Amicus Curiae Brief — Lockhart v. Fretwell

No. 91-1393

Iu the Supreme Court of the Wuifed States

OCTOBER TERM, 1992

A.L. LOCKHART, DIRECTOR,

ARKANSAS DEPARTMENT OF CORRECTION, PETITIONER

BoBBY RAY FRETWELL

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE RIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

Amy L. Wax

Assistant to the Solicitor General

= RICHARD A. FRIEDMAN

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-221 7

A

QUESTION PRESENTED

Whether a writ of habeas corpus may issue to a

prisoner based on a claim that his counsel was in-

effective in failing to make an obiection that might

have been successful at the time but that a subse-

quent decision of this Court has shown to be meritless.

(1)

TABLE OF CONTENTS

Interest of the United States _.

Statement | LS a OT ee aT TET

Summary of argument 0.

Argument:

l. Respondent was not denied the effective assist-

ance of counsel, because his attorney's error did

not prejudice his right to a fair sentencing

A. A defendant is not denied the effective as-

sistance of counsel if his lawyer fails to

present a claim that is ultimately determined

I I al a ta 10

if the prisoner is not being held in violation

of the requirements of the Constitution as

they are currently understood 16

Il. Even if the district court was correct to grant

the writ, the State is entitled to conduct a new

sentencing hearing iiuinticeiabesiiiimssiiil snannaitiadiaals 19

Conclusion ae PP EIR TE I. 22

TABLE OF AUTHORITIES

Cases:

Butler v. McKellar, 494 U.S. 407 (1990) 16-17

Collins V. Lockhart, 754 F.2d 258 (8th Cir.), cert.

denied, 474 U.S.-1013 (1985) 2,9

Dobbert Vv. Florida, 432 U.S. 282 (1977) ... sidiiniaes “ 20

Fretwell Vv. State:

708 S.W.2d 630 (Ark. 1986) 3

728 S.W.2d 180 (Ark. 1987) 3

: Graham V. Scissor-Tail, Inc., 623 P.2d 165 (Cal.

aa ae devtnintigiinsiatiimsnen — 12

Hitehcock Vv. Dugger, 481 U.S. 393 (1987) 19

Jurek Vv. Texas, 428 U.S. 262 (1976)... 5

(11)

IV

Cases—Continued : Page

Kimmelman V. Morrison, A477 U.S. 365 (1986). 11, 12,

14, 15

Lowenfield Vv. Phelps, 484 U.S. 231 (1988) 4, 10, 12

Maine V. Moulton, A474 US. 159 (1985) | 11

Nix V. Whiteside, 475 U.S. 157 (1986) cs =

Owsley V. Peyton, 352 F.2d 804 (4th Cir. 1965) _. 12 -

Parker Vv. Dugger, 111 8. Ct. 731 (1991) 19

Penry V. Lynaugh, 492 U.S. 302 (1989) pera al ce 16

People Vv. Kan, 574 N.E.2d 1042 (N.Y. 1991) 12

Perry V. Lockhart, 871 F.2d 1384 (8th Cir.), cert.

denied, 493 U.S. 959 (1989) PE 4

Saiile v. Parks, 494 U.S. 484 (1990) 7 17

Sawyer V. Smith, 110 S. Ct. 2822 (1990) 17

State Vv. Coleman, 214 A.2d 393 (NJ. 1965) 12

Steffel V. Thompson, 415 U.S. 452 (1974) ——)

Stone V. Powell, 428 U.S, 465 (1976) 4

Strickland V. Washington, 466 U.S. G68 (1984)_ 5, 6, 10,

11,13

Teague V. Lane, 489 U.S. 288 (1989) . 16

United States Vv. Cronic, 466 U.S. 648 (1984) ——-10,.11

United States Vv. Morrison, 449 U.S. 361 (1981) 10, 21

United States ex rel. Lawrence V. Woods, 432 F.2d

1072 (7th Cir. 1970), cert. denied, 402 U.S. 983

(1971) ay Le, | 12

Zant V. Stephens, 462 U.S. 862 (1983) ss 5

Constitution and statutes:

U.S. Const. :

Art. 1, $9, Cl. 3 (Ex Post Facto Clause) = 20

Amend IV Soens te eae oar deere eT 14

Amend. VI 2.000, 12, 1B, 16, 20

Amend. VIII see eae 12, 14, 18

28 U.S.C. 2254 ee .

28 U.S.C. 2254 (a) ; 16

28 U.S.C. 2255 . ar ae a ye 1

Miscellaneous:

1B J. Moore, Moore's Federal Practice (1992) 12

Iu the Supreme Court of the United States

OCTOBER TERM, 1992

No. 91-1393

A.L. LocKHART, DIRECTOR,

ARKANSAS DEPARTMENT OF CORRECTION, PETITIONER

v.

