Amicus Curiae Brief — Trest v. Cain

No. 96-7901

IN THE

Supreme Court of the Gnited

OCTOBER TERM, 1996

JUL 30 1997

tates coms“

RICHARD F. TREST,

Petitioner,

Vv.

BURL CAIN, WARDEN,

LOUISIANA STATE PENITENTIARY,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF FOR THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

EDWARD M. CHIKOFSKY

Counsel of Record

140 West 62nd Street

New York, NY 10023

(212) 289-1062

BARBARA E. BERGMAN

1117 Stanford, N.E.

Albuquerque, NM 87131

(505) 277-3304

Counsel for Amicus Curiae

AN A a

PRESS OF BYRON S. ADAMS # WASHINGTON, D.C. # 1-800-347-8208

ho x

QUESTION PRESENTED

Whether the Court of Appeals entertaining a state

prisoner’s federal habeas corpus claims is foreclosed from

reviewing the claims on the merits and must consider sua

sponte the affirmative defense of procedural default where the

State has never asserted the defense and the st2te courts have

not relied on it in addressing petitioner’s claims.

QUESTION PRESENTED

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE ......----++>:

SUMMARY OF ARGUMENT ....-.-------s07"

ARGUMENT:

I.

THE COURT OF APPEALS ERRED IN

INVOKING PROCEDURAL DEFAULT

WHERE PETITIONER PROPERLY

EXHAUSTED THE STATE REMEDIES OF

LOUISIANA RATHER THAN MISSISSIPPI

IN. ATTACKING HIS HABITUAL

OFFENDER STATUS IN LOUISIANA .....

A. Petitioner Committed No Procedural

Default By Exhausting His Remedies In

The State Courts of Louisiana Rather than

Mississippi ....-------+ssseett?

B. The Federal Courts Could Properly

With Mississippi Predicates Where The

Louisiana Post-Conviction Courts Have

Entertained His Enhancement Claims ... . 6

ill

Page

fl. THE STATE’S WAIVER OF PROCEDURAL

DEFAULT ORDINARILY SHOULD BIND

THE COURT OF APPEALS ABSENT A

JURISDICTIONAL DEFECT OR THE RARE

INSTANCE OF A CLEARLY ARTICULATED

NONJURISDICTIONAL VALUE THAT

TRANSCENDS THE INTERESTS OF THE

Ts. .ceteeteseepebe ccaceec 9

Il. THE COURT OF APPEALS ERRED IN

“SANDBAGGING” THE LITIGANTS BY

CONSIDERING PROCEDURAL DEFAULT

SUA SPONTE WITHOUT NOTICE AND AN

OPPORTUNITY TO BE HEARD

DC crcededdeedeecetececcesses 15

IV

TABLE OF AUTHORITIES

Page(s)

Cases:

