Amicus Curiae Brief — Edwards v. Carpenter

Supreme Ge,

EFIBESB

JUL 23 1999

OFEICE OE IHS OLERY

No. 98-2060

Hu the

Supreme Court of the United States

RONALD D. EDWARDS, WARDEN,

Petitioner.

Vv.

ROBERT W. CARPENTER,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

BRIEF OF AMICI CURIAE STATES OF TEXAS, ALASKA,

ARKANSAS, ARIZONA, CALIFORNIA, COLORADO,

CONNECTICUT, DELAWARE, GEORGIA, IDAHO, ILLINOIS,

IOWA, KANSAS, LOUISIANA, MARYLAND, MONTANA,

NEBRASKA, NEVADA, NEW MEXICO, NORTH CAROLINA,

OKLAHOMA, PENNSYLVANIA, SOUTH CAROLINA, UTAH, AND

WASHINGTON IN SUPPORT OF PETITIONER

JOHN CORNYN GREGORY S. COLEMAN

Attorney General of Texas Solicitor General

Counsel of Record

ANDY TAYLOR

First Assistant Attorney IDOLINA G. MCCULLOUGH

General Assistant Solicitor General

P.O. Box 12548

SHANE PHELPS Austin, Texas 78711-2548

Deputy Attorney General (512) 936-1823

for Criminal Justice

Counsel for Amici Curiae

querer a

—

=

ate ieee ee ee

BRUCE M. BOTELHO

Attorney General of Alaska

MARK PRYOR

Attorney General of Arkansas

JANET NAPOLITANO

Attorney General of Arizona

BILL LOCKYER

Attorney General of California

KEN SALAZAR

Attorney General of Colorado

MICHAEL E. MCLACHLAN

Solicitor General of Colorado

JOHN M. BAILEY

Chief State's Attorney of

Connecticut

M. JANE BRADY

Attorney General of Delaware

THURBERT E. BAKER

Attorney General of Georgia

ALAN G. LANCE

Attorney General of Idaho

JAMES E. RYAN

Attorney General of Illinois

THOMAS J. MILLER

Attorney General of lowa

CARLA J. STOVALL

Attorney General of Kansas

RICHARD P. IEYOUB

Attorney General of Louisiana

J. JOSEPH CURRAN, JR.

Attorney General of Maryland

JOSEPH P. MAZUREK

Attorney General of Montana

DON STENBERG

Attorney General of Nebraska

FRANKIE SUE DEL PAPA

Attorney General of Nevada

PATRICIA A. MADRID

Attorney General of New

Mexico

MICHAEL F. EASLEY

Attorney General of North

Carolina

W.A. DREW EDMONDSON

Attorney General of Oklahoma

D. MICHAEL FISHER

Attorney General of

Pennsylvania

CHARLES M. CONDON

Attorney General of South

Carolina

JAN GRAHAM

Attorney General of Utah

CHRISTINE O. GREGOIRE

Attorney General of

Washington

STATEMENT OF AMICI CURIAE INTEREST

The State of Texas, and the 24 other States that join in this brief urge

the Court to grant certiorari in this case to address an important question

affecting the States’ interest in the finality of state criminal convictions.

At issue is whether a federal court reviewing a writ of habeas corpus is

barred from considering an ineffective assistance of counsel claim as

“cause” for the procedural default of another claim when the ineffective

assistance claim itself is procedurally defaulted. The Sixth Circuit said

no. Carpenter v. Mohr, 163 F.3d 938, 945-46 (CA6 1998), petition for

cert. filed (U.S. June 22, 1999) (No. 98-2060).

The Sixth Circuit's decision overlooks well-established precedent

requiring that it conduct a “cause” and “prejudice” analysis on the

defaulted ineffective assistance claim before using the ineffective

assistance of counsel claim as “cause” for another procedurally defaulted

claim. Its argument that the Supreme Court was merely concerned with

exhaustion of an ineffective assistance of counsel claim before it could

serve as “cause” for a procedurally defaulted independent issue

misinterprets the Court's precedent regarding procedural bars in federal

court.

Because the court of appeals has effectively ruled that procedurally

defaulted ineffective assistance of counsel claims will be resurrected in

federal court to serve as “cause” for other procedurally aefaulted claims,

a petitioner can knowingly choose to default claims in state court in

hopes that a federal court will accord more favorable review of his

federal claims. This creates a risk of forum-shopping for constitutional

claims and undermines the States’ legitimate interests in having the first

opportunity to right their mistakes. Thus, the Sixth Circuit's decision

offends state sovereignty.

