

question 3. He received a full and fair hearing in the state

habeas court. Ineffective assistance on habeas corpus should

not be considered “cause” for the reasons stated by the Attor-

ney General.

ARGUMENT

I. Long applies only to state decisions which fairly ap-

pear to rest piimarily on federal law.

A. Long as Actually Applied.

The holding of Haris v. Reed, 489 U.S. 255 (1989) is sim-

ply nat the rule of Michigen v. Long, 463 U.S. 1032 (1983,

applies to habeas corpus. Harris, at 263. While the Long rule

is referred to as a “plain statement” rule, see id., at 261, that

expression is merely shorthand for the holding of Long and its

progeny. The phrase should not be lifted out of context and

applied mechanically; the Long rule should be applied on

habeas corpus in the same way that it has actually been applied

on direct review.

The Long rule is a form of presumption. See Long, 463

U.S., at 1042, n.8. “[W]e merely assume that there are no

such grounds when it is not clear from the opinion itself that

the state court relied upon an adequate and independent state

ground and when it fairly appears that the state court rested its

decision primarily on federal law.” Jd., at 1042 (emphasis

added). This is a two-part, conjunctive test. The lack of a

plain statement does not raise the presumption unless the

second part is also satisfied.

Haris cited six post-Long cases, 489 U. S., at 261, n. 7, none

of which is based solely on the absence of a “plain statement”

from the state court opinion. In New York v. Class, 475 U.S.

106, 109 (1986), the Court first noted that state and federal

cases were used by the state court, “generally citing both for

the same proposition.” Only after this pattern of parallel cita-

tions indicated that the decision was primarily based on federal

law did the absence of the “plain statement” become signifi-

cant. See id., at 109-110.

The Class Court did not limit its discussion to the face of

the opinion, contrary to what Coleman claims the Long rule

requires. See Pet. Brief 14-15. In interpreting the state opin-

ion, the Court referred to the state rule against discussing

constitutional grounds when statutory grounds resolve the

case, citing state case law for that proposition. Class, supra,

475 U.S., at 110.

In Delaware v. Van Arsdall, 475 U. S. 673, 678, n. 3 (1986);

New York v. P. J. Video, Inc., 475 U. S. 868, 872, n. 4 (1986);

Maryland'v. Garrison, 480 U. S. 79, 83 (1987); and Kentucky v.

Stincer, 482 U. S. 730, 735-736, n. 7 (1987), this Court specifi-

cally noted that the state court had expressly relied on federal

authority in reaching its decision. Only then was the absence

of a plain statement of independent state grounds dispositive.

Michigan v. Chesternut, 486 U. S. 567 (1988) demonstrates

that there is no “four corners” limitation in the Long rule. Cf.

Pet. Brief 18, n. 11. The state court had rested its decision on

two state cases. See People v. Chesternut, 157 Mich. App. 181,

403 N. W. 2d 74, 75-76 (1986). That reliance might initially

indicate that the decision did not rest primarily on federal law.

However, the Chesternut Court went beyond the face of the

6

state court opinion to review the authorities cited and deter-

mined that those precedents were based on federal law and

not independent state grounds. 486 U. S., at 571 and n. 3.

Most of the opinions of this Court applying Long have been

cases where independent state grounds were not found. Deci-

sions which do rest on independent state grounds would gen-

erally result in a denial of certiorari and hence no opinion.

One exception is California v. Freeman, 488 U.S. 1311 (1989),

an opinion by Justice O’Connox as Circuit Justice denying a

stay of the California Supreme Court’s decision in People v.

Freeman, 46 Cal. 3d 419, 758 P.2d 1128 (1988).

Freeman invoived the prosecution of a film producer for

pandering, on the theory that paying actors to perform sexual

acts was prostitution. The state court opinion was divided into

two main parts. The part titled “First Amendment Considera-

tions” had given the statute a narrow construction to avoid

federal constitutional problems, but the part titled “The Statu-

tory Language” had only discussed the words of the statute

and their prior construction. 488 U. S., at 1314; see 46 Cal. 3d,

at 423-425. Nowhere in the state court opinion is there a spe-

cific, self-conscious statement that the two reasons for constru-

ing the statute narrowly are independent of each other. That

conclusion is inferred from the structure of the opinion. 488

U.S., at 1314.