Beck v. Alabama, 447 U.S. 625 (1980) .........--- 9

Boykin v. Alabama, 395 U.S. 238 (1969) ........- 2,5

Caspari v. Bohlen, 510 U.S. 383 (1994) .......--. 10

Cooper v. Oklahoma, 116 S.Ct. 1373 (1996).......- 1

Crank v. Duckworth, 905 F.2d 1090 (7 Cir. 1990) ... 7

Custis v. United States, 511 U.S. 485 (1994) ....... 7

Esslinger v. Davis, 44 F.3d 1515 (11" Cir. 1995) . 13, 14

Estelle v. Smith, 451 U.S. 454 (1981) .........---- 9

Fagan v. Washington, 905 F.2d 1155 (7 Cir. 1991) .. 10

Falconer v. Lane, 905 F.2d 1129 (7 Cir. 1990) ..... 10

Fay v. Noia, 372 U.S. 391 (1963) ......----+++>> 11

Ford v. Georgia, 498 U.S. 411 (1991) .....--.-+-- 4

Garlotte v. Fordice, 115 S.Ct. 1948 (1995)......... 6

Granberry v. Greer, 481 U.S. 129 (1987) . . 3, 10, 11, 12

Gray v. Netherland, 116 S.Ct. 2074 (1996)........- 10

Hagan v. Utah, 510 U.S. 399 (1994) ...--.--- +++: 12

Hardiman v. Reynolds, 971 F.2d 500 (10° Cir. 1992) . . 14

Harris v. Reed, 489 U.S. 255 (1989) ........-- 8, 10 11

Henderson v. Thieret, 859 F.2d 492 (7 Cir. 1988) ... 10

Jenkins v. Anderson, 447 U.S. 231 (1980) ......--. 9

v

TABLE OF AUTHORITIES (continued)

Page(s)

Lindh v. Murphy, 65 U.S.L.W. 4557 (June 23, 1997) . . 11

Lugo v. Keane, 15 F.3d 29 (2 Cir. 1994).......... 14

Maleng v. Cook, 490 U.S. 488 (1989) ........... 6,7

McCleskey v. Zant, 499 U.S. 467 (1991) .......... 10

Montana v. Egethoff, 116 S.Ct. 2013 (1996) ........ 1

Parke v. Raley, 506 U.S. 20 (1992).............. 6

Schiro v. Farley, 510 U.S. 222 (1994) ............ 9

Smith v. Farley, 25 F.3d 1363 (7 Cir. 1994) ...... 7,8

Smith v. Zant, 887 F.2d 1407 (11" Cir. 1989) ....... 10

Shepard v. Foltz, 771 F.2d 962 (6" Cir. 1985) ...... 4

Sones v. Hargett, 61 F.3d 410 (S* Cir. 1995) ..... 4,13

State v. Johnson, 548 So. 2d 1274 (La. Ct. App. 1989) .. 6

State v. Martin, 427 So. 2d 1182 (La. 1983) ........ 6

State v. Shelton, 621 So. 2d 769 (La.1993)......... 6

State v. Wilson, 599 So. 2d 321 (La. Ct. App. 1992) .. 6

State v. Youngblood, 647 So. 2d 1388 (La. Ct. App.

RE eS ee Te 4

Tredway v. Farley, 35 F.3d 288 (7 Cir. 1994) ...... 7

Trest v. Whitley, 94 F.3d 1005 (5S* Cir. 1996) ....... 4

Ulster County Court v. Allen, 442 U.S. 140 (1979). 3, 9, 12

United States v. Cullum, 47 F.3d 763 (S* Cir. 1995) .. 14

vi

TABLE OF AUTHORITIES (continued)

Page(s)

United States v. Warner, 23 F.3d 287 (10° Cir. 1992) . 14

Urdy v. McCotter, 773 F.2d 652 (S* Cir. 1985) ...--. 14

Wainwright v. Sykes, 433 U.S. 72 (1977) ...---- 11, 13

4

Willis v. Collins, 989 F.2d 187 (S* Cir. 1993) ......--

Miscellaneous:

Antiterrorism and Effective Death Penalty Act of 1996. . 11

La. Code Crim. Proc. Article 924 ef seq ....---+->->

La. Rev. Stat. §15:529.1.......----+eee eres

James S. Liebman & Randy Hertz, FEDERAL HABEAS

CORPUS PRACTICE AND PROCEDURE (2d ed. 1994) . 12

BRIEF FOR THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE

Founded in 1958, the National Association of Criminal

Defense Lawyers is one of the Nation’s leading organizations

advancing the mission of criminal defense lawyers to ensure

justice and due process for persons accused and convicted of

crime. NACDL’s mission, as defined in its bylaws, is to

“Ensure justice and due process for persons accused of crime

. . . Foster the integrity, independence and expertise of the

fair administration of criminal justice.” NACDL has 9,000

members nationwide — along with 78 state and local affiliate

organizations numbering 25,000 members — including private

criminal defense lawyers, public defenders and law professors

committed to preserving fairness within America’s criminal

justice system. NACDL has a long-standing tradition of

demonstrated interest in safeguarding the rights of all persons

involved in the criminal justice system along with preserving

and strengthening our adversary system of justice. It has

appeared before this Court on many occasions as amicus

curiae. See, e.g., Cooper v. Oklahoma, 116 S.Ct. 1373

(1996); Montana v. Egelhoff, 116 S.Ct. 2013 (1996)."