Bossy RAY FRETWELL

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case presents the question whether a federal

court may grant a writ of habeas corpus when a

defendant’s lawyer fails to raise an issue that may

have benefited his client at the time, but which has

subsequently been shown (by virtue of a decision of

this Court) to be without merit. Although this case

involves a state prisoner seeking relief under 28

U.S.C. 2254, the principles established in this case

would likely apply to collateral attacks mounted by

federal prisoners under 28 U.S.C. 2255. The United

States therefore has a significant interest in the

Court’s analysis and decision in this case.

il)

2

STATEMENT

1. On December 14, 1984, respondent Bobby Ray

Fretwell entered the home of Sherman Sullins, a

resident of Marshall, Arkansas, stole his money at

gunpoint, and shot him dead. Respondent and two

companions then fled in Sullins’ pick-up truck. Pet.

App. A22. Respondent was tried for the crime in an

Arkansas state court in August 1985. The jury con-

victed him of capital felony murder and sentenced

him to death. /d. at A23.

During the penalty phase, the prosecutor argued

that the evidence presented at the guilt phase showed

the existence of two aggravating circumstances: that

the murder was committed for pecuniary gain, and

that the murder was committed to facilitate respond-

ent’s escape. Respondent's counsel argued that no

aggravating circumstances had been proved and that

respondent's difficult and disadvantaged childhood

Was a mitigating circumstance. Pet. App. A23. The

jury found no mitigating circumstances and one ug-

gravating circumstance—that respondent had com-

mitted the murder for pecuniary gain. The jury then

sentenced respondent ta death. /d. at A23-A24.

2. Respondent appealed his conviction and sen-

tence to the Supreme Court of Arkansas. One ques-

tion raised in that court was whether respondent's

sentence should be reversed in light of Collins vy.

Lockhart, 754 F.2d 258 (Sth Cir.). cert. denied, 474

U.S. 1013 (1985). In Collins, the Kighth Circuit had

held that a jury may not impose the death penalty on

the basis of an aggravating circumstance that dupli-

cates an element of the underlving f ‘lony. Under the

Collins rule, it was improper for the jury to consider

pecuniary gain as an aggraveting circumstance, be-

Cause pecuniary gain was an clement of respondent's

offense—murder in the course of a robbery. Because

respondent had not objected to the sentencing pro-

ceeding on that ground in the trial court, the Arkan-

sas Supreme Court declined to decide whether it

would adopt the Eighth Circuit’s position in Collins.

Rejecting the remainder of respondent's claims, the

court affirmed his conviction and sentence. Fretwell

v. State, 708 S.W.2d 630, 634 (Ark. 1986).

In his direct appeal, respondent did not raise any

claim of ineffective assistance of counsel, see Fretwell

v State, 708 S.W.2d at 631-634. In a subsequent

state haheas corpus proceeding, however, respondent

argued that his counsel had rendered ineffective

assistance by failing to raise a Collins-hased objec-

tion at the penalty phase of his trial. See Fretiell

v. State, 728 S.W.2d 180, 181-183 (Ark. 1987). The

Arkansas Supreme Court rejected that claim because,

at the time of respondent’s trial, the Arkansas courts

had not pessed on the question decided in Collins.

The state supreme court observed that “[a]n attorney

is not ineffective for failing to raise every novel issue

which might conceivably be raised.” 728 S.W.2d at

181. The court denied respondent's petition for post-

conviction relief. :

3. On May 27, 1987, respondent filed a petition for

a writ of habeas corpus under 28 U.S.C. 2254 in the

United States District Court for the Eastern District

of Arkansas. He claimed that his attorney had failed

to provide effective assistance of counsel at the sup-

pression hearing. the cuilt phase, and the penalty

phase of hi= trial. ond that the trial court had erred

in refusing to set aside the verdict as being contrary

to the evidence. Pet. App. A24-A25. The district

court rejected all of respondent's claims except the

one based on counsel's failure to object to the

submission of pecuniary gain as an aggravating

circumstance.

4

In assessing that claim, the district court observed

that the Eighth Circuit had decided Collins seven

months before respondent’s trial. The district court

concluded that, “fa]s an attorney representing :

defendant in a capital murder case, trial counsel had

a duty to be aware of all law relevant to death pen-

alty cases.” Counsel's failure to bring Collins to the

trial court’s attention and interpose an objection to

the jury’s consideration of pecuniary gain as an ay-

gravating circumstance was a “serious and signifi-

cant error,” the court concluded. Pet. App. A27. The

district court noted that Collins was no longer good

law in light of Lowenfield v. Phelps, 484 U.S, 23)

(1988); in that case, this Court held that the Con-

stitution permits a State to treat a factor as an ag-

gravating circumstance even though that factor is

also an element of the underlying offense. Sce Pet.

