# Amicus Curiae Brief — Coleman v. Thompson

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0493%3A10

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1990
- **Citation:** 498 U.S. 937

## Text

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’

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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

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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
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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

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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

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0493%3A10. Public record. Not legal advice.