Caldwell v. Mississippi, 472 U. S. 320 (1985) was relied on

heavily by the Harris Court. See 489 U. S., at 261, 263-265.

The Caldwell Court also went behind the face of the state

court opinion, examining the state procedural bar cases cited

in the state court opinion to determine whether the state court

had made the requisite statement. 472 U. S., at 327-328. The

Caldwell Court also emphasized that “the Mississippi court

discussed the challenge . . . at some length, evaluating it as a

matter of both federal and state law before rejecting it as

unmeritorious.” /d., at 328.

In short, Long’s references to a “plain statement” require-

ment and the “face of the opinion” come into play only after it

is determined that the decision fairly appears to rest primarily

on federal law. Sources outside the opinion may properly be

considered in making that threshold determination.

B. The Harris Decision.

Bearing in mind the Long rule as it has actually been ap-

plied, we return to the decision in Harms v. Reed, 489 U. S. 255

(1989). Harris itself initially summarized the Long rule this

way:

“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.’ ” Jd., at 261 (quoting Long, supra, 463

U. S., at 1042) (footnote omitted, emphasis added).

Throughout the opinion, the Court repeatedly emphasizes

that it is doing nothing more than applying the Long rule.

“Thus, we are not persuaded that we should depart from Long

and Caldwell simply because this is a habeas case.” Harris, 489

U. S., at 265. At one point, however, there is a critical slip.

Harris unequivocally announces its intent to adopt the Long

rule without change and in the same breath misstates the rule:

“Caldwell thus indicates that the problem of ambigu-

ous state-court references to state law, which led to the

adoption of the Long ‘plain statement’ rule, is common

to both direct and habeas review. Faced with a com-

mon problem, we adopt a common solution: a proce-

dural default does not bar consideration of a federal

claim on either direct or habeas review unless the last

state court rendering a judgment in the case * “clearly

and expressly” ’ states that its judgment rests on a state

procedural bar.” /d., at 263.

The capsule statement which follows the colon in this pas-

sage is not an accurate statement of the Long rule as it has

actually been applied by this Court. It omits the critical pre-

requisite that the state decision first fairly appear to rest pri-

8

marily on federal law. The omission appears to be inadvertent,

and the rule is accurately stated elsewhere in the opinion. See

id., at 261, quoted supra.

When the Harris Court turns to applying the Long rule to

the case, it notes once again the importance of the state court

ruling on the merits of the federal question. The state court’s

only mention of procedural default had been a statement that

the issues could have been raised on appeal and a reference to

the state procedural default rule. /d., at 258, 266. Harms states

that this passing reference might arguably have sufficed “had

the state court never reached the federal claim.” Jd., at 266, n.

13. It was because “the state court clearly went on to address

the merits,” ibid. (emphasis added), that the Long presumption

came into operation. “It is precisely with regard to such an

ambiguous reference to state law in the context of clear reliance

on federal law that Long permits federal review of the federal

issue.” /bid. (emphasis added).

The present case comes to this Court in precisely the oppo-

site context. The clear reliance on federal law which produced

the assumption of jurisdiction in Long, and in every case which

has found jurisdiction under Long, is completely absent here.

By its very nature, a summary order denying relief without

discussion or citation will never, on its face, create a fair ap-

pearance of resting primarily on federal law. That being the

case, does the Harns/Long rule apply to summary dispositions

at all?

II. The Harris/Long rule generally does not apply

to summary dispos.tions.

A. Classification of Claims.

The question of whether a claim is procedurally defaulted is

often intertwined with the question of whcther it has been

exhausted. See Harris v. Reed, 489 U. S. 255, 269 (1989)

(O’Connor, J., concurring). The Harris presumption rule is

thus one facet of the larger question of how to classify a claim.

9

Claims presented on federal habeas corpus can be classified

into five categories depending on their procedural history in

the state courts: (1) unexhausted claims; (2) procedurally

barred claims; (3) claims rejected on the merits by the state

courts; (4) claims fairly presented to but ignored by the state

courts; and (5) claims for which there is not and never has

been effective state corrective process.

Unexhausted claims may not be considered on federal

habeas at all if the state objects. 28 U.S. C. § 2254(b); cf.