App. A27 n.2.' The court nevertheless ruled that

counsel's failure to object to the consideration of

pecuniary gain prejudiced respondent.

Because Collins “was the law in the Eighth Cir-

cuit” at the time of respondent's trial, the distric

court expressed confidence “that the trial court would

have followed the ruling in Collins had trial counse!

made an appropriate motion.” Pet. App. A28. The

court noted that the jury had found pecuniary gain

to be the only aggravating circumstance. Had the

trial court declined to submit the issue of pecuniary

gain to the jury, the district court_reasoned, “the

jury would have had no option but to sentence peti.

tioner to life imprisonment without parole.” The dis-

trict court therefore vacated respondent's sentence

- |The Eighth Circuit formally overruled Collins in Px rv.

Lockhart, 871 F.2d 1284. cert. denied, 493 U.S. 959 (1989),

which relied on this Court's decision in Lowen field.

and ordered that, unless Arkansas undertook to hold

another sentencing proceeding, his sentence would be

reduced to life imprisonment without parole. /bid.

4. The court of appeals affirmed in part and re-

manded with directions that respondent’s sentence be

reduced to life imprisonment without parole. Pet.

App. A1-Al4. In considering respondent's ineffective

assistance claim, the court stated that relief was ap-

propriate under this Court’s decision in Strickland y.

Washington, 466 U.S. 668 (1984), if “(1) counsel’s

performance was deficient, and (2) counsel's deficient

performance prejudiced petitioner’s defense.” Pet.

App. A5-A6. The court first rejected the State’s con-

tention that the triaf court would have “overrule[d]

a Collins objection” on the ground that Collins was

inconsistent with this Court’s decisions in Jurek vy.

Texas, 428 US. 262 (1976), and Zant vy. Stephens,

462 U.S. 862 (1983). According to the court of

appeals, those coses involved “significantly different”

sentencing schemes from the one that was at issue in

Collins, Pet. App. A6-A8,

The court of appeals then considered “whether a

state trial court \\ould have sustained a Collins objec-

tion to the instruction on pecuniary gain as an ag-

gravating circumstance.” Pet. App. A1l2. The court

reasoned that because “the precedent that existed at

the time of Trespondent’s] trial was not clearly in-

consistent with Collins and since state courts are

bound by the Supremaey Clauce to obey federal con-

stitutions! lov, we conclude that a reasonable state

trial court would have sustained an objection based

on (ne hed Fretwell’s attorney made one.” Id. at

Al2-41%. Because there was “a reasonable probabil

ity that, but for counsel's unprofessional errors, the

result of the proceeding would have heen different.”

id, at ALS (quoting Strickland, 166 U.S. at 604). the

6

court concluded that respondent had suffered preju-

dice of the kind required to make out a claim of in-

effective assistance of counsel,

The court of appeals disagreed with the district

court’s order in one respect. The district court had

offered the State the option of holding another sen-

tencing proceeding if it wished to seek the death pen-

alty. The court of appeals held that respondent should

not be subject to a resentencing proceeding at which

he might be sentenced to death. To conduct a re-

sentencing proceeding under current law, the court

of appeals stated, “would perpetuate the prejudice

caused by the origina! sixth amendment violation ”

The court therefore directed the district court to

modify its order “to reduce unconditionally | respond-

ent’s] sentence to life imprisonment without parole.”

Pet. App. Al4.

Judge Loken dissented. Pet. App. Al4-A20. He

observed that the “benchmark for judging anv claim

of ineffectiveness must be whether counsel’s conduct

so undermined the proper functioning of the adver-

sarial process that the trial cannot be relied upon as

having produced a just result.” /d. at Al5 (quoting

Strickland, 466 U.S. at 686). To establish prejudice

under Strickland, Judge Loken concluded, respond-

ent had to show not only that his sentence “probably

would have been different had his counsel made a

Collins objection,” but also that the “ineffective as-

sistance of counsel has deprived him of a fundamen-

tally fair sentencing, or of a specific constitutional

right designed to guarantee a fair sentencing.” Pet.

App. A15-A16, A17. Since the decision in Lowen field

“established that [respondent’s] sentencing jury was

given instructions that did not violate his Highth

Amendment rights” (Pet. App. Al17), Judge Loken

concluded that respondent’s sentencing proceeding

7

Was neither unreliable nor unfair, and that counsel’s

conduct therefore did not prejudice respondent.