SUMMARY OF ARGUMENT

1. The Court of Appeals erred in sua sponte invoking

procedural default where the Louisiana state and federal

' Both parties have consented to NACDL's appearance in this

matter as amicus curiae. No counsel for any party has authored this brief

in whole or in part and no person or entity, other than amicus curiae, has

made a monetary contribution to the preparation or submission of this

brief. Sup. Ct. Rule 37.6.

2

courts had not relied upon it nor was it raised by the state.

Petitioner need not return to the Mississippi courts to attack

his predicate convictions where the Louisiana courts, which

imposed multiple offender status, entertained his Boykin

claims against the Mississippi predicates and did not invoke

procedural default. He thus exhausted the necessary judicial

remedies of the state under whose jurisdiction he was

presently in custody.

2. The state’s waiver of procedural default ordinarily

should bind the Court of Appeals absent a jurisdictional defect

or the rare instance of a clearly articulated nonjurisdictional

value, such as comity or federalism. In this case, where the

state courts entertained petitioner’s claims and did not invoke

procedural default, there is no institutional value for the

federal courts to vindicate by enforcing state procedural rules

more rigorously than the state courts themselves.

3. The Court of Appeals should not have summarily

invoked Mississippi procedural law without first giving the

parties notice and an opportunity to respond to its possible

misinterpretation of Louisiana and federal law. The federal

courts exercising habeas jurisdiction should be required to

give the parties notice before taking such summary action.

3

ARGUMENT

I. THE COURT OF APPEALS ERRED IN

~ INVOKING PROCEDURAL DEFAULT WHERE

PETITIONER PROPERLY EXHAUSTED THE

STATE REMEDIES OF LOUISIANA RATHER

THAN MISSISSIPPI IN ATTACKING HIS

HABITUAL OFFENDER STATUS IN LOUISIANA

At first blush, this case appears to present a question of

federal law analogous to that previously considered in

Granberry v. Greer, 481 U.S. 129 (1987) — whether the

federal courts of appeals must give sua sponte consideration

to a state prisoner’s procedural default in state court where the

state has waived its affirmative defense of procedural default

in the federal proceeding.

Upon closer scrutiny, however, it becomes clear that this

case presents an even more fundamental question antecedent

to the state’s alleged “waiver” — viz., whether the courts of

appeals must consider procedural dciau!t sua sponte where the

State courts themselves never relied on it and have otherwise

entertained the habeas petitioner’s clairas.

In this case, petitioner presented his challenges to his

antecedent Mississippi state convictions to the Louisiana state

courts which declared him a habitual offender based upon

those earlier out-of-state convictions. La. Rev. Stat. §15-

529.1. The Louisiana state (and federal) courts denied his

claims without considering any alleged failure to present his

Claims to the Mississippi courts in the first instance.

Indeed, there is no suggestion in the record that Louisiana

prosecutors defending this action ever argued procedural

default in the state (or federal) courts based on failure to

present these claims to the Mississippi courts. See, e.g.,

Ulster County Court v. Allen, 442 U.S. 140, 149, 152 (1979):

4

Shepard v. Foltz, 771 F.2d 962, 965 (6" Cir. 1985)(“if the

state prosecutor only argued the merits of the petitioner's

claim before the state courts and never raised the procedural

default issue, the federal courts may assume that the state

courts relied only on the merits”).

