Amicus Curiae Brief — Coleman v. Thompson

ry

NO. 89-7662

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1990

ROGER KEITH COLEMAN, Petitioner

- versus -

CHARLES E. THOMPSON, WARDEN Respondent

MECKLENBURG CORRECTIONAL CENTER

OF THE COMMONWEALTH OF VIRGINIA

On Writ Of Certiorari To The

United States Court of Appeals

For The Fourth Circuit

BRIEF OF AMICI CURIAE FOR RESPONDENT THOMPSON

BY KENTUCKY AND ALABAMA, ARKANSAS, COLORADO,

DELAWARE, FLORIDA, HAWAII, IDAHO, ILLINOIS,

INDIANA, MARYLAND, MINNESOTA, MISSOURI,

MONTANA, NEBRASKA, NEVADA, NEW JERSEY, NORTH

CAROLINA, PENNSYLVANIA, SOUTH CAROLINA, UTAH,

WASHINGTON, WEST VIRGINIA

FREDERIC J. COWAN

KENTUCKY ATTORNEY GENERAL

*IAN G. SONEGO

ASSISTANT ATTORNEY GENERAL

STATE CAPITOL BUILDING

FRANKFORT, KENTUCKY 40601

(502) 564-7600

COUNSEL FOR AMICI CURIAE

*Counsel of Record

Honorable Jimmy Evans

Attorney General of Alabama

Honorable Winston Bryant

Attorney General of Arkansas

Honorable Gale Norton

Attorney General of Colorado

Honorable Charles M. Oberly, III

Attorney General of Delaware

Honorable Robert A. Butterworth

Attorney General of Florida

Honorable Warren Price, III

Attorney General of Hawaii

Honorable Larry EchoHawk

Attorney General of Idaho

Honorable Roland W. Burris

Attorney General of Illinois

Honorable Linley E. Pearson

Attorney General of Indiana

Honorable J. Joseph Curran, Jr.

Attorney General of Maryland

Honorable Hubert H. Humphrey, III

Attorney General of Minnesota

Honorable William L. Webster

Attorney General of Missouri

Honorable Marc Racicot

Attorney General of Montana

Honorable Don Stenbert

Attorney General of Nebraska

Honorable Frankie Sue Del Papa

Attorney General of Nevada

Honorable Robert J. Del Tufo

Attorney General of New Jersey

Honorable Lacy H. Thornburg

Attorney General of North Carolina

Honorable Ernest D. Preate, Jr.

Attorney General of Pennsylvania

Honorable T. Travis Medlock

Attorney General of South Carolina

Honorable Paul Van Dam

Attorney General of Utah

Honorable Ken Eikenberry

Attorney General of Washington

Honorable Mario Palumbo

Attorney General of West Virginia

o if «

*QUESTIONS PRESENTED FOR REVIEW

1. Under Harris v. Reed, (1989) 489 U.S.

255, is it permissible for the federal

court to analyze, on federal habeas

review, state law and state court record

to determine whether federal claims are

barred by state procedural default?

2. Should federal court waive procedural

default resulting from post-conviction

counsel’s failure to file timely appeal

when default would bar any hearing on

petitioner’s constitutional claims?

3. Does the deliberate bypass standard of

Fay v. Noia, 372 U.S. 391 (1963), continue

to apply to procedural default resulting

from complete failure to take appeal?

*This brief will only address questions 2

and 3.

COUNTERSTATEMENT OF

QUESTIONS 2 and 3 PRESENTED FOR REVIEW

DOES ATTORNEY ERROR IN STATE

PROCEEDINGS WHERE THE SIXTH

AMENDMENT’S RIGHT TO COUNSEL DOES NOT

APPLY CONSTITUTE "CAUSE" TO EXCUSE A

PROCEDURAL DEFAULT?

- iii -

INTERESTS OF AMICI CURAIE IN SUPPORT

OF RESPONDENT eeeeeeesgsesce#n3eeeeees e# @ 1

SUMMARY OF ARGUMENT.....--+eeeeeees 1-3

DTT « 6666606666868 606 CSOCEECREE 3-26

I. IN PROCEEDINGS WHERE THE SIXTH

AMENDMENT RIGHT TO COUNSEL DOES

NOT APPLY (STATE POST-CONVICTION

PROCEEDINGS), ATTORNEY ERROR MAY

NOT CONSTITUTE "CAUSE" FOR STATE

PROCEDURAL DEFAULT.....+-+eeeeee2e+ 3726

CONCLUSION... cccccccccccccescccscveces 26

- iv -

PAGE NO.