Judge Loken also found error in the majority’s re-

fusal to permit the State an opportunity to conduct

another sentencing proceeding. As an initial matter,

Judge Loken disagreed with the majority’s premise

that the sentencing jury, to which two aggravating

circuimstances were submitted, would have returned

a verdict of life imprisonment if the issue of pecuni-

ary gain had been withheld. Pet. App. A18. Beyond

that, he noted that, by forbidding Arkansas from

seeking the death penalty at a resentencing proceed-

ing, the court of appeals ‘“‘mandat]ed] a procedure in

the name of Collins, an overruled case, that neither

Collins nor the Constitution ever required.” Jd. at

A19 (emphasis in original). sudge Loken reasoned

that, “because Lowenfield is now the law, Arkansas

must be permitted to instruct the jury at [respond-

ent’s| resentencing that pecuniary gain is a potential

aggravating circumstance.” /bid. He concluded that

“the nature of the federal habeas corpus remedy com-

pels this result, for it is surely beyond our habeas

corpus powers to prohibit the state from conducting

the resentencing proceeding in a manner wholly con-

sistent with the Constitution.” Jd. at A20.

SUMMARY OF ARGUMENT

I. In order to prevail on a claim of ineffective

assistance of counsel, a defendant must show that

his lawyer performed inadequately and that the de-

fective representation affected the outcome of the

trial. But it is not enough that the outcome would

have been different; counsel’s error also must have

denied the defendant a right to which he is entitled.

The court of appeals found that respondent’s coun-

sel performed inadequately when he failed to raise

8

an objection to the use of pecuniary gain as an ag-

gravating circumstance at sentencing when pecuni-

ary gain was established in the course of proving

the underlying offense. The court also found that

counsel’s failure to raise that issue affected the out-

come of the sentencing proceeding, since at the time

of respondent’s trial, an Eighth Circuit decision held

that such ‘double counting’ was impermissible. In

the court’s view, that was enough to justify relief in

this habeas corpus action. That conclusion was er-

roneous for two reasons.

First, more recent decisions from this Court and

from the Eighth Circuit have made it clear that

“double counting” is permissible; that is, a State

may treat as an aggravating circumstance a factor

that is also an element of the underlying offense.

Therefore, it is now clear that respondent was not

entitled to have the trial court instruct the jury to

disregard pecuniary gain as a potential aggravating

circumstance. Because counsel’s failure to raise the

Collins issue at trial did not deprive respondent of

any right to which he was entitled, he has failed to

establish the prejudice that is an essential element

of an ineffective assistance claim.

Second, respondent has failed to establish the most

fundamental requirement of habexs corpus relief: he

has not shown that he is currently being held in vio-

lation of the Constitution. Instead, the most that he

has shown is that his sentence was imposed at a

time when the Eighth Circuit believed, incorrectly

as it turns out, that sentencing proceedings such as

his were constitutionally flawed. If respondent had

challenged his sentencing proceeding on direct appeal

and the issue had reached this Court, he would not

have been entitled to relief on the ground that at

the time of his trial the Eighth Circuit believed that

9

the Arkansas sentencing scheme was invalid. He

should not be entitled to greater relief on habeas

corpus after having failed to raise the issue at trial

or on appeal and having instead raised it indirectly

through a claim of ineffective assistance of counsel

on collateral attack.

II. Even if respondent is entitled to habeas corpus

relief, he is not entitled to be free from a resentencing

proceeding at which the State may seek the death

penalty through application, of a constitutionally

valid sentencing scheme. When a federal habeas court

grants relief from a state conviction or sentence, it

ordinarily permits the State to cure the constitu-

tional error by conducting another proceeding that

accords with constitutional standards. In this case,

because the Constitution authorizes the State to use

pecuniary gain as an aggravating circumstance, there

is no reason to bar the State from conducting a new

sentencing hearing at which it will be entitled to

show, as an aggravating circumstance, that respond-

ent committed the robbery-murder for pecuniary

gain.

ARGUMENT

I. RESPONDENT WAS NOT DENIED THE EFFEC-

TIVE ASSISTANCE OF COUNSEL, BECAUSE HIS

ATTORNEY’S ERROR DID NOT PREJUDICE HIS

RIGHT TO A FAIR SENTENCING PROCEEDING

The court of appeals held that respondent’s counsel

should have objected to the use of pecuniary gain as

an aggravating circumstance in his sentencing pro-

ceeding. If counsel had done so, according to the

court of appeals, the state court probably would have

followed the Eighth Circuit’s then-applicable decision

in Collins vy. Lockhart, 754 F.2d 258, cert. denied,

474 U.S. 1013 (1985), and would have ruled in his

10

favor on that point. Absent that aggravating cir-

cumstance, the court of appeals determined, the re-

sult of the sentencing proceeding would have been

ditferent. Because counsel's error affected the out-

come of the case, the court of appeals concluded that

respondent was prejudiced within the meaning of

Strickland vy. Washington, 466 U.S. 668 (1984).