Accordingly, where the Louisiana courts declaring him

a habitual offender entertained petitioner's post-conviction

attacks on his antecedent Mississippi convictions, there was

no need for him to pursue his claims in the Mississippi courts

in order to exhaust his state remedies. Petitioner thus did not

default his claims when he pursued them in the state courts of

Louisiana rather than those of Mississippi. Indeed, the

prosecutor in this case has conceded as much (State’s Cert.

Opp. 2).

The Court of Appeals, then, was clearly in error in its

sua sponte reliance on Sones v. Hargett, 61 F.3d 410 (%* Cir.

1995), in finding petitioner time-barred from collaterally

attacking his Mississippi convictions in the Mississipp! courts.

Trest v. Whitley, 94 F.3d 1005, 1007-08 (S* Cir. 1996).

Whatever legal barriers may have existed under Mississippi

law, petitioner was not foreclosed from collaterally attacking

the use of his Mississippi convictions in the Louisiana courts

where they served as predicates for declaring him a habitual

offender under Louisiana law.

A. Petitioner Committed No Procedural Default

By Exhausting His Remedies In The State

Courts Of Louisiana Rather Than Mississippi

The fatal flaw in the Court of Appeals’ analysis was its

determination that petitioner was compelled to return to the

Mississippi courts to attack his antecedent Mississippi

convictions. Finding petitioner’s Mississippi post-conviction

remedies time-barred, the Court of Appeals summarily

5

declared him in provedural default and denied relief. 94 F.3d

at 1007-08 (relying on Sones, 61 F.3d at 416-18).

Petitioner, however, is presently “in custody” (28 U.S.C.

§2254(a)) pursuant to a judgment of conviction for armed

robbery entered in the state courts of Louisiana in 1979.

Under Louisiana’s habitual offender law (La. Rev. Stat.

§15:529.1), petitioner was adjudicated a multiple offender

based upon his prior 1976 burglary convictions in Mississippi.

Petitioner sought post-conviction relief in the Louisiana courts

where he attacked the Louisiana sentencing court’s

enhancement based upon those prior Mississippi convictions,

alleging that these predicates were unconstitutional under

Boykin v. Alabama, 395 U.S. 238 (1969). (In particular, he

attacked the Mississippi sentencing court’s failure to advise

him of the constitutional rights he was waiving by pleading

guilty as well as the maximum possible sentence he might

receive).

The Court of Appeals’ reliance on Sones, then, was

fatally flawed. Whatever relevance Sones may have to

collateral attacks on Mississippi predicates in Mississippi

habitual offender proceedings, it has none with respect to the

use of Mississippi predicates in out-of-state (e.g., Louisiana)

habitual offender proceedings where the Louisiana courts

entertain collateral attacks on the constitutionality of the out-

of-state predicates. Notwithstanding the absence of Mississippi

state remedies by which to attack these predicate Mississippi

convictions, the state courts of Louisiana provided a presently

available post-conviction remedy by which petitioner could

(and did) attack the validity of these out-of-state convictions

and their subsequent use against him in Louisiana habitual

offender proceedings. See La. Code Crim. Proc. art. 924 et

seq. (post-conviction relief statute); see especially id. art.

6

930.3(1)(collateral attack available for violations of the

Constitutions of Louisiana and the United States).”

B. The Federal Courts Could Properly Entertain

Petitioner’s Attack On The Enhancement Of

His Louisiana Sentence With Predicate

Convictions From Mississippi Where The

Louisiana Post-Conviction Courts Have

Entertained His Enhancement Claims

To the extent that petitioner attacked his Mississippi

convictions insofar as they were used as predicates to enhance

his Louisiana sentence under the latter state’s habitual

offender law, he is presently “in custody” (§2254(a)) pursuant

to his Louisiana conviction as enhanced by his earlier

Mississippi predicates. He thus has standing to collaterally

attack the use of his earlier Mississippi predicates in the state

and federal courts of Louisiana. See Maleng v. Cook, 490

U.S. 488, 494 (1989); Garlotte v. Fordice, 115 S.Ct. 1948,

1952 n.4 (1995) (Maleng “left open the possibility . . . that

the conviction underlying the expired sentence might be

2 Louisiana case law is fully in accord. See, e.g., State v.

Shelton, 621 So.2d 769, 773 & n.8, 775 & n.14, 776 n.15 (La.