Cases:

Alston v. State,

521 N.E.2a@ 1331 (Ind.App. 1988).... 15, 17

Andre v. Guste,

850 F .2d 259 (5th Cir. 1988)...... 16

Barefoot v. Estelle,

463 U.S. 880 at 887 (1983)......... 9, 11

Blair v. Armontrout,

916 F.2d 1310 at 1331-1332

Cc cee cecccccccesces§ 686

Wiev i .

847 F.2d 420 (7th Cir. 1988),

cert.denied 489 U.S. 1039.......... 19

Coleman v. Commonwealth,

226 Va. 31, 307 S.E.2d 864

(1983), cert. denied 465 U.S.

1109 CAPSS ccccceccesvecccecccccccces 4

Coleman v. Thompson,

895 F.2d 139

i fs Mee ceeeseeesonseesons 4

Commonwealth v. Lawson,

549 A.2d 107 (Pa. 1988).........22.- 15, 17

Datta v. Maass,

91 Or.App., 222, 754 P.2d 36

(1988), review denied, 306 Or.

413, 761 P.2d a) ees este e *eeneee 15

Delo v. Stokes,

110 S.ct. 1880 (2990) .cccccccececces 25

- VYeo-=

Engle v. Issac,

ee Nc cc cecenceucear

vi ’

rr er ee ed ceeeiees

Fay v. Noia,

. ge Se eee

Lane v. State,

521 N.E.2d 947 (Ind. 1988)

gore, Gemsae 136 §.CE. B68. ccccvcces

Larson v. United States,

275 F.2d 673 (5th Cir. 1960)...... fa

Lingar v. State,

766 S.W.2d 640 (Mo., 1989),

cart. Ganiad 110 S.Ct. 25B..ccccess

Morrison v. Duckworth,

1300-1301 (7th Cir. 1990)..........

Murray v. Carrier,

477 U.S. 478 at 494-495 (1986).....

u v. Giarratano,

489 U.S. , 109 S.Ct. 2765,

Se Se Bg

Pennsylvania v. Finley,

481 Wee 551 (1987) ccccccces i. eh ee om

People v. Churchill,

136 Ill.App.3d 123, 482 N.E.2d

355 (1985), cert. denied

476 Welle 8 RR a

People v. Churchill,

8 2 f=

15

20

15

16

‘

835 F.2d 1567

(11th Cir. 1988),

cert. denied 488 U.S. 1050......... 18

Resnover v. State,

547 N.E.2d 814 (Ind. 1989)....... eye

Sanders v. United States,

es 2 eee ci weddccdcesace Oy

Schiro v. State

’

533 N.E.2d 1201 (Ind. 1989)

cert. denied 110 S.Ct. 268...ccceeee 15

Smith v. Murray,

477 U.S. S27 (1986) .ccccccccccccces 6

Strickland v. Washington,

466 U.8. GES (19S46) .ccccccccccccces 9,

Thomas v. Arn,

ee ae ee ES oc cc ue de ee 6eeen 10

Toles v. Jones,

888 F.2d 95 (llth Cir. 1989),

en banc rehearing granted,

a Be ge ere 20

United States ex rel.

We W ,

699 F.2d 354 (7th Cir. 1983)....... 17

United States v. Frady,

fo oe 8. a F

V j Vv ommonw ;

1990 Kentucky Lexis 96

(September 27, 1990)... eeeevseves 14

Wainwri Vv ,

0 en 5,

- vii -

12

11

21

‘

455 U.S. 586 (1982) wccccccccccsccccse De

Yakus v. United States,

321 U.S. 414 (1944) cccccccccccccces 22

VIRGINIA COURT RULE

Virginia Supreme Court

Rule File )\PPrrerrerrerererereerererne 4

FEDERAL STATUTES

Title 28 U.S.C. Section 2254....... 19

Title 28 U.S.C. Section 2255....... 8

- viii -

8

INTERESTS OF AMICI CURIAE IN

SUPPORT OF RESPONDENT THOMPSON

The Amici Curiae represented here are

States interested in the application of the

rule of procedural default regarding state

court post-conviction proceedings as a bar

upon claims made by petitioners in federal

habeas corpus proceedings.

Amici submit this brief in support of

Respondent, Charles E. Thompson, Warden,

Mecklenburg Correctional Center, Commonwealth

of Virginia, through their Attorneys General

or Chief State Attorneys pursuant to United

States Supreme Court Rule 37.3.