Granberry v. Greer, 481 U. S. 129, 134-135 (1987) (discretion-

ary if state omits objection). Even a single unexhausted claim

requires dismissal of the entire petition. Rose v. Lundy, 455

U. S. 508, 522 (1982). The exhaustion rule does not apply,

however, in the “absence of available State corrective process

or the existence of circumstances rendering such process inef-

fective ....” 28 U.S.C. § 2254(b). Hence claims in the fifth

category above may be considered.

The exhaustion requirement is met if a claim is fairly pre-

sented to the state courts but ignored by them. When the

State court decision does not mention the claim it is both nec-

essary and proper to go behind the opinion and examine the

pleadings to determine whether the claim was presepted and

on what grounds it was opposed. Sce Castille v. Peoples, 489

U. S. 346, 350-351 (1989); Smith v. Digmon, 434 U. S. 332, 333

(1978) (per curiam). A determination that the claim has been

exhausted is a prerequisite to the application of the Harris

rule. See Harris v. Reed, 489 U.S. 255, 263, n. 9 (1989).

Where the decision in question is an unexplained summary

denial, therefore, it will always be necessary to examine the

pleadings in order to classify the claim.

When a federal question is presented to a court in a peti-

tion other than a direct appeal as of right, there are several

reasons why that petition might be denied. The question

might be one which should not be normally presented in an

original proceeding in an appellate court, even though that

court technically has jurisdiction. See, e.g., Supreme Court

Rule 20.4(a) (habeas corpus). Summary denial in such cir-

10

cumstances is not a decision on the merits.> The petition may

be a petition for discretionary review which may be denied

even if the decision below is incorrect. See Brown v. Allen, 344

U. S. 443, 491 (1953); Castille v. Peoples, supra, 489 U. S., at

351. Such denials express no view on the merits. Brown, su-

pra, 344 U.S., at 492. If the denial is for either of these rea-

sons, the claim may be unexhausted if there is another state

court which will hear the claim on the merits. See Peoples,

supra, 489 U. S., at 351-352.

If the petition is neither inappropriate nor discretionary, a

decision on a fairly presented federal question will be based

either on a procedural bar or on the merits.* Can it be said

that a summary denial without discussion or citation fairly

appears to rest primarily on federal law? That is the predicate

fact which brings the Harris/Long presumption into force.

Harris, supra, 489 U.S., at 261. The answer lies in the plead-

ings.

The federal habeas court presented with state court orders

or opinions not mentioning the federal question must first

examine the pleadings to determine exhaustion under Smith v.

Digmon, supra. If in these pleadings the state has opposed the

claim solely on the merits, then it may be said that the state

court decision fairly appears to rest on federal law. While the

state court might search out a procedural default on its own

and rule on that basis without briefing or argument, such ac-

tion is unlikely. When a party makes only one argument, “the

most reasonable explanation,” Long, supra, 463 U. S., at 1041,

for an unexplained ruling in that party’s favor is acceptance of

that argument. By the same reasoning, the grant of a motion

to dismiss based solely on procedural bar is most reasonably

explained as resting on the procedural bar.

3. This point is discussed at length in our brief in Yist v. Nunnemaker, No.

90-68.

4. An opinion ignoring the federal question is effectively the same as denial

on the merits. See Smith v. Digmon, supra.

11

B. Arguably Barred Claims.

Most advocates, of course, will defend their judgments on

both substantive and procedural grounds when both are avail-

able. When substantial arguments on both the merits and an

adequate and independent state procedural bar have been

presented, a summary denial does not indicate a p, eference

for either. The decision in such a case does not fairly appear

to rest primarily on federal law. The predicate for the

Harris/Long presumption is missing.

What should a federal habeas court do when the Harris rule

does not apply? The answer lies not in Harris, but in the two

other habeas cases decided the same day. In Teague v. Lane,

489 U. S. 288 (1989),° petitioner raised a claim under Swain v.

Alabama, 380 U. S. 202 (1965) for the first time on federal

habeas corpus. Teague, at 297. Under Illinois law, failure to

raise a Claim at trial or on appeal forfeits the claim, subject to a

“fundamental fairness” exception. Ibid. The Teague Court

resolved the issue by examining Illinois law and deciding for

itself that the exception would not apply. /d., at 297-298.

