Amicus Curiae Brief — Lockhart v. Fretwell

No. 91-1393

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

A. L. LOCKHART, Director,

Arkansas Department of Corrections,

Petitioner,

Vs.

BOBBY RAY FRETWELL.

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

—-

KENT S. SCHEIDEGGER*

CHARLES L. HOBSON

Criminal Justice Legal Fdn.

2131 L Street (95816)

Post Office Box 1199

Sacramento, CA 9581?

Telephone: (916) 446-0345

Alttornevs for Amicus Curiae

Criminal Justice Legal Foundation

“Attorney of Record

QUESTION PRESENTED

Is a state defendant “prejudiced,” within the meaning

of Strickland v. Washington, by his attorney’s failure to

make an objection based on a federal circuit precedent

which (1) was wrongly decided, (2) was never accepted in

or binding on the state courts, and (3) has since been

overruled?

TABLE OF CONTENTS

EE ccbidecenasseneecccccccceececs i

EE ccs ececcccececcsccscceacecece iv

Imterest Of amicus Curiae .. 1... cece eens |

Summary of facts and case ................0.0005. 2

EE 6 occctccccccececcesescscess 3

DECREE SEGSECRCSC CS ééccccceccccescesece 4

I

Collins was never the law in Arkansas

UCC AC Cree EeGbaeeeesecccceccccecceces 4

II

Ineffective assistance of counsel claims should be

strictly limited to their purpose .................. 9

i cccbenbnececceccecceccesss 9

DU Sec wheeeeseececcocccacese 10

2. Defense counsel and the state .......... 11

DT creeescecsecesccceccecsesece 13

ill

The Nix v. Whiteside concurrence’s concept of “legally

cognizable prejudice” should be adopted ......... 17

A. Basis of the doctrine: Powell to

eee ee eRe SES esecccccccececs 17

B. Perjury and prejudice ................... 19

C. Kimmelman v. Morrison .......... 5... 21

(iii)

D. Right to assistance v. right to reversal ......

E. Legally cognizable prejudice ..............

Conclusion

“ese eeeeneeeeeeneeeee ee © * © # © #* © *#* © © © © © © ©

Nv

TABLE OF AUTHORITIES

Cases

Ableman v. Booth, 62 U. S. 506,

Se CG See Ce bc as vaudetedseconne 6

Avery v. Alabama, 308 U. S. 444, 84 L. Ed. 377,

ES i8

Blake v. Zant, 513 F. Supp. 772 (S.D. Ga. 1981) ..... 17

Brady v. Maryland, 373 U. S. 83, 10 L. Ed. 2d 215,

Se SED bcc vcececddenctuensuecs 9,24

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

Se EE Su andeecsesdateckexctdee<s 17

Brown v. Mississippi, 297 U. S. 278, 80 L. Ed. 682,

ee ET, 6.00 cb encivencoeseseeeucetes y

Butler v. McKellar, 494 U. S. 407, 108 L. Ed. 2d 347,

ED poductnutasnucthevnin ces 26

Christianson v. Colt Industries, 486 U. S. 800,

100 L. Ed. 2d 811, 108 S. Ct. 2166 (1988) .......... 5

Collins v. Lockhart, 754 F. 2d 258

SE ee ee 3, 4, 9, 25

Commonwealth v. Montanez, 388 Mass. 603,

ccc adenembasedebencseee x

Connally v. General Constr. Co., 269 U. S. 385,

70 L. Ed. 322, 46 S. Ct. 126 (1926) .......... —>

Dewey v. R. J. Reynolds Tobacco Co., 121 N. J. 69,

SE ee eee 7

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

nc ccvcanuusstevewbeceuuues 14

Ferri v. Ackerman, 444 U.S. 193, 62 L. Ed. 2d 355,

EY onc ienicduccdeavewnenanths 12

Fretwell v. Lockhart, 946 F. 2d 571

DP euekenededctesdgdececessees 2, 3, 4, 6, 26

Fretwell v. State, 289 Ark. 91,

Es Cb EE wosccccccecceescceses 2, 25

Georgia v. McCollum, 60 U.S.L.W. 4574

ss chdewhesseodseeccccecetecede 12

Glasser v. United States, 315 U. S. 60, 86 L. Ed. 860,

vn ptbcececevesoneseveesoeved 18

Gomez v. U. S. District Court, 118 L. Ed. 2d 293,

a oe cdi seeteeeesneseees 14

Grigsby v. Mabry, 758 F. 2d 226 (CA8 1985) ......... 9

Head v. State, 253, Ga. 429,

ee i ein cec eet ecaseseutens 8

Hendrickson v. State, 285 Ark. 462,

CR ee ee eee y

Hitchcock v. Dugger, 481 U. S. 393, 95 L. Ed. 2d 347,"