0 RGUMENT

In Wainwright v. Sykes, 433 U.S. 72 at

88-90 (1977), this Court recognized a basic

principle of finality for criminal convictions

and imposed a requirement of "cause and

prejudice" to excuse a procedural default in

state court regarding constitutional errors

asserted in a federal court habeas petition.

The Sykes requirement is applicable to state

- l-

post-conviction proceedings and appeals. The

Sixth Amendment’s right of effective

assistance of counsel is not applicable to

post-conviction proceedings and appeals. A

violation of the Sixth Amendment’s right to

effective assistance is "cause" for procedural

default, but when the Sixth Amendment does not

apply, no right to counsel exists and

counsel’s errors may constitutionally be

imputed to the habeas petitioner since no

constitutional right has been violated. Ifa

habeas petitioner may assert an error of

counsel in a state post-conviction proceeding

Or appeal as "cause" for procedural default,

the Sykes principle of finality will be

destroyed since a habeas petitioner may

undertake endless successive litigation merely

by alleging ineffective assistance of counsel

in the previous post-conviction proceeding or

appeal. The state courts would, as a

practical matter, be forced to permit

successive post-conviction petitions, and the

federal courts would be required to permit

-2-

successive habeas petitions, in order to

resolve successive claims of ineffective

assistance of counsel regarding the previous

post-conviction proceeding or appeal. Sykes

and subsequent opinions of this Court applying

Sykes have effectively adopted Justice

Harlan’s dissenting opinion in Fay v. Noia,

372 U.S. 391 at 448-476 (1963). The Sykes

principle of finality requires that the

"deliberate bypass" standard of Fay v. Noia,

372 U.S. at 438-439 be overruled and that

"cause" for a procedural default ina

post-conviction proceeding or appeal be

limited to external impediment or actual

innocence.

ARGUMENT

IN PROCEEDINGS WHERE THE SIXTH AMENDMENT

RIGHT TO COUNSEL DOES NOT APPLY (STATE

POST-CONVICTION PROCEEDINGS), ATTORNEY

ERROR MAY NOT CONSTITUTE "CAUSE" FOR STATE

PROCEDURAL DEFAULT.

Coleman was convicted of rape and capital

murder in the Virginia State courts. The

Supreme Court of Virginia affirmed his

a a

conviction on direct appeal. Coleman v.

Commonwealth, 226 Va. 31, 307 S.E.2d 864

(1983), cert. denied 465 U.S. 1109 (1984).

Next Coleman filed a petition for

post-conviction relief (application for a writ

of habeas corpus under Virginia law) in the

appropriate state court. The Buchanan County

Circuit Court held an evidentiary hearing and

denied the writ. Coleman’s post -conviction

counsel filed a petition for leave to appeal

to the Virginia Supreme Court, but because his

notice of appeal had been filed more than

thirty (30) days after entry of final judgment

in violation of Virginia Supreme Court Rule

5:9(a), the Virginia Supreme Court dismissed

the appeal. Coleman v. Thompson, 895 F.2d 139

at 141-142 (4th Cir. 1990). The Federal

District Court and the Fourth Circuit

concluded that the failure of Coleman’s

post-conviction counsel to timely and properly

perfect his application for appeal to the

Virginia Supreme Court constituted a

procedural default barring review of his

- 4-

claims under the federal habeas corpus

statute. 895 F.2d at 144. In concluding that

Coleman failed to demonstrate "cause" for his

procedural default, the Fourth Circuit stated

in part, 895 F.2d at 144:

The difference in the proceedings

[between a direct appeal from a

judgment of conviction and a

discretionary appeal from a denial of

post-conviction relief] is significant,

for a state prisoner seeking a writ of

habeas corpus does not have a

constitutional right to counsel.

Murray v. Giarratano, __ U.S. __, 109

S.Ct. 2765, 106 L.Ed.2d 1 (1989).

Wainwright v. Torna [455 U.S. 586

(1982)] rejects a claim that is

essentially similar to Coleman’s. In

Torna, a prisoner’s counsel filed an

application for discretionary review in

the State Supreme Court one day late.

The prisoner charged that this error

denied him effective assistance of

counsel. The Supreme Court held:

"Since [the prisoner] had no

constitutional right to counsel, he

cannot be deprived of the effective

assistance of counsel by his retained

counsel’s failure to file the

application timely." 455 U.S. at

587-88. Because Coleman, like Torna,

had no constitutional right to counsel,

he cannot be deprived of the effective

assistance of counsel. Thus, he cannot

show "cause" by showing ineffective

assistance of counsel.