“The rule announced in Hams v. Reed . . . is simply inapplica-

ble in a case such as this one, where the claim was never pre-

sented to the state courts.” Jd., at 299.

Castille v. Peoples, 489 U. S. 346 (1989) goes a step further.

In that case the federal question had been presented to a state

court, but only in a petition for discretionary review. I/d., at

347. This petition alone was insufficient for exhaustion, id., at

351, but further inquiry was warranted.

“The requisite exhaustion may nonetheless exist, of

course, if it is clear that respondent’s claims are now

procedurally barred under Pennsylvania law. See, e.g.,

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

5. Part II] of Teague is a majority opinion. See id., at 316 (White, J.,

concurring in part).

12

Teague v. Lane, ante, at 297-298. We leave that ques-

tion for the Court of Appeals.” Jd., at 351-352.

Thus the Teague approach to procedural bar, ie., deciding

the issue without the use of Harris-type presumption, is not

limited to cases where the claim was never presented to the

state courts. It also applies to a case where the claim was

summarily denied on a discretionary petition, probably for

reasons other than the merits.

The present case does not fall squarely within the ambit of

either Harris on the one hand or Teague and Peoples on the

other. The rationale of one or the other must be extended to

cover this situation. Amicus submits that the Long rule has

already been stretched to the limit in Harris and that the

present case should be governed by Teague.

In part II-C of the opinion, the Harris Court discusses and

dismisses the asserted reasons why the Long rule should not

apply to habeas corpus. However, there are some important

differences between direct review and habeas corpus which

are not mentioned in this section. First, when this Court re-

verses on a federal question on direct appeal and remands, the

case merely goes back to the state courts with the federal error

corrected. The state courts can and frequently do reassert

state grounds at that point and reinstate the earlier result.

See, e.g., People v. P. J. Video, Inc., 68 N. Y. 2d 296, 501 N. E.

2d 556 (1986) on remand from New York v. P. J. Video, 475

U. S. 868 (1986); Van Arsdall v. State, 524 A. 2d 3 (Del. 1987)

on remand from Delaware v. Van Arsdall, 475 U. S. 673 (1986).

The interference with state courts is far greater on habeas

corpus. The state court gets no second chance to clarify the

basis for its ruling.

Second, the limitation on this Court’s jurisdiction avoided

by the Long rule is absolute. If ambiguity precludes jurisdic-

tion, a grave injustice committed by a court which erroneously

believes itself to be bound by federal precedent, see, e.g., Peo-

ple v. Chesternut, 157 Mich. App. 181, 403 N. W. 2d 74, 76

(1986), reversed Michigan v. Chesternut, 486 U. S. 567 (1988),

may go uncorrected. The procedural default bar to habeas

13

review, in contrast, has the substantial exception of cause and

prejudice, which will redress most cases of unjust results,

backed up by the “ ‘safety valve’ for the ‘extraordinary case’

where a substantial claim of factual innocence is precluded t~

an inability to show cause.” Harris, supra, 489 U. S., at 271

(O’Connor, J., concurring). This built-in exception makes the

Long rule less necessary on habeas than it is on direct review.°

Third, Long was concerned with this Court’s limited ability

to interpret the laws of all fifty states. 463 U. S., at 1039.

Federal district courts do not have that problem. See Harris,

supra, 489 U. S., at 283 (Kennedy, J., dissenting). Further-

more, the lower federal courts must necessarily be familiar

with state procedural default law in order to apply the exhaus-

tion doctrine, see Peoples, supra, 489 U. S., at 351, and to de-

iermine procedural default of claims never presented to a state

court. Harris, at 269-270 (O’Connor, J., concurring).

Finally, there was a consideration in favor of review present

in Long and present to a lesser degree in Harris, but which is

not present at all in this case. The Long Court was concerned

that ambiguous state court opinions addressing federal ques-

tions would create a body of federal case law which was insu-

lated from this Court’s review. 463 U. S., at 1040 and 1042-

1043, n. 8. The need for uniformity could be met only by a

decision by this Court.