There is a basic flaw in the court of appeals’ rea-

soning. In light of this Court’s decision in Lowenfield

v. Phelps, 484 U.S. 231 (1988), it is now clear that

it was not error for the state court to permit the

jury to consider pecuniary gain as an aggravating

circumstance for sentencing purposes. Counsel’s

omission therefore did not deprive respondent of any

right to which he was entitled; at most, counsel’s

error deprived respondent of the chance to have the

state court make an error in his favor. And the loss

of a chance for a constitutional windfall cannot sup-

port a finding of ineffective assistance of counsel.

A. A Defendant Is Not Denied The Effective Assist-

ance Of Counsel If His Lawyer Fails To Present A

Claim That Is Ultimately Determined To Lack

Merit

The court of appeals’ analysis reflects a misunder-

standing of the nature and purpose of the Sixth

Amendment right to counsel. The Sixth Amendment

guarantee of the right to the assistance of counsel at

a criminal trial is designed “to assure fairness in

the adversary criminal process.” United States v.

Morrison, 449 U.S. 361, 364 (1981). Thus, “the right

to the effective assistance of counsel is recognized

not for its own sake, but because of the effect it has

on the ability of the accused to receive a fair trial.”

United States Vv. Cronic, 466 U.S. G48, 658 (1954).

11

Counsel’s assistance is “the means through which the

other rights of the person on trial are secured.”

United States y. Cronic, 466 U.S. at 653; see also

Maine vy. Moulton, 474 U.S. 159, 168-170 (1985).

“The essence of an ineffective assistance claim is

that counsel’s unprofessional errors so upset the ad-

versarial balance between defense and prosecution

that the trial was rendered unfair and the verdict

rendered suspect.” Kimmelman y. Morrison, 477

U.S. 365, 374 (1986). Fairness of the proceedings

and reliability of the verdict are central to the right.

“Absent some effect of [counsel’s] challenged conduct

on the reliability of the trial process, the Sixth

Amendment guarantee is generally not implicated.”

Cronic, 466 U.S. at 658. Thus, it is not enough

for a defendant to show that “but for counsel’s un-

professional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S.

at 694. The defendant must also demonstrate that

counsel’s conduct deprived him of a fundamentally

fair trial or sentencing, or of a specific constitutional

right designed to guarantee a fair trial or sentencing.

It follows that, even assuming respondent’s lawyer

provided inadequate representation when he failed

to raise a Collins objection at trial, and even assum-

ing respondent’s sentence would have been different

if the objection had been made,’ respondent neverthe-

2 It is by no means clear that, even if respondent had raised

an objection to the use of pecuniary gain as an aggravating

circumstance, the Arkansas courts would have agreed with

the Eighth Circuit that the sentencing proceeding was there-

fore invalid. State courts are, of course, obligated to follow

the Constitution, but they are not obligated to follow the de-

cisions of lower federal courts in determining what the Con-

stitution requires. See Steffel v. Thompson, 415 U.S. 452, 482

12

less suffered no violation of his Sixth Amendment

rights. That is because counsel’s asserted error did

not deprive respondent of a fundamentally fair sen-

tencing or of a constitutional right designed to ensure

a fair sentencing. More than two years before the

district court granted respondent’s petition for habeas

relief, this Court held in Lowenfield vy. Phelps, 484

U.S. 231 (1988), that the Eighth Amendment’s pro-

hibition against cruel and unusual punishment does

not prohibit a jury from ee the death penalty

on the basis of an aggravating circumstance that

duplicates an element of the capital offense. Thus,

under the law prevailing at the time respondent’s

habeas corpus petition was pending, the penalty phase

of respondent’s trial was valid under the Eighth

Amendment.

That analysis finds support in the opinions in Nix

v. Whiteside, 475 U.S. 157 (1986), and Kimmelman

v. Morrison, 477 U.S. 365 (1986). In Nix, this Court

considered whether defense counsel’s assistance was

ineffective because counsel coerced the defendant to

tell the truth by threatening to advise the court if his

client testified falsely. The Court paraphrased the

n.3 (1974) (Rehnquist, J., concurring) ; United States ex rel.

Lawrence V. Woods, 432 F.2d 1072, 1075-1076 (7th Cir.

1970), cert. denied, 402 U.S. 983 (1971); Owsley v. Peyton,

352 F.2d 804, 805 (4th Cir. 1965); Graham Vv. Scissor-Tail,

inc., 623 P.2d 165, 179 (Cal. 1981); State v. Coleman, 214

A.2d 393, 403-405 (N.J. 1965); People v. Kan, 574 N.E.2d

1042, 1045 (N.Y. 1991); 1B J. Moore, Moore's Federal Prac-

‘ice © 40211], at 23 (1992). The Arkansas Supreme Court

therefore might well have disagreed with the Eighth Circuit

on the validity of the Arkansas sentencing scheme, a judg-

ment that would have been vindicated by later developments

in this Court and in the Eighth Circuit.