1993)(adopting Parke v. Raley [506 U.S. 20 (1992)] standard for use of

prior guilty plea convictions as predicate offenses in multiple offender

proceedings; applicable to post-conviction attacks on out-of-state

predicates); State v. Youngblood, 647 So.2d 1388, 1389-90 (La. Ct. App.

1994)(post-conviction relief available to attack out-of-state convictions in

multiple offender proceeding); State v. Martin, 427 So.2d 1182, 1186,

1187 (La. 1983)(post-conviction relief available to multiple offender whose

predicate conviction is based on an uncounseled guilty plea); State v.

Wilson, 599 So.2d 321, 322 (La. Ct. App. 1992)(post-conviction relief

available to attack habitual offender proceeding where defendant was not

informed of his constitutional right to remain silent with respect to

predicate convictions); State v. Johnson, 548 So.2d 1274, 1275 (La. Ct.

App. 1989) (accord).

7

subject to challenge in a collateral attack upon the subsequent

sentence that the expired sentence was used to enhance”);

Custis v. United States, 511 U.S. 485, 512 n.7 (1994)(Souter,

J., dissenting)(“Court of Appeals decisions postdating Maleng

have uniformly read it as consistent with the view that federal

habeas courts may review prior convictions relied upon for

sentence enhancement and grant appropriate relief”); Smith v.

Farley, 25 F.3d 1363, 1365-66 (7 Cir. 1994)(“Because a

person currently serving a sentence that was enhanced on the

basis of a prior conviction is still in custody, he may

challenge the enhancing conviction as constitutionally invalid

even though that conviction’s prior sentence has expired”);

Tredway v. Farley, 35 F.3d 288, 295 (7 Cir. 1994)(“‘[O]nce

the State breathes new life into a dormant conviction, it only

seems appropriate that the defendant should then have the

opportunity to challenge the conviction’s validity’”); Willis v.

Collins, 989 F.2d 187, 189 (5" Cir. 1993)(“‘positive and

demonstrable nexus between . . . current custody and the

allegedly unconstitutional [prior] conviction’ . . . [is]

‘sufficient to meet the jurisdictional requirements of

§2254(a)’"); Crank v. Duckworth, 905 F.2d 1090, 1091 (7"

Cir. 1990)(“Maleng holds that when sentence A has expired

but has been used to augment sentence B, the prisoner is ‘in

custody’ only on sentence B. The consequences of sentence

A for sentence B do not yield continued custody on sentence

A, * * * [But] a person in custody on sentence B may contend

that that custody violates the Constitution if it was augmented

because of an invalid sentence A”)(emphasis in original).

Nor are any federalism or comity concerns violated by

virtue of the state and federal courts of Louisiana entertaining

collateral attacks on Mississippi convictions insofar as they

8

are used to enhance Louisiana sentences. As analogized by

the Seventh Circuit in precisely this context (Smith v. Farley,

25 F.3d at 1368 n.10):

Suppose State A imposes the first conviction and

State B the second. State B may offer the defendant

review of his earlier State A conviction only as far as

its new use in State B. Since such a defendant would

not be seeking to set aside his State A conviction as

constitutionally invalid, but merely to challenge the

constitutionality of his conviction as used to enhance

his present sentence in State B, principles of

federalism, comity, and full faith and credit are not

as directly implicated.