re 23

In re Winship, 397 U. S. 358, 25 L. Ed. 2d 368,

ne vc cccebavaseneesenenens oes 9

Irvin v. Dowd, 366 U. S. 717, 6 L. Ed. 2d 751,

Ee EE ook ee dcukancremveeeseeuns 2

Kimmelman v. Morrison, 477 U. S. 365, 91 L. Ed. 2d 305,

BOG S. Ce. 2576 (1SGS) .. 2 ccc eeeees 21, 22, 23, 25

Lindsey v. Smith, 820 F. 2d 1137 (CA11 1987) ...... 15

Lockhart v. McCree, 476 U. S. 162, 90 L. Ed. 2d 137,

Ec cnccncaveceuuasesssevens 9

Lowenfield v. Phelps, 484 U. S. 231, 98 L. Ed. 2d 568,

108 S. Ct. 546 (1988) ..... Stich praineiaiansineas aiceaieaia ae 25

vii

Lugar v. Edmondson Oil Co., 457 U. S. 922,

78 L. Ed. 2d 482, 102 S. Ct. 2744 (1982) .......... 11

Mast, Foos & Co. v. Stover Mfg. Co., 177 U. S. 485,

44 L. Ed. 856, 20 S. Ct. 708 (1900) ............... 5

McCleskey v. Zant, 113 L. Ed. 2d 517,

ED dedavcunsebihestiectccun’ 16

Murray v. Giarratano, 492 U.S. 1, 106 L. Ed. 2d 1,

SPER PEED eucdvcducuceceectccesccs 14

Nix v. Whiteside, 475 U. S. 157, 89 L. Ed. 2d 123,

106 S. Ct. 988 (1986) .............. 19, 20, 24, 25, 26

People v. Bradley, 1 Cal. 3d 80,

Ga ie Ae a GED co ccdcccccccccccccceccs 8

People v. Del Veccio, 129 III. 2d 263,

Fee Oe ED Hk nedccboccecccescceese 7

Perry v. Lockhart, 871 F. 2d 1384 (CA8 1989) ......... 4

Polk County v. Dodson, 454 U. S. 312, 70 L. Ed. 2d 509,

Py EES concccourssepsneccececs 11, 12

Posados v. Warner, Barnes & Co., 279 U. S. 340, 73

L. Bd. 729, 49S. Ce. S53 (1DZD) .. cc ccccccccecss 6

Powell v. Alabama, 287 U. S. 45, 77 L. Ed. 158,

ED scicdviedeusneciwennsbees 18, 22

Price v. Johnston, 334 U. S. 266, 92 L. Ed. 1356,

i «testeeueneseeeneaeeeses ss 6

Smith v. Murray, 477 U. S. 527, 91 L. Ed. 2d 434,

ED oe cite eh cteddeleetndons 15

South Salina Street, Inc. v. Syracuse, 68 N. Y. 2d 474,

win castvesedscvcereevses 7

State v. Barefield, 110 Wash. 2d 728,

Co re 7

Vili

State v. Dwyer, 332 So. 2d 333 (Fla. 1976) ........... 8

State v. Moyle, 299 Or. 691, 705 P. 2d 740 (1985) ..... 7

Stone v. Powell, 428 U. S. 465, 49 L. Ed. 2d 1067,

ee ee ED dktek dsc kudesidekesiaeens 21

Strickland v. Washington, 466 U. S. 668, 80 L. Ed. 2d 674,

104 S. Ct. 2052 (1984) ....... 10, 17, 18, 19, 21, 23, 24

Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd.,

460 U.S. 533, 75 L. Ed. 2d 260,

ES ee Pere 5

United States v. Agurs, 427 U. S. 97, 49 L. Ed. 2d 342,

I a he a al 19

United States v. Cronic, 466 U. S. 648, 80 L. Ed. 2d 657,

ee EE cvcesavisddeasindieonwds 15

United States v. Valenzuela-Bernal, 458 U. S. 858,

73 L. Ed. 2d 1193, 102 S. Ct. 3440 (1982) ......... 19

Walton v. Arizona, 111 L. Ed. 2d S11,

es CE chavececceucubilecddcceade vy)

United States Constitution

1B 0 a ee 10

United States Statutes

Be ls Oe ee I onib dc cccnncedcc’soseees 14

EERE ean eee nN eee en 6

Re ea ee ee ea 6

Rules of Court

EI UNE « cuccsectncicdevbsceetes 8

ix

Treatises

H. Black, Law of Judicial Precedents (1912) ........ 5,7

W. LaFave, Search and Seizure (2d ed. 1987). ....... 23

R. Mann & F. Smith, Legal Malpractice (3d ed. 1989). 13

J. Moore, Moore's Federal Practice (1992) ....... 5,6,7

J. Nowak, R. Rotunda & J. Young, Constitutional Law

CPG TEED ccccccccccncccccdsnaseeecescece 10

B. Witkin, California Procedure (3d ed. 1985) ........ 7

C. Wolfram, Modern Legal Ethics (1986) ...... 11, 13, 14

Miscellaneous

ABA, Standards for Criminal Justice,

Standard 4-1.1(b) (2d ed. 1986).............. 11, 12

Comment, Effective Assistance of Counsel: The Sixth

Amendment and the Fair Trial Guarantee,

Fe ls Gy ee SS PEED Sciccvccvccccccess 13

K. Scheidegger, Rethinking Habeas Corpus (1989),

reprinted in Habeas Corpus Issues: Hearings Before

the Subcomm. on Civil and Constitutional Rights of the

House Comm. on the Judiciary, 102d Cong.,

Ist Sess. 212 (1991) ....... sdevesseesseceusss 15

Traynor, Limits of Judicial Creativity,

29 Hastings L. J. 1025 (1978). ...........0 ccc eee, 5

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

A. L. LOCKHART, Director,

Arkansas Department of Corrections,

Petitioner,

VS.

BOBBY RAY FRETWELL,

Respondent.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a

nonprofit California corporation organized to participate

in litigation relating to the criminal justice system as it af-

fects the public interest. CJLF seeks to bring the constitu-

tional protections of the accused into balance with the

rights of the victims and of society to rapid, efficient, and

reliable determination of guilt and swift execution of

punishment.

The present case involves the contention that the

failure of trial counsel in an Arkansas court to raise a

claim based upon Eighth Circuit precedent constituted

ineffective assistance of counsel, in spite of the fact that

the Eighth Circuit precedent had subsequently been

1. CJLF has received written consent from both parties to file this brief.

Nw

overruled. This ruling, if affirmed, would permanently

exempt a convicted murderer from full punishment, even

though he is guilty of a capital offense and a properly

instructed jury has found the death penalty to be an

appropriate punishment. Such an injustice is contrary to

the rights of victims and society which CJLF was formed

to advance. CJLF therefore has an interest in the case.

SUMMARY OF FACTS AND CASE

Petitioner entered the home of Sherman Sullins and

robbed him of his money at gunpoint. He then struck Mr.

Sullins on the head with his gun. When this failed to kill

Sullins, petitioner placed the barrel of his gun to Sullins’

temple and shot and killed him. Petition for Writ of

Certiorari (“Pet. Cert.”) Appendix A-22 (District Court

memorandum opinion).

Petitioner was convicted of murdering Sullins in the

course of a robbery. At the sentencing phase, the court

instructed the jury on two aggravating circumstances: that

the crime was committed for the purpose of avoiding

arrest and that it was committed for the purpose of

pecuniary gain. Trial counsel failed to object to the

pecuniary gain instruction. Six months earlier the Eighth

Circuit had held that it was unconstitutional to use

pecuniary gain as an aggravating circumstance in robbery-

murder cases. Pet. Cert. 4-5.

Petitioner's conviction and death sentence were

affirmed by the Arkansas Supreme Court. Fretwell v.

State, 289 Ark. 91, 708 S. W. 2d 630 (1986). The Eighth

Circuit granted habeas relief. It found that trial counsel's

failure to attack the pecuniary gain instruction based on

the prior Eighth Circuit precedent was ineffective assis-

tance of counsel in spite of the fact that this Eighth

Circuit precedent had been effectively overruled by the

Supreme Court after petitioner’s trial. See Fretwell v.

Lockhart, 946 F. 2d 571 (CA8 1991). The Eighth Circuit

Ee ae -

also ordered the District Court “to reduce unconditionally

Fretwell’s sentence to life imprisonment without parole.”

Id., at 578.

SUMMARY OF ARGUMENT

Collins v. Lockhart, 754 F. 2d 258 (CA8 1985) was

never the law in Arkansas state courts. The precedents of

the lower federal courts are not binding on state courts.

Therefore, it is incorrect to presume that Arkansas courts

would have been obligated to uphold a Collins objection

had it been made.

Ineffective assistance of counsel claims should be

strictly limited to their purpose. These claims penalize the

state even when it does nothing wrong. The person

responsible for the wrong, defense counsel, is the tradi-

tional opponent of the state over whom it may exert little

if any control.

There is also a real danger of spurious ineffective

assistance claims. The institutional constraints that limit

unfounded malpractice claims in civil cases are largely

absent from ineffective assistance attacks. This is particu-

larly true in capital cases, where nearly every capital

conviction spawns an ineffective assistance claim.

The prejudice requirement for ineffective assistance

should be limited to errors undermining confidence in the

result of the trial. Both the right to counsel and the

subsidiary right to effective assistance of counsel are

grounded in the notion that defense counsel is needed to

insure the reliability and justice of criminal trials. There

is no right to an improper acquittal.

2. The court’s authority to issue this order is highly doubtful. See /rum v.

Dowd, 366 U.S. 717, 728 (1961). It is unclear whether the state has

sought review of this holding. See Pet. Cert. 6-7, 17. That issue need

not be addressed, since the predicate Sixth Amendment holding is clearly

erroneous.

Failure to raise an incorrect decision by the Eighth

Circuit did not prejudice Fretwell’s trial. Just as there is

no right to a lawless factfinder under Strickland, so there

is no right to an erroneous decision of law. Just as there

is no right to false evidence under Nix v. Whiteside, so

there is no right to false law.