13

Strickland prejudice requirement: “To show preju-

dice, it must be established that the claimed lapses in

counsel’s performance rendered the trial unfair so

as to ‘undermine confidence in the outcome’ of the

trial.” 475 U.S. at 165 (quoting Strickland, 466 U.S.

at 694). The Court stated that, “as a matter of law,”

counsel’s conduct could not “establish the prejudice

required for relief under the second strand of the

Strickland inquiry.” The Court explained that “the

‘benchmark’ of an ineffective-assistance claim is the

fairness of the adversary proceeding, and that in

judging prejudice and the likelihood of a different

outcome, ‘[a] defendant has no entitlement to the

luck of a lawless decisionmaker.’” 475 U.S. at 175

(quoting Strickland, 466 U.S. at 695). Even if

Whiteside’s lawyer effectively compelled him to aban-

don his intention to give perjured testimony in his

own defense, the Court noted, Whiteside “has no

valid claim that confidence in the result of his trial

has been diminished by his desisting from the con-

templated perjury. Even if we were to assume that

the jury might have believed his perjury, it does not

follow that Whiteside was prejudiced.” 475 U.S. at

175-176.

Justice Blackmun, in a concurring opinion for the

four justices who did not join the majority opinion,

agreed that no prejudice had been demonstrated under

Strickland. By asserting that he would have been

acquitted if he had been able to testify falsely, White-

side “claims a right the law simply does not recog-

nize,” Justice Blackmun explained. “Since Whiteside

was deprived of neither a fair trial nor any of the

specific constitutional rights designed to guarantee

a fair trial, he has suffered no prejudice.” 475 U.S.

at 186-187.

14

Like Whiteside’s claim, respondent’s claim that his

lawyer should have objected to the use of pecuniary

gain as an aggravating circumstance is an assertion

of “a right the law simply does not recognize.” The

Eighth Amendment confers no right on a defendant

to prevent the jury from imposing the death penalty

based on a factor that was also an element of the

underlying offense. Since the procedures employed in

the sentencing phase of respondent’s trial were fully

consistent with the Constitution, respondent was not

entitled to have his sentence invalidated on collateral

attack.

The opinion of the concurring justices in Kimmel-

man v. Morrison, supra, reiterates the same theme.

In Kimmelman, the Court held that a claim that

defense counsel was constitutionally ineffective in

failing competently to litigate a Fourth Amendment

issue could be raised on federal habeas corpus despite

the limitation of Stone v. Powell, 428 U.S. 465, 482-

496 (1976), on the use of the exclusionary rule in

habeas corpus proceedings. The Court remanded the

case because the record was “incomplete with respect

to prejudice” under Sirickland. 477 U.S. at 390. In

an opinion concurring in the judgment, Justice Powell,

joined by Chief Justice Burger and then-Justice Nehn-

quist, emphasized that the majority’s resolution of

the case had left unresolved the Strickland prejudice

issue, and strongly suggested that prejudice within

the meaning of Strickland could never result from

counsel’s failure to obtain the suppression of reliable

evidence. Justice Powell wrote, 477 U.S. at 396, that

“the admission of illegally seized but reliable evidence

does not lead to an unjust or fundamentally unfair

verdict.” Therefore, “the harm suffered by respondent

in this ease is not the denial of a fair and reliable

15

adjudication of his guilt, but rather the absence of a

windfall.” As long as the fundamental fairness of

the trial is not affected, Justice Powell noted, the

harm suffered by the defendant “does not amount to

prejudicial ineffective assistance of counsel under the

Sixth Amendment.” Jhbid. Rather, “it would shake

that right loose from its constitutional moorings to

hold that the Sixth Amendment protects criminal de-

fendants against errors that merely deny those

defendants a windfall.” 477 U.S. at 397.

From these articulations it is plain that, to show

“prejudice,” as that term is used in Strickland, re-

spondent was required to demonstrate, at a minimum,

that his counsel’s conduct deprived him of a funda-

mentally fair sentencing proceeding. Because it is

now clear that respondent’s sentencing proceeding was

fair and constitutionally valid, respondent cannot

make that showing. As Judge Loken concluded in

dissent below, the court of appeals’ decision granted

respondent a windfall that Strickland does not require.

Pet. App. Al7.

The implications of respondent’s claim are striking.

If respondent is entitled to relief because his attorney

failed to raise a qaim that might have prevailed, even

though it lacked merit, relief would also have to be

granted to a prisoner whose lawyer failed to make a

frivolous suppression motion, if the defendant could

show that the judge assigned to his case had granted

such motions in other cases. Likewise, an attorney

might be regarded as constitutionally ineffective if he

failed to pursue improper (but effective) trial iactics,

as long as the judge before whom the case was being

tried would not be likely to sustain objections to such

tactics. If effect on the outcome is the only test, then

there is no end to the meritless, improper, and even

16

unethical steps that a defense lawyer would be consti-

tutionally obligated to pursue. This Court has never

endorsed such an extravagant Sixth Amendment doe-

trine. It should not do so now.