This consideration has less weight on habeas corpus, even

where there is a full, published state opinion. A lower federal

court decision does not create uniformity because it is not stare

6. Justice Stevens’ diametrically opposed view appears to be based on a

belief that reversal of convictions is never an injustice, but merely a state

“overprotecting” its citizens. See Harris, supra, 489 U. S., at 267 (con-

currence); Van Arsdall, supra, 475 U. S., at 695-697 (dissent). It is un-

likely that the child victims in Kentucky v. Stincer, 482 U.S. 730 (1987)

felt “overprotected” by their state court. See also Smyder v. Massachu-

setts, 291 U.S. 97, 122 (1934) (justice due also to the accuser).

14

decisis in state courts.’ Nonetheless, federal habeas :eview

may prompt states to reconsider and overrule erroneous deci-

sions.

This problem is completely absent, however, in the case of

summary denials which may be based on procedural default.

Summary orders such as the one in the present case will gen-

erally not be reported at all, see generally R. Stern, Appellate

Practice in the United States 480-482 (2nd ed. 1989) (criteria

for publication), and even where they are they will have little

or no weight as precedent. In California, for example, simple

denials are printed only in the court minutes in the advance

sheets and are not preserved in the permanent official reports.

The main impetus behind Harris seems to be a desire to

simplify habeas corpus litigation. Habeas corpus is indeed

complex, and simplicity is indeed a virtue, but simplicity does

not override all other values. The ultimate simplicity would be

to return to the rule of Ex parte Watkins, 3 Pet. (28 U. S.) 193,

203 (1830) that conviction by a court of unquestioned jurisdic-

tion cannot be collaterally attacked, period. No one is suggest-

ing that.

Whether simplicity justifies a presumption in summary

denial cases is an open question. The Harris Court did com-

ment on summary dispositions in footnote 12. However, this

comment was merely in response to a statement in the dissent.

The issue was not actually presented in the case before the

Court. Footnote 12 is dictum, not a holding of the case.

It is one thing to presume the absence of independent state

grounds “in the context of clear reliance on federal law.” Har-

ris, supra, 489 U. S., at 266, n. 13 (emphasis added). It is quite

7. In State v. Vickers, 768 P. 2d 1177, 1188, n. 2 (Ariz. 1989), for example,

the Arizona Supreme Couri refused to accept the Ninth Circuit’s deci-

sion in Adamson v. Ricketts, 865 F. 2d 1011 (1988) that jury sentencing

was constitutionally required in capital cases. The state court was right;

the federal court was wrong. Walton v. Arizona, 110 S. Ct. 3047, 3054-

3055, 111 L. Ed. 2d 511, 524-525 (19990).

15

another to insist that state courts begin inserting explanations

into previously unexplained summary denials, particularly

those of the state’s highest court. For the reasons discussed

more fully in the Brief Amicus Curiae of the Criminal Justice

Legal Foundation in Yist v. Nunnemaker, No. 90-68, the intru-

sion into the inner workings of state supreme courts would be

substantial.

The correct rule, amicus submits, is this. The Harris/Long

presumption, by definition, applies only “in the context of

clear reliance [by the state court] on federal law.” A summary

denial constitutes such clear reliance only when the petition is

opposed by the state solely on the merits. If a motion is made

to dismiss solely on the basis of a state procedural rule and if

there is no exception to the rule intertwined with federal law,

cf. Ake v. Oklahoma, 470 U. S. 68, 75 (1985), a grant of the

motion conclusively establishes a procedural default. In all

other cases, there is no presumption either for or against inde-

pendent state grounds, and the federal habeas court should

address the procedural default in the same manner which this

Court addressed it in Teague.*

III. Fay v. Noia has no value as precedent.

Coleman asks this Court to breathe new life into Fay v.

Noia, 372 U.S. 391 (1963). He cites Presnell v. Kemp, 835 F.

2d 1567, 1577 (CA11, 1988) for the proposition that Noia is

not “a dead letter.” Pet. Brief 40, n. 32. Amicus submits that

just the opposite is true. Noia has been dead for years; it is

high time it was buried.

There are three reasons for not following Noia as prece-

dent: the decision itself, the erosion of its precedential value

by later cases, and the failure of its rule to adequately respect

the state’s interest in finality.

8. This statement of the rule assumes no earlier state opinions on the issue.

That question is addressed in Nunnemaker.

16

A. The Noia Decision.

After the summary of the facts, the Noia opinion launches

into what may be the most extensive cistortion of history in the

annals of jurisprudence. Nei2’s departures from reality cannot

be cataloged in the short space allotted for an amicus brief.