Fretwell has lost nothing to which he was entitled. He

has suffered no legally cognizable prejudice.

ARGUMENT

1. Collins was never the law in Arkansas state courts.

In addressing the prejudice component of Fretwell’s

claim, the Eighth Circuit committed a breathtaking error

regarding the relations between federal and state courts.

The court held that “since state courts are bound by the

Supremacy Clause to obey federal constitutional law, we

conclude that a reasonable state trial court would have

sustained an objection based on Collins’ had Fretwell’s at-

torney made one.” Fretwell v. Lockhart, 946 F. 2d 571, 577

(CA8 1991). The court then goes on to hold that Collins

was “good law” at the time of Fretwell’s trial in state court

and that he was therefore “entitled to its benefits.” Jd., at

578 (emphasis added).

It is evident from these statements that the Eighth

Circuit believes that its precedents are binding on state

courts within the circuit to the same extent as they are

binding on federal district courts. The contrary rule is

almost universally recognized by courts and commentators,

although there does not appear to be any direct statement

by this Court on the precise point. Clarifying the status of

circuit precedents, i.e. whether they are binding or merely

persuasive, is necessary for the daily operation of state

3. Collins v. Lockhart, 754 F. 2d 258 (CA8 1985), overruled in Perry v.

Lockhart, 871 F. 2d 1384, 1393 (CA8 1989),

Oe

courts where these precedents are routinely cited. There-

fore, amicus respectfully requests that the Court make a

clear statement of the law on this point.

The doctrine of stare decisis has “spawned a vast

literature.” 1B J. Moore, Moore’s Federal Practice % 4021},

at 5S, n. 1 (1992) (cited below as “Moore”). Most of that

literature, however, deals with the question of when courts

should adhere to their own precedents and when they

should overrule them. See, e.g., Traynor, Limits of Judicial

Creativity, 29 Hastings L. J. 1025 (1978).

Precedents established by other courts have received

far less attention, no doubt because the rules are quite

simple. A precedent established by a “higher” court is

mandatory. Only the court of last resort can overrule its

own precedent, and until it does that precedent is binding

on all lower courts. See, e.g., Thurston Motor Lines, Inc.

v. Jordan K. Rand, Lid., 460 U. S. 533, 535 (1983). On the

other hand, it is equally well established that the decision

of a coordinate court is not binding precedent. See

Moore, supra, at 14-18: H. Black, Law of Judicial Prece-

dents 117 (1912). Thus, a decision of one federal circuit

is not binding on another circuit as stare decisis when the

same question of law is presented in a different case.

Mast, Foos & Co. v. Stover Mfg. Co., 177 U.S. 485, 488

(1900).*

The question of what is a “higher” court for this

purpose is one that rarely arises. One would think that

the point is so well settled that no discussion is necessary,

but the Eighth Circuit’s statements in this case make

discussion necessary. According to Professor Moore,

courts are obligated to follow the precedents established

by courts to which they “owe obedience,” see Moore,

4. Prior adjudication by a coordinate court in the same case is entirely

different. See Christianson vy. Colt Industries, 486 U.S. 800, 816 (1988)

(law of the case); Moore, supra, 4 0.401, at 3-5 (distinguishing stare

decisis from res judicata and related doctrines).

supra, at 12, but this is merely a way of stating the conclu-

sion. The rule seems to be that one court owes obedience

to another where the latter has jurisdiction to reverse the

judgment of the former directly and not collaterally.

The power to entertain a collateral attack on a judg-

ment does not render a court's decisions binding prece-

dent on the court which entered the judgment. In Price v.

Johnston, 334 U. S. 266, 269-270, 286 (1948), for example,

a federal district court in California had the power to

entertain a collateral attack on a judgment of a federal

district court in Michigan, and was reversed for not doing

so. All of the district courts had the power to entertain

such attacks on each other's judgments at the time.” Yet

this power did not make every district’s precedents binding

in every other district.

The Court of Appeals in the present case asserted the

Supremacy Clause as the basis of its claim to make

binding precedent for Arkansas courts. 946 F. 2d, at 577.

This is a red herring. A state court which declines to

follow circuit precedent is not asserting state law over

federal law; it is merely disagreeing over what the federal

law actually is. That question is not settled until the court

of last resort has spoken. See Posados v. Warner, Barnes

& Co., 279 U. S. 340, 345 (1929).

The Supremacy Clause does make a federal court's

order prevail over a state court’s order when both courts

happen to have jurisdiction of the same subject matter.

Thus in Ableman v. Booth, 62 U. S. 506, 523 (1859), a

state court was not permitted to issue habeas corpus to

free a federal prisoner, while federal courts do have the

power to free state prisoners, 28 U.S.C. § 2254. As

noted earlier, however, this collateral review power does

not render one court’s decisions mandatory precedent in

another court.

5. This was before the enactment of 28 U.S. C. § 2255.

Perhaps the clearest statement of the rule is that given

by Professor Moore:

“In matters of federal law, of course, all the state

courts owe obedience to the decisions of the

Supreme Court of the United States [footnote

omitted], but the decisions of the courts of appeals

in the circuit embracing the state, or those of the

district court of the district in which the trial takes

place do not govern under the doctrine of stare

decisis.”

“* In cases in which federal law is applied, and the

jurisdiction in federal and state courts is concur-

rent, the state court must follow the federal law,

and the decisions of the inferior federal court are,

naturally, persuasive authority on issues as yet

unresolved by the Supreme Court. In such cases,

however, the state courts owe no special obedience

to the decisions of the particular circuit in which

the state is located, or in the strict sense, to the

decisions of the federal inferior courts as a class,

and any error they may make in their interpreta-

tion of the federal law must be corrected by the

Supreme Court. See Amalgamated Clothing

Workers of America v. Richman Brothers (1955)

348 U.S. 511, 75 S. Ct. 452, 99 L. Ed. 600.” IB

Moore, supra, at 23.

This rule has been established for a long time. It was

hornbook law 80 years ago. Black, supra, at 372; see also

9 B. Witkin, California Procedure § 780, at 751 (3d ed.

1985). It is also the rule followed by the majority of state

courts. See, e.g, Dewevv. R. J Reynolds Tobacco Co., 121

N. J. 69, 577 A. 2d 1239, 1244-1245 (1990); People v. Del

veccio, 129 Ill. 2d 263, 544 N. E. 2d 312, 327 (1989); State

v. Barefield, 110 Wash. 2d 728, 756 P 2d 731, 733, n. 2

(1988); South Salina Sireet, Inc. v. Syracuse, 68 N. Y. 2d

474, 503 N. E. 2d 63, 70-71 (1986), State v. Moyle, 299 Or.

691, 705 P. 2d 740, 750 (1985); Head v. State, 253 Ga. 429,

322 S. E. 2d 228, 231 (1984); Commonwealth v. Monianez,

388 Mass. 603, 447 N. E. 2d 660, 661-662 (1983); State v.

Dwyer, 332 So. 2d 333, 335 (Fla. 1976); People v. Bradley,

| Cal. 3d 80, 86, 460 P. 2d 129, 132 (1969).