B. Federal Habeas Corpus Relief Is Not Available If

The Prisoner Is Not Being Held In Violation Of

The Requirements Of The Constitution As They

Are Currently Understood

In addition to misapplying Strickland, the court of

appeals misinterpreted the scope of federal habeas

corpus relief. The habeas corpus statute, 28 U.S.C.

2254(a), provides that a writ of habeas corpus

may issue to an applicant “only on the ground

that he is in custody in violation of the Constitution

or laws or treaties of the United States.”” By its terms,

the statute refers to custody that violates the Consti-

tution at the present, /.e., custody that is unlawful as

of the time the writ is to be granted. If it is clear

that the procedures employed in obtaining the de-

fendant’s conviction and sentence were lawful, it does

not matter that, under the law prevailing at the time

of his trial and sentencing, the defendant might have

been able to obtain relief. Thus, in the case of a claim

of ineffective assistance of counsel, a defendant should

not be entitled to release if he does not have a pres-

ently valid claim for relief.”

*A presently valid constitutional claim is only one of the

prerequisites for obtaining relief on habeas corpus. This

Court’s recent habeas corpus decisions make it clear that a

prisoner normally is not entitled to habeas relief unless his

claim would also have been valid at the time of his trial or

when his conviction became final. See Teague v. Lane, 489

U.S. 288, 308 (1989) (plurality opinion) ; Penry v. Lyneugh,

492 U.S. 302, 318 (1989); Butler v. McKellar, 494 U.S. 407,

17

In light of this analysis, the lower courts’ focus on

the state of the law at the time of respondent’s trial

is misplaced. See Pet. App. A5-A12, A27-A28. Con-

trary to the court of appeals’ suggestion, it should not

113-414 (1990); Seffle v. Parks, 494 U.S. 484, 488 (1990);

Sawyer V. Smith, 110 8. Ct. 2822, 2830 (1990) (“[flederal

habeas corpus serves to ensure that state convictions com-

port with the federal law that was established at the time

the petitioner’s conviction became final”). That separate

limitation on the availability of habeas corpus relief is based

on considerations of finality and proper respect for state

court rulings on constitutional questions. Of course, the

fact that it is ordinarily necessary to show that the claim

was valid when the case was pending on direct review does

not mean that all a habeas petitioner needs to show is

that his claim would have been upheld under the standards

prevailing at that time. If it has since become clear that the

claim is not valid, the prisoner has failed to satisfy the first

requirement for habeas relief—to show that he is currently

being held in violation of the Constitution. Nor is there any

force to the argument, see Butler v. McKellar, 494 U.S. at

422 n.4 (Brennan, J., dissenting), that it is somehow unfair

to deny relief to a defendant who relies on a precedent that

is no longer good law. The two prerequisites of habeas relief

—the present validity of the prisoner’s claim and the validity

of the claim at the time of the trial—serve different purposes

in habeas corpus law. The first is necessary to determine, as

a threshold matter, whether anything that happened at the

prisoner’s trial raises constitutional concerns. The second is

necessary to determine whether, once such concerns have been

identified, considerations of comity and finality dictate that

collateral relief should nonetheless be denied. If, under the

current (and presumably the best) understanding of con-

stitutional principles, there was no flaw in the trial, there is

no reason even to reach the second question—whether the

trial was conducted in accordance with constitutional stand-

ards applicable at the time the prisoner was tried. The fact

that the prisoner must satisfy the second prerequisite does not

somehow make it unfair to require him to satisfy the first.

18

matter to the resolution of this case whether the trial

court would have, or should have, followed the rule

in Collins if that decision had been brought to the

court’s attention. Likewise, it should not matter

whether Lowenfield is viewed as having changed the

law or merely as having applied prior legal principles

in a somewhat different setting. All that matters is

whether counsel’s error resulted in the forfeiture of

a right recognized at the time of the habeas proceed-

ing. It is clear that under Lowenfield, which was

decided while respondent’s petition for habeas review

was before the federal district court, counsel’s conduct

did not result in respondent’s being sentenced in vio-

lation of the Eighth Amendment. Thus, the writ of

habeas corpus should not have been granted.