Fortunately, they do not need to be, for they are fully and

devastatingly Gescribed in more learned sources. First, there is

the characteristically scholarly dissent by Justice Harlan. Noi2,

372 U. S., at 449-463. Noia’s version of the history of the

common law writ is fully refuted in Oaks, Legal History in the

High Court — Habeas Corpus, 64 Mich. L. Rev. 451 (1966).

The true story of the legislative history is given in Mayers, The

Habeas Corpus Act of 1867: The Supreme Court as Legal His-

torian, 33 U. Chi. L. Rev. 31 (1965). Justice Powell branded

the Noia version of history “revisionist” in Schneckloth v.

Bustamonte, 412 U. S. 218, 252 (1973) (concurrence) although

he generously attributed his differences to “recent

scholarship.” Jd., at 253.

This rewrite of history was apparently thought to be neces-

sary to justify the next step: ignoring a landmark precedent

squarely on point. In Brown v. Allen, 344 U. S. 443 (1953), this

Court considered three cases together. Procedural default was

an issue in the case of the third petitioner, Daniels.

Daniels’ case was similar to the present case. His counsel

filed the appeal a day late, and it was stricken as untimely.

Brown equated failure to appeal with failure to object. IJd., at

486. Significantly, the Brown Court noted that the state

procedural defauit rule did not itself violate the Constitution.

Ibid. The Court concludes Daniels’ case with this paragraph:

“Finally, federal courts may not grant habeas corpus

for those convicted by the state except pursuant to

§ 2254. See note 17, supra. See also note 2, supra.

We have interpreted § 2254 as not requiring repeti-

tious applications to state courts for collateral relief; p.

447, supra, but clearly the state’s procedure for relief

must be employed in order to avoid the use of federal

habeas corpus as a matter of procedural routine to

17

review state criminal rulings. A failure to use a state’s

available remedy, in the absence of some interference

or incapacity, such as is referred to just above at notes

32 and 33, bars federal habeas corpus. The statute

requires that the applicant exhaust available state

remedies. To show that the time has passed for appeal

is not enough to empower the Federal District Court to

issue the writ. The judgment must be affirmed.” Jd., at

486-487 (emphasis added).

Words do not get much clearer than these. Although the

procedural default rule has exceptions, where the rule applies

it is mandatory and jurisdictional, not discretionary and based

on comity. Yet after mentioning Daniels’ case briefly, Noia

says “The point is that the Court, by relying upon a rule of

discretion, avowedly flexible, ... , has refused to concede ju-

risdictional significance to the abortive state court

proceeding.” Noia, supra, 372 U. S., at 426. That statement is

quite simply false.

It is one thing to carefully consider a past decision, decide it

was ill-advised, and honestly overrule it. It is quite another to

simply pretend that a precedent does not say something which

it unquestionably does say.

“[The] doctrine [of stare decisis] permits society to

presume that bedrock principles are founded in the

law rather thar in the proclivities of individuals, and

thereby contributes to the integrity of our constitu-

tional system of government, both in appearance and

in fact. While stare decisis is not an inexorable com-

mand, the careful observer will discern that any de-

tours from the straight path of stare decisis in our past

have occurred for articulable reasons, and orly when

the Court has felt obliged ‘to bring its opinions into

agreement with experience and with facts newly ascer-

tained.’ ” Vasquez v. Hillery, 474 U. S. 254, 265-266

(1986).

Given the importance of the doctrine, is a case entitled to

any more respect as stare decisis than the case itself paid to

18

stare decisis? Amicus submits that it is not. If responsible

judges are duty bound to abide by irresponsible precedents,

our law will very quickly degenerate.

Third, and finally, Noia commits the cardinal sin of Article

III adjudication: it announces a rule which it does not apply to

the case before it. See Wainwright v. Sykes, 433 U.S. 72, 95-

96, n. 3 (1977) (Stevens, J., concurring). Noia had counsel,

knew he had the right to appeal, and specifically decided not

to. Noia, 372 U. S., at 397, n. 3. A bypass more deliberate can

scarcely be imagined.