The rules and practice of this Court further confirm

that state courts have the power and the duty to make

independent judgments of federal law and not mechanical-

ly follow the circuits. Rule 10.1 lists some of the reasons

guiding this Court's decision on whether to grant certiora-

ri, including the following (emphasis added):

“(a) When a United States court of appeals has

rendered a decision in conflict with the decision of

another United States court of appeals on the same

matter; or has decided a federal question in a way in

conflict with a state court of last resort, or has so far

departed from the accepted and usual course of

judicial proceedings, or sanctioned such a depar-

ture by a lower court, as to call for an exercise of

this Court’s power of supervision.

“(b) When a state court of last resort has decided a

federal question in a way that conflicts with the deci-

sion of another state court of last resort or of a

United States court of appeals.”

If state courts were bound by the Supremacy Clause to

follow the lower federal courts, the italicized portions of

this rule would not be needed. A federal decision con-

flicting with a state decision would be controlling, the state

decision would no longer be good law, and there would be

no need for this Court to resolve the conflict. Conversely,

a State court refusal to follow federal circuit precedent

would not require hearing the case on the merits, but only

summary reversal with instruction to follow binding

precedent.

The rule reads the way it does precisely because circuit

precedent is not binding on the states. When a conflict

arises, this Court grants certiorari to resolve the conflict,

exactly the same as it would if two federal circuits were in

conflict. See, e.g, Walton v. Arizona, 111 L. Ed. 2d 511,

524, 110 S. Ct. 3047, 3054 (1990). In such cases, it is not

unusual for this Court to decide that the state court was

correct. See, e.g., ibid.

The Arkansas Supreme Court evidently takes the view

that it is not bound to follow the Eighth Circuit. In

Hendrickson v. State, 285 Ark. 462, 688 S. W. 2d 295, 297

(1985), for example, the state court refused to follow

Grigsby v. Mabry, 758 F. 2d 226 (CA8 1985). The Arkan-

sas Supreme Court was entirely correct in taking this

position. Grigsby was later reversed in a companion case,

Lockhant v. McCree, 476 U. S. 162, 165 (1986).

At the time of Fretwell’s trial, Collins v. Lockhart, 754

F. 2d 258 (CA8 1985) was binding precedent only in the

federal courts of the Eighth Circuit. Arkansas state courts

were no more obligated to follow it than were the other

federal circuits. The Eighth Circuit’s conclusion that

Fretwell necessarily would have been sentenced to life in

prison if his lawyer had made a Collins objection is

therefore wrong. Even more important, however, is the

question of whether this possible loss of a wrongful escape

from a deserved punishment is “prejudice” justifying the

overturning of a final judgment.

Il. Ineffective assistance of counsel claims should be

strictly limited to their purpose.

A. Unique Nature.

Claims of ineffective assistance of counsel are unique

to constitutional criminal procedure. Every other constitu-

tional error is the consequence of some state wrongdoing,

such as passing a vague law, see Connally v. General

Constr. Co., 269 U. S. 385 (1926); coercing a confession,

see Brown v. Mississippi, 297 U.S. 278 (1936), giving

improper jury instructions, see /n re Winship, 397 VU. S.

358 (1970); or withholding exculpatory evidence, see Brady

10

v. Maryland, 373 U.S. 83 (1963). For an ineffective

assistance of counsel claim, however, a state does nothing

wrong but still sees its conviction overturned.

The passive role the state must play regarding ineffec-

tive assistance of counsel places a duty on the courts to

strictly limit this claim to its core purpose, assuring that

counsel's representation does not “so undermine[| the

proper functioning of the adversarial process that the trial

cannot be relied on as having produced a just result.”

Strickland v. Washington, 466 U. S. 668, 686 (1984). If

ineffective assistance claims are not strictly limited, then

the integrity of the criminal justice system will be threat-

ened as the state is forced to defend its convictions against

conduct over which it has neither responsibility nor

control.

1. State action.

With one exception’ the federal Constitution may be

invoked only to prohibit state action. See J. Nowak,

R. Rotunda & J. Young, Constitutional Law § 12.1, at 421

(3d ed. 1986). In the typical constitutional case, the state

action question Is not controversial, with state action being

readily apparent. See ibid. In those cases where it is at

issue, where someone attempts to attribute the actions of

an individual to the state, caution is prudent.

“Careful adherence to the ‘state action’ require-

ment preserves an area of individual freedom by

limiting the reach of federal law and federal judi-

cial power. Ji also avoids imposing on the State, its

agencies or officials, responsibility for conduct for

which they cannot fairly be blamed. A major conse-

quence is to require the courts to respect the limits

of their own power as directed against state gov-

ernments and private interests. Whether this is

good or bad policy, it is a fundamental fact of our

6. See U.S. Const. amend. XIII.

11

political order.” Lugar v. Edmondson Oil Co., 457

U. S. 922, 936-937 (1982) (emphasis added).

Thus state action will be found only where an indivi-

dual’s actions can “be fairly attributable to the State.” /d.,

at 937 (emphasis added). In the standard criminal case

this is a given. There are no more evident state actors

than police, prosecutors, judges, or legislatures, the

sources of most constitutional conflict in criminal law.

Ineffective assistance of counsel, however, is different. Of

all the claims made by a criminal defendant this one is the

most difficult to attribute to the state because the culprit,

the incompetent attorney, is immune from state supervi-

sion. Defense counsel is, if anything, an opponent of the

State.

2. Defense counsel and the state.

Defense counsel is the paid opponent of the state.

“The basic duty the lawyer for the accused owes to the

administration of justice is to serve as the accused's

counselor and advocate with courage, devotion, and to the

utmost of his or her learning and ability and according to

law.” ABA, Standards for Criminal Justice, Standard

4-1.1(b) (2d ed. 1986). If counsel is privately employed,

the state can exert no more influence over him than it can

over any other private attorney.

“{ T]he clearly articulated judicial view is that the

American criminal defense lawyer plays a vital role

in the administration of justice. A lawyer function-

ing in that role owes loyalty to his or her client

alone.” C. Wolfram, Modern Legal Ethics § 10.5, at

588-589 (1986) (footnote omitted).

In Polk County v. Dodson, 454 U.S. 312 (1981), this

duty of loyalty was central to the holding that a public

defender’s representation of a client did not come within

color of state law. Although public defenders were

employees of the state, this did not alter the traditional

attorney-client relationship. “ ‘Once a lawyer has under-

taken the representation of an accused, the duties and

obligations are the same whether the lawyer is privately

retained, appointed, or serving in a legal aid or defender

program.” ” /d., at 318 (quoting ABA, Standards for

Criminal Justice, Standard 4-3.9 (2d ed. 1986)).

The fact that defense counsel is considered an officer

of the court did not change the analysis. Our adversarial

system requires defense counsel to oppose the state.

“The system assumes that adversarial testing will

ultimately advance the public interest in truth and

fairness. But it posits that a defense lawyer best

serves the public not by acting on behalf of the

State or in concert with it, but rather by advancing

‘the undivided interests of his client.’ ” Jd., at 318-

319 (quoting Ferri v. Ackerman, 444 U. S. 193, 204

(1979)).

Any effort by the state to control the public defender's

representation of the accused runs into the Sixth Amend-

ment’s guarantee of counsel. “Implicit in the concept of

a ‘guiding hand’ is the assumption that counsel will be free

of state control. There can be no fair trial unless the

accused receives the services of an effective and indepen-

dent advocate.” /d., at 322.’