Accordingly, where the state and federal courts of

Louisiana entertained collateral attacks on petitioner’s prior

Mississippi convictions as predicates for his Louisiana

habitual offender sentence, petitioner was not obligated to

seek post-conviction relief from the Mississippi state courts;

a fortiori there was no procedural default committed in this

case. Under the circumstances, then, the state did not “waive”

a procedural default that, indeed, never occurred. Since this

Court has noted that the federal courts are not obliged to

honor state procedural rules more sedulously than do the state

courts themselves — Harris v. Reed, 489 U.S. 255, 265 n.12

(1989)(“if the state court under state law chooses not to rely

on a procedural bar . . . , then there is no basis for a federal

habeas court’s refusing to consider the merits of the federal

claim”) — the Court of Appeals committed clear error in

relying sua sponte on a procedural default that, in fact, never

existed. Standing by itself, this error warrants summary

vacatur of the Court of Appeals’ judgment irrespective of the

question of the state’s alleged “waiver” of the (nonexistent)

procedural default.

Peete ene eee

9

Il. THE STATE’S WAIVER OF PROCEDURAL

DEFAULT ORDINARILY SHOULD BIND THE

COURT OF APPEALS ABSENT A

JURISDICTIONAL DEFECT OR THE RARE

INSTANCE OF A CLEARLY ARTICULATED

NONJURISDICTIONAL VALUE THAT

TRANSCENDS THE INTERESTS OF THE

PARTIES

This Court has held repeatedly that where the state fails

to apprise the federal courts in a timely fashion of a state

procedural bar, the procedural default rule does not preclude

federal habeas relief. Consequently, if state prosecutors — or

the state courts themselves — choose not to notice a default —

or fail to make any such assertion in a timely manner — the

federal courts show no disrespect for the state’s interest by

reaching the merits. See, e.g., Ford v. Georgia, 498 U.S.

411, 420-21 n.5 (1991)(Court declines to consider adequate

and independent state procedural ground in part because the

State has failed to assert it in timely fashion); Beck v.

Alabama, 447 U.S. 625, 630 n.6 (1980)(state waived

procedural default claim by stating in certiorari response that

issues were “fully considered” and “correctly decided” by state

courts); Jenkins v. Anderson, 447 U.S. 231, 234 nl

(1980)(Sykes defense waived when not asserted in lower

federal courts); Estelle v. Smith, 451 U.S. 454, 468 n.12

(1981)(accord); Ulster County Court v. Allen, 442 U.S. at 152

(state’s attorney’s failure to raise procedural bar in state

courts suggests state courts rejected claims on merits).

Moreover, this Court has regularly determined that

various habeas defenses such as exhaustion of state remedies,

procedural default, nonretroactivity and abuse of the writ are

nonjurisdictional in nature and may be waived by the state

absent their timely assertion. See, e.g., Schiro v. Farley, 510

10

U.S. 222, 227-28 (1994)(Teague nonjurisdictional);

McCleskey v. Zant, 499 U.S. 467, 494 (1991)(abuse of the

writ nonjurisdictional); Harris v. Reed, 489 U.S. at 265 n.12

(procedural default nonjurisdictional in habeas); Gray v.

Netherland, 116 S.Ct. 2074, 2082 (1996)(accord); Granberry

v. Greer, 481 U.S. at 132 (exhaustion nonjurisdictional).

The lower federal courts have held similarly that waiver

and forfeiture are not doctrines that apply one-sidedly only

against habeas petitioners. Rather, the state may also forfeit

a procedural defense by failing to assert it in a timely manner

and at the appropriate point in the course of habeas litigation.

See, e.g., Fagan v. Washington, 942 F.2d 1155, 1157 (7

Cir. 1991)(the state “waived waiver” by failing to assert it in

a timely manner)(collecting cases); Henderson v. Thieret, 859

F.2d 492, 497-98 (7" Cir. 1988)(accord); see also Falconer

v. Lane, 905 F.2d 1129, 1135 (7" Cir. 1990)(“Waiver is not

an obstacle reserved for habeas petitioners alone”); Smith v.