The Court decided that Noia’s clearly deliberate bypass

would not be deemed deliberate because he had a good rea-

son: fear of a death sentence on retrial. /d., at 440. This re-

sult is better explained by the Sykes test than it is by the Noia

test. The Court believed Noia had good cause, and the fate of

the co-defendants leaves no doubt as to prejudice. See id., at

395-396.

The failure of Noia to apply its own test provides the best

reason for not accepting the deliberate bypass test as prece-

dent. It is pure obiter dicta. See Sykes, supra, 433 U. S., at 87.

As such, it has never been precedent. Cohens v. Virginia, 6

Wheat. (19 U. S.) 264, 399-400 (1821).

B. Subsequent Developments.

Noia made two substantial changes in the law. It replaced

the absolute bar of defaulted claims with the “deliberate by-

pass” test, and it rejected both exhaustion and independent

State grounds as bases for the procedural defauit rule. Neither

of these holdings is the law today.

Davis v. United States, 411 U. S. 233 (1973) introduced

“cause and prejudice” into the procedural default lexicon.

Davis held that Fed. Rule Crim. Proc. 12(b) was an express

waiver provision enacted by Congress with a specific standard

for exceptions. That standard could noi properly be defeated

by permitting collateral review upon a lesser standard. /d., at

242.

19

Francis v. Henderson, 425 U. S. 546 (1976) extended Davis

to similar claims by state prisoners. Considerations of

federal/state comity require at least as much respect for state

waiver rules as for federal rules in similar circumstances. Id.,

at 541-542. As noted above, Wainwright v. Sykes specifically

rejected the Noia rule as dictum. Reed v. Ross, 468 U. S. 1, 10-

11 (1984) confirmed that Sykes applied to appellate defaults.

Murray v. Carrier, 477 U. S. 478, 490-492 ( 1986) eliminated any

lingering doubt on that point.

Coleman still asserts Noia as authority for the deliberate

bypass test when there has been no appec! at all. Pet. Brief

39-40. For the reasons discussed in part C, below, this is a dis-

tinction without a difference.

Noia’s rejection of exhaustion as the basis for the proce-

dural default rule, 372 U. S., at 434-435, still stands. Brown v.

Allen, suprc, is effectively overruled on this point. Noia’s

adoption of the Johnson v. Zerbst, 364 U. S. 458, 464 (1938)

waiver standard, however, is rejected by Sykes, supra, 433

U. S., at 87-88. Sykes itself did not explicitly fill in the doctri-

nal gap, however. It referred at different points to comity and

federalism, id., at 84, 88, and to independent staie grounds.

Id., at 81.

Harris v. Reed, 489 U. S. 255 (1989) has now clarified the

doctrinal vagueness of Sykes.

“The confusion among the courts evidently stems from

a failure to recognize that the procedural default rule

of Wainwright v. Sykes has its historical and theoretical

basis in the ‘adequate and independent state ground’

doctrine. 433 U. S., at 78-79, 81-82, 87. Once the line-

age of the rule is clarified, the cure for the confusion

becomes apparent.” /d., at 260 (footnote omitted).

The last vestige of Noia was supplanted in Harris. The

independent state ground doctrine is now firmly established as

the theoretical basis of the procedural default rule. Yet the

magic word “overruled” has never been attached to Noia. The

decision is something like the Cheshire Cat. See L. Carroll,

20

Alice’s Adventures in Wonderland ch. 6 (1865). It is still cited

as precedent even after everything of substance has disap-

peared. See Pet. Brief 40 and cases there cited.

C. The State’s Interest in Finality.

The “deliberate bypass” test of Fay v. Noia is, in reality, an

abolition of all state procedural requirements for the assertion

of federal rights. So long as the defendant does not personally

and intentionally waive the right in the sense of Johnson v.

Zerbst, 304 U. S. 458 (1938), he can assert it at any time he

pleases. The only “sanction” which the state can invoke for

disregard of its rules is to throw Br’er Rabbit into the briar

patch by sending him directly to federal court.

The post-Noia cases have all had more respect for the in-

tegrity of the state courts. Cases invoiving trial or pre-trial

defaults have emphasized the need for on-the-spot correction

by the trial court. See Davis v. United States, 411 U. S. 233,

241 (1973); Wainwright v. Sykes, 433 U. S. 72, 88-89 (1977).