When a conviction is reversed due to ineffective

assistance of counsel, the state is being penalized even

though it did nothing wrong. Not only is the state an

innocent bystander, it is also difficult for the state to spot

incompetence until it is too late. “Many aspects of

[defense] counsel’s performance either occur outside the

trial court’s notice or reasonably appear to be, ' ough they

are not in fact, competent. Thus, the existence of incom-

7. The precedential value of Polk County is not diminished by Georgia v.

McCollum, 60 U.S.L.W. 4574 (June 18, 1992). That case deals with the

unique circumstance of defense counsel using a state-granted power to

discriminate against a third person in the selection of a governmental

body. /d., at 4577-4578.

13

petence does not necessarily imply fault on the part of the

state.” Comment, Effective Assistance of Counsel: The

Sith Amendment and the Fair Trial Guarantee, 50 U. Chi.

L. Rev. 1380, 1397 (1983).

A successful ineffective assistance of counsel! claim

penalizes the state for an act over which it has neither

control nor responsibility. Thus, the state acts as an

insurer against a criminal defendant's risk of incompetent

counsel, spreading the risk from defendants to the people

through reversed convictions.

But criminal convictions are not accidents to be

insured against, and the Sixth Amendment is not an

insurance policy. While it may make sense to reverse

convictions for some of counsel's errors, the state cannot

be required to assure an ideal trial. Ineffective assistance

claims already place a burden on the fairness of the

criminal justice system. If counsel’s error does not

undermine confidence in the verdict, then that error

should not be a ground for reversal. Review of counsel's

performance should not be a tool to free the guilty, but an

assurance of the fundamental justice of our legal system.

B. Crying Wolf.

Every litigation involves at least one winner and one

loser. An unfortunate side effect of this fact is the all too

human tendency of a losing litigant to place responsibility

for the defeat on his attorney. See R. Mann & F. Smith,

Legal Malpractice § 1.1, at 7 (3d ed. 1989). This leads to

the risk of spurious malpractice claims. In civil law there

is some protection from these claims. The standard

method for an aggrieved client to remedy his attorney's

civil malpractice is through a civil suit against the ineffec-

tive counsel. While many losing litigants may feel that

their attorneys were substandard, the civil litigation

process will screen out most spurious claims.

In addition to being ethically bound not to pursue

meritless actions, see C. Wolfram, Modern Legal Ethics §

14

_—iams

basis will not accept employment to prosecute a malprac-

tice claim unless success is at least feasible. See id., at

528. Even if an attorney is paid in some other way, there

is ample incentive to take only feasible malpractice claims.

An unsuccessful malpractice claim can itself be the basis

of a subsequent malpractice claim. /d., § 5.6.1., at 207, n.

38. Finally, the aggrieved client, if sufficiently rational, is

likely to pay heed to warnings that a malpractice claim 1s

not feasible and drop the action. Litigation ts an unpleas-

ant and expensive experience and few will voluntarily

undergo it if success is unlikely.

These institutional constraints are largely missing from

ineffective assistance of counsel attacks. A convicted

criminal who cannot afford appellate counsel is entitled to

appointed counsel for his first appeal as of right. Douglas

vy. California, 372 U. S. 353, 357 (1963). While no such

constitutional right exists for habeas corpus, Murray v

Giarratano, 492 U.S. 1 (1989), Congress has provided

funding for habeas corpus counsel for death row inmates.

21 U.S. C. § 848(q)(4)(B).

As there is little if any economic disincentive on a

convicted criminal’s ability to make a challenge to his

conviction, criminal defense attorneys are particularly

prone to allegations of incompetence through ineffective

assistance of counsel claims. This is especially true in

death penalty litigation. Death row inmates have a

particularly keen interest in seeing their convictions over-

turned and have free access to attorneys to pursue federal

habeas corpus claims. These problems are aggravated by

the existence of a body of opponents to the death penalty

who will do virtually anything to prevent executions. See,

e.g., Gomez v. U. S. District Court, 118 L. Ed. 2d 293, 112

S. Ct. 1652 (1992). This can only create a hothouse

15

environment for ineffective assistance of counsel claims in

capital cases.

This climate is supplemented by the complexity of

death penalty law. Few areas of the law are as complicat-

ed as the death penalty. The frailties of human nature

make mistakes by defense counsel inevitable in such a

climate. Yet no one is entitled to a perfect defense.

“The right to the effective assistance of counsel is

thus the right of the accused to require the prosec-

ution’s case to survive the crucible of meaningful

adversarial testing. When a true adversarial crimi-

nal trial has been conducted—even if defense

counsel may have made demonstrable errors—the

kind of testing envisioned by the Sixth Amendment

has occurred.” United States v. Cronic, 466 VU. S.

648, 656 (1984) (emphasis added) (footnotes

omitted).

Yet in capital litigation, convicted defendants are

attempting to make perfection the standard of competence

in order to thwart execution of their sentence. Thus in

one habeas attack on a capital conviction

“In support of this contention, [that counsel was

ineffective] an experienced capital defense attorney

testified in appellant’s behalf that effective assis-

tance of counse! in a capital case requires raising

and preserving every colorable claim at trial and on

appeal. Thus according to this attorney, the failure

of appellant’s counsel to raise and preserve all

colorable claims constituted ineffective assistance

of counsel.” Lindsey v. Smith, 820 F. 2d 1137, 1144

(CA11 1987) (emphasis added).

This Court has, of course, held expressly to the contrary,

Smith v. Murray, 477 U.S. 527, 536 (1986), but the

attitude persists.

Thus in capital cases, ineffective assistance of counsel

claims have become the rule rather than the exception. In

a study of federal habeas corpus, K. Scheidegger, Rethink-

16

ing Habeas Corpus (1989), reprinted in Habeas Corpus

Issues: Hearings Before the Subcomm. on Civil and Consti-

tutional Rights of the House Comm. on the Judiciary, 102d

Cong., Ist Sess. 212 (1991), amicus developed a li of

capital habeas cases decided by the Eleventh Circuit

between 1986 and 1989. The study examined decisions

involving 70 different litigants seeking habeas relief from

their death sentences. The cases are listed in the Appen-

dix. |

At least’ 56 of the 70 petitioners made ineffective

assistance counsel claims at some point on federal habeas

corpus. Of these 56 claimants, 7 were successful in the

Eleventh Circuit with their ineffective assistance claims, 44

had their claims rejected, and another 5 did not have a

final decision on their claims. Thus, at least four-fifths of

the capital petitioners made ineffectiveness claims, and

only one-eighth of the claims were found to have merit.

One problem with this flood of meritless claims is that

it delays the execution of judgment in capital cases.

Habeas claims, even if spurious, require time to resolve.

This is particularly true of ineffective assistance claims,

which usually involve extensive discovery outside the trial

record and can involve long habeas hearings at the district

court level. Such meritless delay withers respect for the

criminal justice system. See McCleskey v. Zant, 113

L. Ed. 2d 517, 543, 111 S. Ct. 1454, 1466 (1991).

An equally disturbing effect is the possible erosion of

the quality of counsel in capital cases. Defending some-

one accused of capital murder is not an easy task. The

cases are complex, failure is frequent, the pay is not

lucrative, and clients are almost always reprehensible.

Yet, as the Eleventh Circuit’s experience demonstrates,

the vast majority of capital defendants receive adequate

representation. If, however, even adequate representation

8. We say “at least” because some may have made the claims in unreported

decisions.

17

will bring about a claim of ineffective assistance of

counsel, then many attorneys who would otherwise take

capital cases may withdraw from the field. “[T}he raising

of such unfounded charges [of ineffective assistance] must

have a significant ‘chilling effect’ on the willingness of

experienced attorneys . . . to undertake the defense of

capital cases. Petitioner's attorneys here might do well to

reconsider their apparent policy of routinely attacking the

performance of counsel in light of this fact.” Blake v.