To grant relief in a case such as this would invert

the proper relationship between direct and collateral

review. If respondent had objected to his sentencing

proceeding and the state courts had upheld the Ar-

kansas sentencing scheme, either in anticipation of

Lowenfield or because Lowenfield had been decided

while the case was on appeal, respondent would not

have been able to argue in this Court that his sentence

should be overturned because at the time of his trial

the Eighth Circuit supported his position. Yet re-

spondent now argues that his collateral attack should

succeed where a direct appeal would have failed. His

argument, reduced to its core, is that he should pre-

vail because the Eighth Circuit agreed with his posi-

tion at the time of his trial. That argument provides

no justification for granting collateral relief.

19

Il. EVEN IF THE DISTRICT COURT WAS CORRECT

TO GRANT THE WRIT, THE STATE IS ENTITLED

TO CONDUCT A NEW SENTENCING HEARING

Although the court of appeals upheld the district

court’s grant of respondent’s habeas petition, it re-

versed the portion of the district court’s order allow-

ing the State to conduct a new sentencing proceeding.

The court of appeals directed the district court to

modify its order “to reduce unconditionally [respond-

ent’s] sentence to life imprisonment without parole.”

The court explained that to resentence respondent

under current law ‘“‘would perpetuate the prejudice

caused by the original sixth amendment violation.”

Pet. App. Al4.,

This is clear error. Following a grant of habeas

relief, it is ordinarily contemplated that the State

may attempt to correct the defects identified by the

habeas court by applying currently valid law. Thus,

a State is permitted to retry or resentence a defend-

ant under contemporary constitutional standards un-

less the original defect goes to the State’s very ability

to charge or try the defendant. See, e.g., Parker v.

Dugger, 111 S. Ct. 731, 740 (1991) (reversing and

remanding to the district court for an order directing

state court to “initiate appropriate proceedings * * *

so that [the defendant’s] death sentence may be re-

considered” in light of the Court’s ruling) ; Hitchcock

v. Dugger, 481 U.S, 393, 399 (1987) (reversing and |

remanding with instructions to grant a writ of habeas

corpus unless the State resentences the defendant in

accordance with its decision’).* Accordingly, Arkansas

would ordinarily be allowed to resentence a defendant,

such as respondent, who has received ineffective assist-

ance of counsel at the sentencing phase, as long as

20

the procedures employed at resentencing are consti-

tutionally valid.

Under current law, it would be entirely proper for

the jury to consider pecuniary gain as an aggravating

circumstance in deciding whether to sentence respond-

ent to death. Respondent’s attorney would therefore

no longer have any ground for objecting to the sub-

mission of that factor to the jury, and the jury could

reimpose the death penalty on that basis. The court

of appeals’ decision to bar a resentencing proceeding

has the bizarre effect of preventing the State from

correcting its “errors,” as identified by the federal

court on habeas review. That remarkable result is

premised on the theory that if the State simply fol-

lows the procedural rule that it applied in the first

place, respondent will be no better off and thus will

not have been afforded an adequate “remedy” for the

violation of his Sixth Amendment rights. The fact

that a remedial order permitting the State to resen-

tence respondent does not require any change in

the original procedure does not show that such an

order would fail to remedy respondent’s “prejudice.”

Rather, it simply confirms that respondent suffered

no prejudice in the first place.

4 This case raises no issue under the Ex Post Facto Clause,

see Dobbert v. Florida, 432 U.S. 282 (1977). That Clause

applies only to statutes, not to rulings of courts addressing

the scope of constitutional rights. Under Arkansas sentenc-

ing procedures, pecuniary gain was a permissible aggravating

circumstance at the time respondent committed his offense,

and it is still a permissible aggravating circumstance today.

The fact that for a period following respondent’s crime the

Eighth Circuit took the view that pecuniary gain could not

be used as an aggravating circumstance in a case such as re-

spondent’s does not give rise to Ex Post Facto concerns.

21

This Court’s decision in United States vy. Morrison,

supra, is instructive here. In that ease, the court of

appeals found that the government had engaged in

improper conduct designed to deprive the defendant

of her right to counsel. This Court reversed, holding

that absent some injury of a constitutional dimension,

it was improper for the court of appeals to order

relief. As this Court explained, “[t]here is no effect

of a constitutional dimension which needs to be purged

to make certain that respondent has been effectively

represented and not unfairly convicted. The Sixth

Amendment violation, if any, accordingly provides no

justification for interfering with the criminal proceed-

ings against respondent Morrison, much less the dras-

tie relief granted by the Court of Appeals.” 449 U.S.

at 366-367. Because respondent in this case, like the

defendant in Morrison, suffered no cognizable preju-

dice, he should not be entitled to any relief, much less

the extraordinary relief of forbidding the State to

resentence him.

22

CONCLUSION

The judgment of the United States Court of Ap-

peals for the Eighth Circuit should be reversed.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

Amy L. WAX

Assistant to the Solicitor General

RICHARD A. FRIEDMAN

Attorney

JULY 1992

W UV. S. GOVERNMENT PRINTING OFFICE. 1992 312324 45522