In Wainwright v. Sykes, 433 U.S. 72 at

88-90 (1977), this Court recognized a basic

- 5 «-

a

principle of finality for criminal convictions

and imposed a requirement of “cause and

prejudice" to excuse a procedvral default in

state court regarding constitutional errors

asserted in a federal habeas petition. Sykes

limited the "deliberate bypass" standard of

Fay v. Noia, 372 U.S. 391 at 438-439 (1963). -

The Sykes rule and finality principle were

reiterated by this Court in Engle v. Issac,

456 U.S. 107 at 126-129 (1982). See

especially Id., 456 U.S. at 126-128 and n.31

{[citing, inter alia, Sanders v. United States,

373 U.S. 1 at 24-25 (1963) (Harlan, J.,

dissenting)]. The Sykes standard and finality

principle were subsequently applied to state

appellate court proceedings. Murray v.

Carrier, 477 U.S. 478 at 494-495 (1986); Smith

v. Murray, 477 U.S. 527 at 533 (1986).

In Pennsylvania v. Finley, 481 U.S. 551

(1987), the Court held that the states are not

required by the federal constitution to

provide assistance of counsel in collateral

(post-conviction) proceedings and that if a

- 6 -

state elects to do so such counsel need not

comply with all the requirements imposed

pursuant to the Sixth Amendment. The court

stated in part, 481 U.S. at 555:

We have never held that prisoners have

a constitutional right to counsel when

mounting collateral attacks upon their

convictions, and we decline to do so

today. Our cases establish that the

right to appointed counsel extends to

the first appeal of right, and no

further. Thus, we have rejected

suggestions that we establish a right

to counsel on discretionary appeals.

We think that since a defendant has no

constitutional right to counsel when

pursuing a discretionary appeal on

direct review of his conviction, a

fortiori, he has no such right when

attacking a conviction that has long

since become final upon exhaustion of

appellate process. [Citations omitted. }

The court further stated in Finley, 481

U.S. at 558 and 559:

[T)he substantive holding of Evitts [v.

Lucey, 469 U.S. 387 (1985)] -- that the

State may not cut off a right to appeal

because of a lawyer’s ineffectiveness

-- depends on a constitutional right to

appointed a counsel that does not exist

in state habeas proceedings. ... At

bottom, the decision below rests on

premise that we are unwilling to accept

-- that when a State chooses to offer

help to those seeking relief from

-7J7-

convictions, the Federal Constitution

dictates the exact form that such

assistance must assume. .. . In this

context, the Constitution does not put

the State to the difficult choice

between affording no counsel whatsoever

or following the strict procedural

guidelines annunciated [pursuant to the

Sixth Amendment. ]

In Evitts v. Lucey, 469 U.S. 387, 396,

n.7, the court noted in part:

Of course, the right to effective

assistance of counsel is dependent on the

right to counsel itself. See Wainright v.

Torna [{supra.}] ("Since respondent had no

constitutional right to counsel, he cannot

be deprived of effective assistance of

counsel by his retained counsel’s failure

to file the application timely") (footnote

omitted).

In United States v. Frady, 456 U.S. 152 at

164-165 (1982), the ninth collateral attack

upon a D.C. conviction pursuant to Title 28

U.S.C. Section 2255, the Court found that the

D.C. Circuit had erroneously applied the

"plain error" standard for direct appeals to a

collateral attack and stated:

Once the defendant’s chance to appeal

has been waived or exhausted, however,

we are entitled to presume he stands

fairly and finally convicted,

especially when as here, he already has

had a fair opportunity to present his

Claims to a federal forum. Our trial

- 8 -

and appellate procedures are not so

unreliable that we may not afford their

completed operation any binding effect

ies ss

post conviction collateral attacks. To

the contrary, a final judgment commands

respect. For this reason, we have long

and consistently held that a collateral

challenge may not do service for an

appeal. [Emphasis added. }

In Barefoot v. Estelle, 463 U.S. 880 at

887 (1983), the Court stated in pertinent

part:

[I]t must be remembered that direct

appeal is a primary avenue for review

of a conviction of a sentence, and

death penalty cases are no exception.