Zant, 887 F.2d 1407, 1438 (11" Cir. 1989)(en banc)

(Kravitch, J., concurring)(“Waiver of claims is not a principle

that works only to the detriment of [habeas] petitioners”);

Caspari v. Bohlen, 510 U.S. 383, 397 (1994)(Stevens, J.,

dissenting)(“In recent years, the Court has fashioned harsh

rules regarding waiver and claim forfeiture to defeat

substantial constitutional claims. If we are to apply such a

strict approach to waiver in habeas corpus litigation, we

should hold the warden to the same standard").

In this case, of course, there was no “waiver” at all,

strictly speaking. Rather, the state has explicitly conceded

that petitioner properly exhausted his state remedies by having

litigated his claims through the Louisiana — rather than

Mississippi — state courts. See Point I, supra. There is,

thus, no waiver by default or a merely implicit waiver by the

state. Accordingly, the Court of Appeals should have been

1]

required to set forth some countervailing policy consideration

inherent in the “exigencies of federalism” (Fay v. Noia, 372

U.S. 391, 433 (1963)) or “considerations of comity’

(Wainwright v. Sykes, 433 U.S. 72, 84 (1977)) to justify its

permissive authority to act sua sponte. The only policy

prescriptions even remotely applicable here, however, have

no application in the case of procedural default, whatever

their possible relevance in the context of exhaustion.

In Granberry v. Greer, 481 U.S. at 134-35, this Court

indicated its “reluctance to adopt rules that allow a [habeas]

* party to withhold a defense [here, nonexhaustion] until after

the ‘main event’ — in this case the proceedings in the District

Court — is over”. It ruled, however, that when the state fails

to raise an “arguably meritorious nonexhaustion defense”,

“[tJhe court should determine whether the interests of comity

and federalism will be better served by addressing the merits

forthwith or by requiring . . . additional state and district

court proceedings”. Jd. at 134-35.’

These federalism considerations have no application here.

Unlike the nonexhaustion situation, where the state courts

have had no prior opportunity to consider petitioner’s claims

(and the federal courts may have an interest in affording the

State courts that first opportunity where an unresoly’d

question of state or federal law may be involved), the state

. While the Antiterrorism and Effective Death Penalty Act of

1996 (Pub. L. 104-132, 110 Stat. 1214 (April 24, 1996)) has changed the

waiver standard applicable to the exhaustion defense, requiring that such

waivers be express and forbidding state waivers by default — see newly-

enacted 28 U.S.C. §2254(b)(3) — the new standard has no application in

this case. This Court has recently determined that the new habeas statute

applies only prospectively to federal habeas proceedings commenced after

its April 24, 1996 enactment. See Lindh v. Murphy, 65 U.S.L.W. 4557

(U.S. June 23, 1997).

12

courts here have already considered petitioner’s claims and

denied relief on the merits.

Thus, notwithstanding Granberry’s reliance on the unique

attributes of the exhaustion doctrine that distinguish it from

procedural default — e.g., exhaustion’s applicability when

federal review may be postponed, but not foreclosed, pending

invocation of available state remedies — a state’s explicit

waiver of procedural default, unlike its waiver of exhaustion,

removes all bases for federal court reliance on the default, as

the adequate and independent ground rule protects only the

interests of the states and none of the federal courts. See

Harris v. Reed, 489 U.S. at 265 n.12; Ulster County Court v.

Allen, 442 U.S. at 152-54. Accordingly, the state’s waiver of

procedural default should require the federal courts to reach

the merits of petitioner’s claims. Cf. Hagen v. Utah, 510

U.S. 399, 410 (1994)(“We see no reason to consider an

argument that [Hagen] not only refuses to raise but also

expressly refused to rely upon”); 2 James S. Liebman &

Randy Hertz, FEDERAL HABEAS CORPUS PRACTICE AND

PROCEDURE §22.1 at 647 n.39 & §26.2a at 816-17 n.2 (2d ed.

1994).

Here, then, where the state courts have had a first

opportunity to consider petitioner’s claims, and have not

invoked procedural default, there are no aspects of comity or

deference to state procedural rules than have the state courts

themselves, particularly where the state’s attorney — the

state’s designated representative in the federal courts — has

not requested it.

