# Amicus Curiae Brief — Lockhart v. Fretwell

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1993
- **Citation:** 506 U.S. 364

## Text

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
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0247%3A09. Public record. Not legal advice.