When the process of direct review --

which, if a federal question is

involved includes the right to petition

this Court for a writ of certiorari --

comes to an end, a presumption of

finality and legality attaches to the

conviction and sentence. The role of

federal habeas corpus proceedings,

while important in assuring the

constitutional rights are observed, is

secondary and limited. Federal Courts

are not forums in which to relitigate

state trials.

Also see Strickland v. Washington, 466

U.S. 668 at 697 (1984), "[T]he presumption

that a criminal judgment is final is at its

strongest in collateral attacks on that

judgment."

il

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

this Court affirmed the judgment of the Sixth

Circuit which had held that Thomas had

forfeited her right to appeal from the

judgment of the district court denying the

habeas corpus writ by failing to file

objections to the federal magistrate’s report

as required by a rule of the Sixth Circuit.

It should be noted that in that case Thomas

was represented by counsel and the error in

failing to object to the Magistrate’s Report

was that of counsel representing Thomas in the

habeas corpus proceeding. The final argument

made by Thomas was that the decision of the

Sixth Circuit denied her statutory right of

appeal in violation of the Due Process

Clause. On this point, the court stated in

part:

We recently reiterated our

long-standing maxim that "the State

certainly accords due process when it

terminates a claim for failure to

comply with a reasonable procedural or

evidentiary rule." The same rationale

applies to the forfeiture of an appeal,

and we believe that the Sixth Circuit’s

rule is reasonable. Litigants subject

- 10 -

to the Sixth Circuit’s rule are

afforded "ar. opportunity ....

granted at a meaningful time and ina

meaningful manner," to obtain a hearing

by the Court of Appeals. [Citations

and secondary quotation marks omitted. }

If an attorney error, as in the Thomas

case, could forfeit a federal habeas corpus

petitioner’s right of appellate review, then

clearly a failure by counsel in a state

post-conviction proceeding to comply with

state law may operate as a procedural default

for purposes of federal habeas corpus review.

If the error of counsel, as in the Thomas

case, may be imputed to the federal habeas

corpus petitioner on appeal in federal court,

then the error of counsel in a state

post-conviction proceeding appeal may also be

imputed to the federal habeas corpus

petitioner. As this Court’s opinion in

efo v. Est , and United States v.

Frady, supra, suggest post-conviction

proceedings, be they state or federal, are

secondary to the primary means of review,

direct appeal from conviction (to the extent

authorized by law).

- ll -

_ «il

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

the Court held that defense counsel’s

inadvertence in failing to raise a due process

claim on direct appeal from conviction in

state court did not establish cause for

procedural default in order to permit a

federal court to review the claim under the

habeas corpus statute. In that case, the

court stated in part, 477 U.S. at 488:

So long as a defendant is represented

by counsel whose performance is not

constitutionally ineffective under the

standard established in Strickland 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.

Instead, we think that the existence of

cause for a procedural default must

ordinarily turn on whether the prisoner

can show that some objective factor

external to the defense impeded

counsel’s effort’s to comply with the

State’s procedural rule... .

Similarly, if a procedural default is a

result of ineffective assistance of

counsel, the Sixth Amendment itself

requires that responsibility for

default be imputed to the State[.}

[Emphasis added. }

In Strickland v. Washington, 466 U.S. 668

at 687 (1984), the court established the

standard for ineffective assistance of counsel

and described it in pertinent part:

- 12 -

(T)he defendant [habeas petitioner]

must show that counsel’s performance

was deficient. This requires showing

that counsel made errors so serious

that counsel was not functioning as the

" "

“counsel" guaranteed the defendant by

the Sixth Amendment. [Emphasis added. ]

The Court further stated in Murray v.

Carrier, 477 U.S. at 491 and 492:

We likewise believe that the standard

for cause should not vary depending on

the timing of a procedural default on

the strength of an uncertain and

difficult assessment of the relative

magnitude of the benefits attributable

to the state procedural rules that

attach at each successive stage of the

judicial process. .. . It is apparent

that frustration of the State’s

interests that occurs when an appellate

procedural rule was broken is not

significantly diminished when counsel’s

breach results from ignorance or

inadvertence rather than a deliberate

decision, tactical or not, to abstain

from failing to raise the claim.