Zant, 513 F. Supp. 772, 802, n. 13 (S.D. Ga. 1981); accord

Strickland, supra, 466 U. S., at 690.

Finally, the barrage of meritless claims endangers the

relatively few worthy ineffective assistance claims. “It

must prejudice the occasional meritorious application to

be buried in a flood of worthless ones.” Brown v. Allen

344 U. S. 443, 537 (1953) (Jackson, J., concurring in the

result).

Ineffective assistance litigation is a heavy burden on

the criminal justice system. This burden is a necessary evil

where the reliability of the result is in grave doubt. It

becomes less necessary and more evil as the question

moves farther away from reliability. Despite the Court's

contrary intent, Strickland did “encourage the proliferation

of ineffectiveness challenges.” 466 U. S., at 690. To place

some limits on this proliferation, the prejudice component

of Strickland needs to be precisely and narrowly defined.

lif. The Nix v. Whiteside concurrence’s concept of

“legally cognizable prejudice” should be adopted.

A. Basis of the Doctrine: Powell to Strickland.

From the very beginning, the right to effective assis-

tance of counsel has been based on the unreliability of

trial without counsel. A lay defendant

“lacks both the skill and knowledge adequately to

prepare his defense, even though he have a perfect

one. He requires the guiding hand of counsel at

18

every step in the proceedings against him. Without

it, though he be not guilty, he faces the danger of

conviction because he does not know how to

establish his innocence.” Powell v. Alabama, 287

U.S. 45, 69 (1932) (emphasis added).

In Powell, counsel were not appointed until the

morning of the trial. /d., at 56. Under the circumstances,

this was a denial of due process of law, because the timing

of the appointment “preclude/d] the giving of effective aid

in the preparation and trial of the case.” /d., at 71. The

Court’s discussion of the circumstances of the case implies

a well-founded concern as to whether the defendants were

actually guilty. /d., at 50-52.

A precursor of the Sirickland prejudice requirement

can be seen in Avery v. Alabama, 308 U. S. 444 (1940). In

Avery, counsel were appointed three days before trial. /d.,

at 447. In affirming, the Court noted “the absence of any

indication, on the motion and hearing for new trial, that

they could have done more had additional time been

ranted.” Jd., at 452: ef. Strickland v. Washington, 466

U. S. 668, 699-700 (1984).

The most explicit statement about a real possibility of

innocence came in Glasser v. United States, 315 U. S. 60,

67 (1942):

“In all cases the constitutional safeguards are to be

jealously preserved for the benefit of the accused,

but especially is this true where the scales of justice

may be delicately poised between guilt and inno-

cence. Then error, which under some circumstanc-

es would not be ground for reversal, cannot be

brushed aside as immaterial, since there is a real

chance that it might have provided the slight

impetus which swung the scales toward guilt.”

In announcing the prejudice element of an ineffective

assistance claim, Strickland brought to the surface and

made explicit what had been an implicit undercurrent in

Powell, Avery, and Glasser. Because the right to effective

19

assistance is a component of a right to a fair trial, ipeffec-

tive assistance is a ground for reversal only when it

renders the trial unfair. “This requires showing that

counsel’s errors were so serious as to deprive the defen-

dant of a fair trial, a trial whose result is reliable.” Strick-

land v. Washington, supra, 466 U. S., at 687 (emphasis

added).

Washington’s claim was that certain evidence had been

omitted from the penalty phase of his trial. Jd., at 700.

With this evidentiary issue in mind, the Court explained its

“reliable result” principle by borrowing a standard from

other rules dealing with omitted evidence. “The defen-

dant must show that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” See id., at 694

(citing United States v. Agurs, 427 U. S. 97, 104 (1976)

(information not disclosed by prosecution); United States

v. Valenzuela-Bernal, 458 U.S. 858, 872-874 (1982)

(deported witness)).

The Strickland Court made clear, however, that this

test was a guide and not a mechanical rule. “[{T]he

ultimate focus of inquiry must be on the fundamental

fairness of the proceeding whose result is being challenged

...+ Id., at 696. The keys are reliability and confidence

that the result is just. See ibid. In a different context, the

evidence-oriented test of reasonable probability of a

different result may not be the appropriate one for

implementing the underlying principle.

B. Perjury and Prejudice.

A radically different context was not long in coming.

The testimony that Washington claimed should have been

presented was presumably truthful, if weak. Emanuel

Whiteside had an entirely different strategy in mind. He

wanted to lie. Nix v. Whiteside, 475 U. S. 157, 161 (1986).

His attorney refused to let him. /bid. The Eighth Circuit

held that this was ineffective assistance. Id., at 163.

20

The Nix majority devotes most of the opinion to the

performance component of the Strickland test, and its

discussion of the prejudice prong is consequently brief.

“Even if we were to assume that the jury might have

believed his perjury, it does not follow that Whiteside was

prejudiced.” /d., at 175-176. Unfortunately, instead of

explaining why a reasonable probability of a different

result is insufficient to establish prejudice in this context,

the majority proceeds directly to distinguishing the cases

of presumed prejudice, for which no showing Is required.

Id., at 176.

Justice Blackmun’s concurring opinion is more helpful.

By denying the claim solely on the prejudice ground, the

concurrence effectively holds that Whiteside had no claim,

even if his lawyer's conduct fell below Sixth Amendment

minimums. To reach this result, the concurrence returns

to the underlying principle of the Strickland prejudice

component. “The touchstone of a claim of prejudice is an

allegation that counsel’s behavior did something to

deprive the defendant of a fair trial, a trial whose result is

reliable.’ ” Id., at 184 (quoting Strickland). Since with-

holding false evidence does not detract from reliability,

Whiteside had no claim. /d., at 185. This is true, Justice

Blackmun makes quite clear, even if the false evidence

might have changed the result. /d., at 186.

Thus, it is not a universal rule that any error which had

a reasonable probability of changing the result satisfies the

prejudice prong. The Court unanimously rejected White-

side’s prejudice claim even assuming the result would have

been different. /d., at 175-176 (majority), id. at 186-187

(concurrence). Strickland laid down the different-outcome

test in the context of the facts of that case, but the test

should not be applied where it does not implement the

underlying principle of reliability.

21

C. Kimmelman v. Morrison.

The decision in Kimmelman v. Morrison, 477 U. S. 365

(1986) must be read carefully in light of the facts, issues,

and arguments before the Court in that case. Morrison’s

trial counsel had failed to timely move for the exclusion of

evidence on the ground it had been illegally seized. Id., at

368-369. When the federal courts granted habeas relief

for ineffective assistance, the state attorney general

petitioned for certiorari. The state asked that Stone v.

Powell, 428 U. S. 465 (1976) be extended to ineffective

assistance claims where the underlying error is based on

the exclusionary rule. 477 U. S., at 368; see also id., at

397, n. 4 (Powell, J., concurring in the judgment).

Stone is a case establishing an exception to the rule of

de novo review of federal constitutional claims on habeas

corpus. Stone, 428 U. S., at 481-482. It has no effect on

the manner in which state courts should review such

claims on direct appeal. What the state sought in Kimmel-

man was an exception to the holding of Strickland that the

legal issues in ineffective assistance claims would be

reviewed de novo on habeas. See Strickland, 466 U. S.., at

697-698. The Court unanimously rejected this request.