13

Il. THE COURT OF APPEALS ERRED IN

“SANDBAGGING” THE LITIGANTS BY

CONSIDERING PROCEDURAL DEFAULT SUA

SPONTE WITHOUT NOTICE AND AN

OPPORTUNITY TO BE HEARD

While the Court of Appeals tartly chided the parties for

failing to cite or discuss Sones v. Hargett, supra, in their

briefs and oral argument (94 F.3d at 1007 n.2), in retrospect,

the parties correctly analyzed the applicable principles of

federal and (Louisiana) state law; Sones was (and is)

manifestly irrelevant to the correct disposition of this case.

Had the Court of Appeals first sought guidance from the

parties on this question, rather than addressing it peremptorily

in denying relief, the lower court might well have avoided

plain error under both federal and Louisiana law. See, e.g.,

Esslinger v. Davis, 44 F.3d 1515, 1526, 1528 & n.45 (11"

Cir. 1995)(magistrate judge’s sua sponte invocation of

procedural default was “based on a rank misinterpretation of

Alabama law” and “district court’s misapplication of a state

procedural bar”).

This Court has warned litigants that they may not

“sandbag” their adversaries or the courts by strategically

withholding seasonable claims and defenses only to belatedly

spring them unannounced at some later phase of the litigation.

Wainwright v. Sykes, 433 U.S. at 89. This principle applies

with equal measure to the courts of appeals, which should not

spring new claims or defenses not addressed by the parties in

earlier phases of the litigation without — at an irreducible

minimum — affording the parties an opportunity to address

and respond to newly-arisen developments in the litigation.

See Esslinger, 44 F.3d at 1528 (“we think it fundamentally

unfair for a court sua sponte to invoke a procedural default

without giving the petitioner an opportunity to show cause for

14

the default. In this case, the magistrate judge, and the district

court, effectively ‘sandbagged’ the petitioner”).

Under similar circumstances, the courts of appeals

themselves have repeatedly cautioned that, whether the

defense be exhaustion, procedural default, nonretroactivity or

abuse of the writ, where it is raised by the district court in the

first instance, the habeas petitioner must be given an

appropriate opportunity to respond to the defense. See Lugo

v. Keane, 15 F.3d 29, 30-31 (2° Cir. 1994)(“No principle is

more fundamental to our system of judicial administration

than that a person is entitled to notice before adverse judicial

action is taken against him”); accord: United States v. Cullum,

47 F.3d 763, 764 (5" Cir. 1995); United States v. Warner, 23

F.3d 287, 291 (10" Cir. 1994); Hardiman v. Reynolds, 971

F.2d 500, 505 (10" Cir. 1992); Urdy v. McCotter, 773 F.2d

652, 656-57 (5" Cir. 1985); Esslinger, 44 F.3d at 1528.

Here, the Court of Appeals’ sua sponte reliance on

Mississippi procedural law appears to have been based upon

a misinterpretation of Louisiana (and federal) law. Had the

lower court first given the parties an opportunity to respond

to its contemplated course of action, it could have been

quickly disabused of its misinterpretation and promptly turned

its attention to the merits of petitioner’s claims.

Accordingly, this Court, acting in its supervisory

capacity, should underscore that where the lower federal courts

exercising habeas jurisdiction contemplate consideration of a

potentially dispositive claim or defense not raised by the

parties, the litigants must first be given notice and an

opportunity to be heard on the issue.

15

CONCLUSION

The judgment of the Court of Appeals should be

reversed.

Respectfully submitted,

EDWARD M. CHIKOFSKY

Counsel of Record

140 West 62™ Street

New York, NY 10023

(212) 289-1062

BARBARA E. BERGMAN

1117 Stanford, N.E.

Albuquerque, NM 87131

(505) 277-3304

July 1997 Counsel for Amicus Curiae