x* «+ j++ &

The real thrust of respondent’s

arguments appears to be on appeal that

it is inappropriate to hold the

defendants to the errors of their

attorneys. Were we to accept that

proposition, defaults on appeal would

presumably be governed by rule

equivalent to Fay v. Noia’s "deliberate

by-pass" standard [372 U.S. 391 at

438-439 (1963)], under which only

personal waiver by the defendant will

require enforcement of a procedural

default. We express no opinion as to

whether counsel’s decision not to take

an appeal at all micnt require

treatment under sucn a standard[. }

- 13-

Petitioner’s assertion to the effect that

convicts must be guaranteed effective

assistance of post-conviction counsel in order

to pursue a claim of ineffective assistance of

trial counsel should be rejected because such

a guarantee would ultimately permit unlimited

litigation of ineffective assistance of

counsel claims merely by alleging counsel in a

previous post-conviction proceeding or appeal

therefrom (including federal habeas

proceedings) was ineffective. It cannot be

doubted that such claims are increasingly

being asserted by convicts attacking their

convictions. See for example: Vunetich v.

monw th, 1990 Kentucky Lexis 96

(September 27, 1990) (petitions for rehearing

and modification pending), [Vunetich in his

second post-conviction proceeding claimed

"that his last appellate counsel was

ineffective in raising the question of the

ineffectiveness of his previous appellate

counsel who he claims was ineffective in

- 14 =-

raising the issue of ineffectiveness of his

trial counsel."]); lLingar v. State, 766 S.W.2d

640 (Mo., 1989), cert. denied 110 S.Ct. 258,

{in a second post-conviction proceeding Lingar

claimed ineffectiveness of counsel in previous

post-conviction proceeding]; snov Vv.

State, 547 N.E.2d 814 at 816 (Ind. 1989)

(death penalty case), citing Schiro v. State,

533 N.E.2d 1201 at 1204-1205 (Ind. 1989)

(death penalty case), cert. denied 110 S.Ct.

268; Lane v. State, 521 N.E.2d 947 at 948

(Ind. 1988) cert. denied 110 S.Ct. 268, and

Alston v. State, 521 N.E.2d 1331 at 1335

(Ind.App. 1988); People v. Churchill, 136

I11.App.3d 123, 482 N.E.2d 355 (1985), cert.

denied 476 U.S. 1118; Commonwealth v. Lawson,

549 A.2d 107 (Pa. 1988); Datta v. Maass, 91

Or.App., 222, 754 P.2d 36 (1988), review

denied, 306 Or. 413, 761 P.2d 531, [ina

second post-conviction proceeding petitioner

Claimed he had ineffective assistance of

counsel in previous post-conviction

- 15 -

proceeding]; Blair v. Armontrout, 916 F.2d

1310 at 1331-1332 (8th Cir. 1990), [Blair

argued pro se his constitutional right to

effective assistance of counsel was infringed

when his court appointed counsel failed to

raise all exhausted issues in the federal

district court habeas proceeding and on appeal

therefrom); Andre v. Guste, 850 F .2d 259 at

263 (5th Cir. 1988), [habeas petitioner filed

successive petition; "[i]f we were to hold

that, despite Andre’s failure to timely appeal

the dismissal of his first petition, Andre

could obtain an out-of-time appeal by the

simple expedient of refiling his first

petition, that would be tantamount to doing

away with the clear requirements of

[Fed.R.App.P] Rule 4 for an entire class of

litigation."].

As the Illinois Court of Appeals noted in

People v. Churchill, 482 N.E.2d at 357:

The only differences between the three

[post-conviction] petitions appear to

be that each petition merely adds new

attorneys to the list of those alleged

to be incompetent. This strategy of

- 16-

continually filing new petitions for

post-conviction relief based on

incompetency of counsel could go on ad

infinitum.

As the Indiana Court of Appeals declared

in Alston v. State, 521 N.E.2d at 1335:

We decline to take a step backward and

create a new vehicle by which a

defendant could use a PCR

[post-conviction relief petition] to

attack a previous PCR on the grounds of

incompetency of counsel in that PCR

hearing, and then use yet a third PCR

to attack the competency of counsel of

the second PCR and so on in perpetuity.

In Commonwealth v. Lawson, 549 A.2d at

112, the Pennsylvania Supreme Court concluded:

[W]e cannot permit our continuing

concern for assuring that persons

charged with crime receive competent

representation in their defense to be

exploited as a ploy to destroy the

finality of judgments fairly reached

- We hold today that the mere

assertion of ineffective assistance of

counsel,is not sufficient to override

the waiver and "finally litigated"

provisions in the P.C.H.A.

[Post-Conviction Hearing Act], as to

permit the filing of repetitive or

serial petitions under the banner of

that statute. [Footnote omitted. }

In United States ex rel. Spurlark v.