The appellate default cases have recognized the need to re-

solve all issues at the earliest possible time. See Reed v. Ross,

468 U. S. 1, 10 (1984); Murray v. Carrier, 477 U. S. 478, 490-

491 (1986).

The common thread running through all these cases is a

balancing of the interests. “On the one hand, there is Con-

gress’ expressed interest in providing a federal forum for the

vindication of constitutional rights of state prisoners ....% On

the other hand, there is the State’s interest in the integrity of

its rules and proceedings and the finality of its judgments . . . .”

Reed v. Ross, supra, 468 U. S., at 10.

Petitioner attempts to distinguish the entire cause and

prejudice line of cases by looking microscopically at Sykes and

Camer and noting that the very specific finality interests men-

tioned in each one are not present in this case. Pet. Brief 42-

44. Reed v. Ross, however, recognized the state's interest in

broader tuims. The integrity of the state’s rules and proceed-

ings and the finality of its judgments would be severely im-

paired by a rule which effectively sweeps aside the state's dead-

21

lines for appeals.

Browder v. Director, Ill. Dept. of Corr., 434 U. S. 257 (1978)

recognizes the importance of time deadlines on appeals.

Browder noted that Fed. Rule App. Proc. 4(a) applies to ha-

beas corpus, id., at 265, n. 9, and held that the civil rules in

question also applied. /d., at 271. The Court had this to say

about the importance of time limits:

“The purpose of the rule is clear: It is ‘to set a definite

point of time when litigation shall be at an end, unless

within that time the prescribed application has been

made; and if it has not, to advise prospective appellees

that they are freed of the appellant’s demands. Any

other construction of the statute would defeat its

purpose.’ ” /d., at 264 (quoting Matton Steamboat Co.

v. Murphy, 319 U.S. 412, 415 (1943) (emphasis

added)).

For this reason, the time limit was held to be “mandatory

and jurisdictional.” Jbid. When the losing party in a federal

habeas corpus case defaults under Rule 4(a) and 28 U. S. C.

§ 2107, the Court of Appeals lacks the power to review the

judgment. Strict time limits are “thoroughly consistent with

the spirit of the habeas corpus statutes.” /d., at 271.°

If the federal courts will strictly enforce time limits in fed-

cral habeas proceedings, why should the state’s time limits be

entitled to any less respect? Cf. Francis v. Henderson, 425

U. S. 530, 541-542 (1976). The state’s interests in finality are

just as important as in the other cause and prejudice cases, and

they call for the same compromise result. Neither the abso-

lute, jurisdictional bar of Brown v. Allen nor the virtually un-

limited review of Fay v. Noia is called for here. The cause and

prejudice test remains the appropriate balance.

9. The would-be appellant in Browder was the state, but nothing in the

Opinion or in the statutes or rules on which it is based suggests that the

result would be different if the roles were reversed.

22

D. Conclusion.

As we stated at ihe beginning of this section, Fay v. Noia

has been dead for years. It is time to give it a burial, respectful

or not. Cf. Gideon v. Wainwright, 372 U. S. 335, 349 (1963)

(Harlan, J., concurring). Noia should be explicitly overruled.

CONCLUSION

The reasons why ineffective assistance on collateral review

should not be considered “cause” are well stated in the brief of

the Attorney General, and amicus will not burden the Court

with repetitive argument here. We will make one additional

point, however. Coleman’s claim that he has been denied any

review of his claims, Pet. Cert. question 3, is simply incorrect.

Coleman’s claims in this matter have been reviewed either

by the state supreme court on direct appeal or by the state

habeas court. What he seeks now is not initial review but

repeated review.

Yet despite the fact that Coleman was convicted of a

terrible crime in a proceeding which has been reviewed and

found free of reversible error, the contention will surely be

made that Coleman will be executed “because” of his lawyers’

mistake. Cf. Butler v. McKellar, 110 S. Ct. 1212, 1225-1226,

108 L. Ed. 2d 347, 366 (1990) (Brennan, J., dissenting). Such

accusations are nonsense. If this Court affirms, Coleman will

be executed because he raped and murdered Wanda Faye

McCoy.

The decision of the Court of Appeal for the Fourth Vircuit

should be affirmed.

Dated: January, 1991

Respectfully submitted,

KENT S. SCHEIDEGGER

Attomey for Amicus Curiae