Kimmelman, 477 U. S., at 382-383 (majority); id., at 391

(concurrence). An ineffective assistance claim based on

failure to move for suppression of evidence is thus

reviewed on habeas exactly the same as it is on direct

review.

The discussion of prejudice in Nix, supra, raises

another question, however. That question was not argued

in Kimmelman. “The more difficult question is whether

the admission of illegally seized but reliable evidence can

ever constitute ‘prejudice’ under Strickland. There is a

strong argument that it cannot. But that argument has

neither been raised by the parties nor discussed by the

various courts involved in this case.” /d., at 391 (Powell,

J., concurring in the judgment).

22

Justice Powell's concerns were apparently prompted by

the majority's statement that “[wle decline to hold —

that the guarantee of effective assistance of counse

belongs solely to the innocent or that it attaches only to

matters affecting the determination of actual guilt.” /d.,

at 380. The first part of this statement is a pure example

of the straw man fallacy. Neither the state nor the

concurrence contended that the right was conditioned on

actual innocence. The second part confou nds the scope of

the right with the question of when an error Is ground for

reversal. The prejudice component of Strickland 1s

addressed only to the latter. The majority then goes on to

acknowledge the limited issue before the Court and the

true holding of the case: ineffective assistance In the

litigation of a Fourth Amendment claim is judged the

same on habeas as on direct review. /bid. The question

raised by the concurring opinion is still open.

Even if the majority’s broad language is considered

authoritative, however, that language is contrary to the

Eighth Circuit's holding in the present case. The majority

states unequivocally that a meritorious issue is “necessary

to the success of a Sixth Amendment claim like respond-

ent’s....” Id., at 382. The need to establish the merits

of the claim is clear from the Court's decision to remand.

The State was entitled to show that the search was legal.

Id., at 390-391. This entitlement is not phrased in terms

of a probability that the state would have prevailed on the

issue at trial. If the search was legal, there was no

prejudice.

D. Right to Assistance v. Right to Reversal.

There is no question that a defendant is entitled to the

“guiding -hand of counsel at every step of the proceed-

ings... .” Powell v. Alabama, 287 U. S. 45, 69 (1932).

The question on the prejudice component of Strickland is

23

whether an error or assumed error’ is ground for reversal.

The prejudice discussions in Strickland, Kimmelman, and

Ni& must be read together in the context of the facts of

each case.

In Strickland there was no question that omitted

evidence was relevant and admissible. See Hitchcock v.

Dugger, 481 U. S. 393, 394 (1987) (all evidence proffered

as mitigating must be considered). Therefore the only

issue regarding reliability of the result was whether that

evidence would have made a difference. See Strickland,

466 U. S., at 694.

In Kimmelman, the admissibility of the evidence was

hotly disputed, though its veracity and relevance were not.

Kimmelman therefore added to Strickland’s “reasonable

probability” requirement a condition that admitted

evidence actually be inadmissible. Kimmelman, 477 U. S..

382, 390-391. To those who still believe in the exclusion-

ary rule, a conviction on illegally obtained evidence is a

“wrong” result. See, e.g., 1 W. LaFave, Search and Seizure

§ 1.1(f), at 17 (2d ed. 1987). Even those who disagree

with the rule must concede that the result is contrary to

what the law would require if the controversy had been

fully aired and correctly decided. Failure to object to

illegally seized evidence, therefore, arguably qualifies for

the basic definition of prejudice: “the result of the

particular proceeding is unreliable because of a breakdown

in the adversarial process that our system counts on to

produce just results.” Strickland, 466 U. S., at 696.

The evidence in Nix lies at the opposite end of the

spectrum from the evidence in Strickland. Lying under

oath is not merely an error, it is a felony. Unlike the

exclusionary rule, where the justice of the result is debat-

able, no one could contend that a trial where a defendant

9. If the court addresses the prejudice component first, see Strickland, 466

U. S., at 697, it may never reach the question of whether an unprofes-

sional error was actually committed.

24

is restrained from lying is thereby rendered less reliable or

less likely to produce a just result. See Nix, supra, 475

U.S., at 185 (Blackmun, J., concurring in the result).

Where introducing evidence would be wrong, omitting that

evidence cannot be prejudicial, regardless of whether it

might have changed the result.

There are many cases where defense lawyers have

obtained wrong verdicts for their clients. See id., at 186.

Strickland makes clear that defense counsel's failure to

obtain a wrongful acquittal is not reversible error, even if

a better lawyer might have obtained one. A failure to

make a pitch for jury nullification is not prejudice, for

example, even if a competent lawyer would have made

one, and even if it would have worked. See Strickland,

466 U. S., at 694-695.

The question is not whether the defendant was de-

prived of a “sporting chance.” See Brady v. Maryland, 373

U. S. 83, 90 (1963). It is only whether there is reason to

lack confidence in the result. Strickland, 466 U. S., at 691-

692. The scope of reversible error is therefore narrower

than the scope of the defendant's right to effective

assistance. Even where an effective lawyer could have

“gotten him off” by causing the system to malfunction in

some way, defendant is not entitled to a reversal.

E. Legally Cognizable Prejudice.

The answer to the riddle, amicus submits, lies in the

Nix concurrence’s concept of “legally cognizable preju-

dice.” See Nix v. Whiteside, 475 U.S. 157, 184 (1986)

(Blackmun, J., concurring in the result). It is not enough

that the attorney’s error might have changed the result.

If the alleged error involves a claim of “a right the law

25

simply does not recognize,” then it cannot form the basis

of a valid claim."® /d., at 186.

The law does not recognize a right to a lawless deci-

sion maker. /bid. (quoting Strickland, 466 U. S., at 695).

The law does not recognize a right to present perjured

testimony. /bid. The law does not recognize a right to

erroneous rulings from the trial court.

Legal doctrines change, of course, and a trial court

ruling which was perfectly “correct,” in the sense of

obedience to precedent, may nonetheless be reversed as

“error” if the precedent is overruled. In applying the

performance component of Strickland, a court must look

at the law at the time of the alleged error or omission.

See Strickland, 466 U.S., at 690. It does not follow,

however, that the question of whether any prejudice is

legally cognizable should be governed by overruled law.

The “retroactivity” aspect of this problem need not be

resolved in the present case, however. For the reasons set

forth in part I, ante, at 4-9, Collins v. Lockhart, 754 F. 2d

258 (CA8 1985) was never the law in Arkansas state

courts. Indeed, in its consideration of Fretwell’s case, the

Arkansas Supreme Court explicitly referred to the Collins

argument as an attempt “to change the law.” Fretwell v.

State, 289 Ark. 91, 708 S. W. 2d 630, 634 (1986).

Fretwell, therefore, did not lose any right which the

law presently recognizes or which the law in Arkansas

State courts has ever recognized. The Arkansas Supreme

Court has told us quite plainly that no such right was

recognized at the time of the trial and appeal, and this

Court’s decision in Lowenfield v. Phelps, 484 U. S. 231, 246

(1988) settles authoritatively that there is no such right.

10. Whether exclusion of illegally seized evidence is a “right” or a “windfall,”

see Kimmelman v. Morrison, 477 U.S. 365, 396 (1986) (Powell, J.

concurring in the result), is a question which can and should await a case

where it is both presented by the facts and argued in the briefs.