Wolff, 699 F.2d 354 (7th Cir. 1983) (en banc),

the Seventh Circuit held the claim presented

-17-

by the habeas petitioner was defaulted for

‘failure to raise it on appeal in the Illinois

courts (anticipating correctly the decision in

Carrier). After reviewing the opinions of

this Court and cases from the Second, Third,

Fourth, and former Fifth Circuits, the Seventh

Circuit concluded:

After analyzing the factors discussed

[previously] .. . and the language of

the recent Supreme Court decisions we

agree that the rumors of Fay [v. Noia,

372 U.S. 391 (1963)]’s death are not

greatly exaggerated.

In Presnell v. Kemp, 835 F.2d 1567 at 1580

(llth Cir. 1988), cert. denied 488 U.S. 1050,

the Eleventh Circuit upheld a state law

prohibiting successive post-conviction

petitions. After reviewing the precedents of

this Court and the Fourth, Sixth, Seventh,

Ninth, and Eleventh Circuits, that Court

concluded that the failure to raise a claim in

the first state post-conviction petition was a

procedural default requiring that the habeas

petitioner show cause and prejudice. The

Eleventh Circuit explained its reasoning in

part (835 F.2d at 1579):

- 18 -

The cause and prejudice test is more

compatible with the scheme of section

2254 than is the deliberate bypass

test. In fact, giving a state prisoner

an evidentiary hearing in federal court

on a claim the state collateral attack

court has refused to hear because it

was in a successive petition, unless

the state proves that the prisoner

deliberately bypassed his state remedy,

would frustrate that scheme. First, as

we have pointed out, the state could

rarely demonstrate a deliberate bypass;

consequently, the federal courts almost

always would be forced to hold

evidentiary hearings on defaulted

claims. Moreover, because the

deliberate bypass test would seldom

operate to bar a claim, collateral

attack counsel might be more likely to

overlook a claim in preparing his

client’s first state petition, thus

increasing the number of claims to be

resolved in the first instance by the

federal courts.

Second, the application of the

deliberate bypass test could lead to

forum shopping. Because the deliberate

bypass test focuses on the actual

knowledge of the petitioner, rather

than the constructive knowledge of his

attorney, counsel could ensure that the

test would present no bar to a claim

Simply by not explaining the claim to

his client. The state could not meet

the deliberate bypass standard if the

petitioner was ignorant of his claim at

the time of the default.

In Buelow v. Dickey, 847 F.2d 420 (7th

Cir. 1988), cert.denied 489 U.S. 1039, the

Wisconsin Supreme Court dismissed tne Buelows’

- 19 -

petition for discretionary review of the

Wisconsin Court of Appeals’ Opinion affirming

their convictions. The Wisconsin Supreme

Court found that the petition was untimely

filed. Wisconsin argued that procedural

default barred federal habeas review of the

Buelows’ claims except under Sykes "cause and

prejudice” standard. The Seventh Circuit

agreed that Sykes should be applied rather

than the "deliberate bypass" standard of Fay

v. Noia. Likewise, in Morrison v. Duckworth,

898 F.2d 1298 at 1300-1301 (7th Cir. 1990),

the Seventh Circuit concluded that because

there is no constitutional right to counsel

for a post-conviction proceeding, the

petitioner could not assert ineffective

assistance of counsel as cause for a

procedural default in failing to assert habeas

claims in state post-conviction proceedings.

In Toles v. Jones, 888 F.2d 95 at 99-100

(1lith Cir. 1989), en banc rehearing granted,

905 F.2d 346 (1999), the Eleventh Circuit

employed analysis similar to that of the

- 20 -

Fourth Circuit in this case, citing Carrier,

Torna, and Finley:

As cause for the procedural default of

the ineffective: assistance of trial

counsel claim, Toles cites the

inadequate assistance rendered by

court-appointed coram nobis counsel.

Toles alleges that counsel shovld have

amended the pro se petition once it

became clear that an ineffective

assistance claim existed.

Constitutionally ineffective assistance

of counsel is cause for a procedural

default. This argument presupposes

that Toles has a constitutional right

to counsel in a coram nobis :

proceeding. Since Toles had no

constitutional right to coram nobis

counsel, he cannot excuse a procedural

default based upon ineffective

assistance rendered by that counsel.

