# Amicus Curiae Brief — Trest v. Cain

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0091%3A08

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1997
- **Citation:** 522 U.S. 87

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0091%3A08. Public record. Not legal advice.