26

For the purpose of defining legally cognizable preju-

dice, false law is no different from false evidence. It is

possible that the people might have been cheated out of

justice, in a judgment from which they could not appeal.

That possibility does not constitute legally cognizable

prejudice. Nix v. Whiteside, supra, 475 U.S., at 186

(Blackmun, J., concurring in the judgment). The objection

Fretwell’s lawyer failed to make was, in reality, without

merit. He has lost nothing to which he was entitled."'

“Since [Fretwell] 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.” /d.,

at 186-187.

11. In finding prejudice, the Fighth Circuit committed an obvious but

common error. “In our view, fundamental unfairness exists when a

prisoner receives a death sentence rather than life imprisonment solely

because of his attorney's error.” Fretwell v. Lockhart, 946 F, 24 571,577

(CA8 1991) (emphasis added); cf. Butler v. McKellar, 494 U, 8. 407, 430

(1990) (Brennan, J., dissenting). That is like saying that a nonswimmer

who deliberately plunged into a deep lake has drowned “solely because”

the rescuers did not reach him in time. Fretwell is sentenced to death

because he murdered Sherman Sullins in the course of a robbery. See

Pet. Cert. A-22. His choice to commit the crime is the cause of the

penalty he has incurred. There is a remote chance that a better lawyer

might have saved him, but that chance hardly converts the failed attempt

into a cause, much less the sole cause.

27

CONCLUSION

The decision of the Court of Appeals for the Eighth

Circuit should be reversed.

July, 1992

Respectfully submitted,

KENT S. SCHEIDEGGER*

CHARLES L. HOBSON

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

*Attorney of Record

APPENDIX A

— Successful Habeas Petitioners

Last Case Ineff. Claim Disp.

Magwood v. Smith, 791 F.2d 1438 (1986) Yes _ Proc.Def

Thomas v. Kemp, 796 F.2d 1322 (1986) Yes Accepted

Smith v. Wainwright, 799 F.2d 1442 (1986) Yes Accepted

Potts v. Kemp, 814 F.2d 1512 (1987) Yes' Accepted

Amadeo v. Kemp, 816 F.2d 1502 (1987) Yes Not Reached

Elledge v. Dugger, 823 F.2d 1439 (1987) Yes Denied

Christopher v. Florida, 824 F.2d 836 (1987) Yes Not reached

Magill v. Dugger, 824 F.2d 879 (1987) Yes Accepted

Bowen v. Kemp, 832 F.2d 546 (1987) No

Dix v. Kemp, 832 F.2d 546 (1987) No’

Hargrave v. Dugger, 832 F.2d 1528 (1987) No

Armstrong v. Dugger, 833 F.2d 1430 (1987) Yes Accepted

Dick v. Kemp, 833 F.2d 1448 (1987) No

Messer v. Florida, 834 F.2d 890 (1987) Yes Denied

Godfrey v. Kemp, 836 F.2d 1557 (1988) Yes’ Denied

Jackson v. Dugger, 837 F.2d 1469 (1988) No

Stone v. Dugger, 837 F.2d 1474 (1988) Yes Denied

Corn v. Kemp, 837 F.2d 1477 (1988) Yes* Denied

Mann v. Dugger, 844 F.2d 1446 (1988) No

Stephens v. Kemp, 846 F.2d 642 (1988) Yes Accepted

Ruffin v. Dugger, 848 F.2d 1512 (1988) Yes Denied

Middleton v. Dugger, 849 F.2d 491 (1988) Yes Accepted

Cervi v. Kemp, 855 F.2d 702 (1988) No

Smith v. Zant, 855 F.2d 712 (1988) Yes Not reached

Berryhill v. Zant, 858 F.2d 633 (1988) Yes Not reached

Knight v. Dugger, 863 F.2d 705 (1988) Yes Denied

CONTINUED

a Successful Habeas Petitioners - CONTINUED

Jones v. Dugger, 867 F.2d 1277 (1989) Yes Denied

Harris v. Dugger, 874 F.2d 756 (1989) Yes Accepted

TOTALS Petitioners: 28 Ineff. Claims: 21 Accepted: 8

Denied: 9

Not reached: 4

Unsuccessful Habeas Petitions

Last Case Ineffectiveness Claim

Bowden v. Kemp, 793 F.2d 273 Yes, see 733 F.2d 740

Tafero v. Wainwright, 796 F.2d 1314 Yes

Tucker v. Kemp, 802 F.2d 1293 Yes, see 762 F.2d 1480

Hall v. Wainwright, 805 F.2d 945 Yes

Demps v. Wainwright, 805 F.2d 1426 No

Johnson v. Wainwright, 806 F.2d 1479 = Yes

White v. Wainwright, 809 F.2d 1478 No

Dobbs v. Kemp, 809 F.2d 750 Yes, see 790 F.2d 1499

Ritter v. Smith, 811 F.2d 1398 No

Mulligan v. Kemp, 818 F.2d 746 Yes, see 771 F.2d 1436

Tucker v. Kemp, 818 F.2d 749 Yes, see 762 F.2d 1496

High v. Kemp, 819 F.2d 988 Yes

Lindsey v. Smith, 820 F.2d 1137 Yes, see 820 F.2d 1137

Foster v. Dugger, 823 F.2d 402 Yes

Darden v. Dugger, 825 F.2d 287 Yes

Booker v. Dugger, 825 F.2d 281 Yes

White v. Dugger, 828 F.2d 10 No

Ritter v. Thigpen, 828 F.2d 662 Yes

SED

Unsuccessful Habeas Petitions CONTINUED

Mitchell v. Kemp, 827 F.2d 1433 Yes

Lightbourne v. Dugger, 829 F.2d 1012 = Yes, 829 F.2d 1012

McCorquodale v. Kemp, 829 F.2d 1035 No

Davis v. Kemp, 829 F.2d 1522 Yes

Messer v. Kemp, 831 F.2d 946 Yes

Clark v. Dugger, 834 F.2d 1561 Yes, see 834 F.2d 1561

Presnell v. Kemp, 835 F.2d 1567 No

Fleming v. Kemp, 837 F.2d 940 Yes, see 560 F.Supp. 525

Daugherty v. Dugger, 839 F.2d 1426 Yes

Willis v. Kemp, 838 F.2d 1510 Yes, see 720 F.2d 1212

Smith v. Dugger, 840 F.2d 787 Yes

Julius v. Johnson, 840 F.2d 1533 Yes, see 840 F.2d 1533

Buford v. Dugger, 841 F.2d 1057 Yes

Harich v. Dugger, 844 F.2d 1464 Yes

Williams v. Kemp, 846 F.2d 1276 Yes

Stewart v. Dugger, 847 F.2d 1486 Yes, see 847 F.2d 1486

Bundy v. Dugger, 850 F.2d 1402 Yes

Dunkins v. Thigpen, 854 F.2d 394 Yes, see 854 F.2d 344

Singleton v. Thigpen, 856 F.2d 126 Yes, see 847 F.2d 668

Gates v. Zant, 863 F.2d 1492 Yes

Richardson v. Johnson, 864 F.2d 1536 ~=—s Yes

Griffin v. Dugger, 874 F.2d 1277 Yes, see 760 F.2d 1505

TOTALS Petitioners: 40

Ineff. Claims: 34

See 575 F.Supp. 374, 387.

Consolidated with Bowen v. Kemp. See 832 F.2d, at 620.

See 613 F.Supp. 737, 758-760.

See 798 F.2d 549, 560.

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