[Citations omitted. ]

Amici respectfully submit that this

Court’s opinions in Wainwright v. Sykes, Engle

Vv. c, and Murray v. Carrier, supra,

effectively indicate that the court has

implicitly adopted the reasoning of the

opinion of Justice Harlan (joined by Justices

Clark and Stewart) dissenting in Fay v. Noia,

372 U.S. 391 at 448-476 (1963), and that the

“deliberate bypass standard" (372 U.S. at

438-439) should be overruled. See especially

- 21-

Engle v. Issac, 456 U.S. at 128, citing

Justice Harlan’s dissent in Sanders v. United

States, 373 U.S. 1 at 24-25 (1963). The

essence of Justice Harlan’s opinion is that if

a claim of error could not be considered by

this Court on petition for certiorari, the

claim should not be reviewed by the federal

district court under the habeas corpus

statute. (372 U.S. at 468-469). As Justice

Harlan noted (372 U.S. at 473-474), quoting

Yakus v. United States, 321 U.S. 414 at 444

(1944):

No 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.

Justice Harlan further noted in part (372

U.S. at 476), quoting Larson v. United States,

275 F.2d 673 at 679-680 (5th Cir. 1960):

Manifest justice to an accused person

requires only that he have an

opportunity to correct errors that may

have led to an unfair trial. The

orderly administration of justice

- 22 -

requires that even a criminal case some

day come to an end. [Emphasis added}

Dissenting in Sanders v. United States,

373 U.S. at 24-25, Justice Harlan stated in

part:

Both the individual criminal defendant

and society have an interest in

insuring that there will at some point

be the certainty that comes with an end

to litigation, and that attention will

ultimately be focused not on whether a

conviction was free from error but

rather on whether the prisoner can be

restored to a useful place in the

community . . . . And while the scope

of collateral review has expanded to

cover questions of the kind raised by

petitioner here, the Court has

consistently held that neither habeas

corpus [now Title 28 U.S.C. §2254] nor

its present federal counterpart §2255

is a substitute for an appeal.

The amici states respectfully submit that

this Court’s opinion in Carrier is fully

applicable to this case, and that Carrier

permits the error of Coleman’s counsel on

post-conviction appeal be attributed to

Coleman as a procedural default. It is

further submitted that the error of counsel

here, as in Carrier, cannot constitute cause

for the default.

- 23 -

As the Court recognized in Murray v.

Carrier, 477 U.S. at 489, a claim of

ineffective assistance of counsel asserted as

cause for a procedural default is simply an

indirect means of presenting a claim of

ineffective assistance of counsel. A rule

that a federal habeas corpus petitioner may

assert ineffective assistance of counsel

regarding a state post-conviction proceeding

or appeal therefrom as cause for a procedural

default in the federal habeas corpus

proceeding would simply become an indirect

means of requiring that the states guarantee

effective assistance of counsel regarding

post-conviction proceedings and appeals. The ,

states would be indirectly required to permit

a convict to file a second post-conviction

petition to require a second post-conviction

hearing in order to ascertain the

effectiveness of post-conviction counsel, or

litigate the effectiveness of post-conviction

counsel in the federal habeas court.

Furthermore, the requirement of effective

- 24 <-

assistance of post-conviction counsel would

extend infinitely to an unlimited number of

post-conviction proceedings since the convict

could allege that his immediately previous

post-conviction proceeding counsel was

ineffective in failing to assert or adequately

prove or adequately argue on appeal a claim

regarding a constitutional error that the

convict alleges occurred during his trial or

on direct appeal from his conviction.

Neither the United States Constitution nor

Congress in enacting 28 U.S.C. §2254 intended

to require that every state criminal

conviction became an endless series of

post-conviction proceedings. See Delo v.

Stokes, 110 S.Ct. 1880 (1990). As the Court

has recognized in Sykes, Issac, Carrier, Smith

and Barefoot, at some point the process must

come to a conclusion. The standard for

"cause" regarding a state post-conviction

proceeding must be limited to "external

impediment" and “actual innocence" as defined

- 25 -

in Murray v. Carrier, 477 U.S. at 492 and

495-496. Ctherwise, no criminal conviction

will ever come to a conclusion.

2) SION

WHEREFORE, the opinion below should be

affirmed.

FREDERIC J. COWAN

Joo —— GENERAL

*IAN G. SONEGO

ASSISTANT ATTORNEY GENERA

STATE CAPITOL BUILDING

FRANKFORT, KENTUCKY 40601

(502) 564-7600

COUNSEL FOR AMICI CURIAE

- 26 -