If left standing, the lower court's opinion opens the doors to a flood

of federal habeas litigation. Based on this decision, habeas petitioners

can return to state court and file abusive state writs alleging a laundry list

of ineffective assistance of counsel claims and bootstrap those claims to

other claims that have already been procedurally defaulted. For these

reasons, the Sixth Circuit's decision undercuts long-standing principles

of comity.

One of the purposes of the procedural default doctrine is to

acknow ledge the binding nature of state rules of procedure that preclude

independent review by federal courts. Wainwright v. Sykes, 433 U.S. 72,

90-91 (1977). In addressing a claim that has been procedurally defaulted

in state court, a federal court shows a complete disregard for state

procedural rules. Repeatedly, the Court has “emphasized the important

interests served by state procedural rules at every stage of the judicial

process and the harm to the States that results when federal courts ignore

these rules.” Coleman v. Thompson, 501 U.S. 722, 749 (1989). Indeed,

the Court has recognized that “[a] state's procedural rules serve vital

purposes at trial, on appeal, and on state collateral attack.” Murray v.

Carrier, 477 U.S. 478, 490 (1986). Based on this long history of respect

for state procedural requirements, the Court cannot countenance the Sixth

Circuit's reasoning.

The Second, Fourth, Seventh, Eighth, and Eleventh Circuits have also

addressed the issue and decided it contrary to the Sixth Circuit's position.

Reves v. Keane, 118 F.3d 136, 139-40 (CA2 1997), Justus v. Murray, 897

F.2d 709, 713 (CA4 1990), Pisciotti v. Washington, 143 F3d 296, 300

(CA7 1998), Harris v. Lockhart, 948 F.2d 450, 452 (CA8 1991), Hill v.

Jones, 81 F.3d 1015, 1030 (CAIL 1996), cert. denied, 519 U.S. 1119

(1997). The Sixth Circuit's decision creates a split in the circuits, and

makes this important question ripe for review by the Court. Accordingly.

certiorari should be granted and the decision below reversed.

TABLE OF CONTENTS

Statement of Amici Curiae Interest... 2.22 i

PED ha dateddacuddseUuineeiseckenscckuaws mW

SU a, a ao. ae aeb os seach a iN

ERE ERE Se ee |

PE A ohn GccdekWbuehddedeserdhuderasededecniannes !

1. The Procedural Default Doctrine Is Founded on

Principles of Comity and Federalism. ............... |

li. The Procedural Default Doctrine Dictates a “Cause and

Prejudice” Analysis on All Claims Procedurally

EEE SET a a eee 3

Ill. This Case Requires Immediate Review to Protect the

States’ Interests in Enforcement of Their Procedural

a a 6

IV. This Case Has Created Confusion and Conflict Among

I all 6c ae 6 ee ce eed. eee 9

Dt. ptdenecuedesendesusetesde usudendes dbase 12

TABLE OF AUTHORITIES

CASES:

Carpenter v. Mohr, 163 F.3d 938 (CA6 1998),

petition for cert. filed (U.S. June 22, 1999)

ie ele ee eee ws wa eis i, 2, 5, 7-9

Coleman v. Thompson, 501 U.S. 722 (1989). .0 0000... passim

County Court of Ulster County, New York v. Allen,

SE EY, ccc dnbniduensédncasdeveiastsnapanes l

Harris v. Lockhart, 948 F.2d 450 (CAB 1991) 2.0.0... ... tl

Harris v. Reed, 489 U.S. 255 (1989). 2... oe ee ee passim

Hill v. Jones, 81 F.3d 1015 (CATT 1996),

cert. denied, 519 U.S. 1IVO(I997). .. 2... ee eee un, 10

Justus v. Murray, 897 F.2d 709 (CA4 1990) ©... 22... i, 9, 10

Murray v. Carrier, 477 U.S. 478 (1986). .............. passim

Picard v. Connor, 404 U.S. 270 (1971) 2... eee 2

Pisciotti v. Washington, 143 F3d 296 (CA7 1998) ........ ii, 11

Reves v. Keane, 118 F.3d 136(CA2 1997) ........... ii, 10, 11

Stewart v. LaGrand, 119 S.Ct. 1018 (1999)... 0.0 ee ee 6

Strickland v. Washington, 466 U.S. 668 (1984)... 0.0... 6... 4,7

Wainwright v. Sykes, 433 U.S. 72 (1977)... 0.0... -... passim

CONSTITUTIONAL PROVISIONS & STATUTES:

ER CES, sn cccccccevesesceseseesensene 2

MISCELLANEOUS AUTHORITIES:

iv

Amici file this brief on behalf of Petitioner, Ronald D. Edwards,

because this case presents an issue of extraordinary importance to the

States on which there is a clear conflict among the circuits. The Court

should grant the petition for writ of certiorari because allowing habeas

corpus petitioners to revive procedurally defaulted claims with another

procedurally defaulted claim violates principles of state sovereignty.

SUMMARY OF THE ARGUMENT

A federal court reviewing a state prisoner's habeas corpus petition

must respect a state court's determination that a particular claim is

procedurally barred under state law. Wainwright, 433 U.S. at 90-91.

When the state court has “clearly and expressly” stated that its judgment

rests on a state procedural bar, a presumption arises that the state court

decision rests on independent and adequate state law grounds. Harris v.

Reed, 489 U.S. 255, 263 (1989). The purpose behind the independent

and adequate state law doctrine is “to accord appropriate respect to the

sovereignty of the states in our federal system.” County Court of Ulster

County, New York v. Allen, 442 U.S. 140, 154 (1979). Consequently, a

federal court's disregard for a state procedural default greatly taxes the

States because it: |) improperly threatens the finality of criminal

convictions, and 2) frustrates the states’ sovereign power to punish

criminal offenders and their good faith efforts to honor constitutional

rights. Murray, 477 U.S. at 487; Coleman, 501 U.S. at 748. Because of

the circuit split on this important issue, the Court should grant the

petition for writ of certiorari to hear this case.

ARGUMENT

lL. THE PROCEDURAL DEFAULT DOCTRINE IS FOUNDED ON

PRINCIPLES OF COMITY AND FEDERALISM.

The Sixth Circuit's conclusion that “[p]rinciples of comity do not

require placing a procedural default analysis on claims asserted as cause”

misinterprets this Court's procedural default jurisprudence. It is true that

the doctrines of exhaustion and procedural default are distinct, but they

share a common foundation on long-standing principles of federalism.

Murray, 477 U.S. at 495 (“[T]he principles of comity and finality . . .

inform the concepts of cause and prejudice.”), see also Wainwright, 433

U.S. at 81 (“[ I]t is a well-established principle of federalism that a state

decision resting on an adequate foundation of state substantive law is

immune from review in the federal courts.”); Coleman, 501 U.S. at 731

(“[T}he exhaustion requirement is also grounded in principles of

comity.”); Picard v. Connor, 404 U.S. 270, 275 (1971) (“Comity ts the

underlying rationale for the exhaustion requirement.”).

The court of appeals wrongly concluded that merely imposing the

exhaustion requirement on claims asserted as “cause” for a procedural

default sufficiently ensures that the state court has had the first

opportunity to review the claims. Carpenter, 163 F.3d at 945. In fact,

a claim that is procedurally defaulted is not reviewed on the merits by the

state courts. This Court explicitly founded the procedural default

doctrine on principles of comity and federalism. Coleman, 501 U.S. at

730. The Harris Court explicitly established the adequate and

independent state ground doctrine to demonstrate respect for state

procedural rules. Harris, 489 U.S. at 264. Like a petitioner who has

failed to exhaust state court remedies, a petitioner who has procedurally

defaulted his claims in state court has deprived the state of the

opportunity to review those claims. Coleman, 501 U.S. at 732.

The doctrine of exhaustion is a statutory prerequisite to obtaining

federal habeas review of a constitutional claim. 28 U.S.C. §2254(b)

(1999). Similarly, the doctrine of procedural default is a common-law

condition precedent to federal habeas review. Murray, 477 U.S. at 517

(Brennan, J., dissenting); see also Harris, 489 U.S. at 259. These two

requirements must be independently met before a federal court will

review a federal claim that was first presented to the state courts.

Consequently, the Sixth Circuit's finding that “[t}here is no additional

requirement beyond exhaustion in order for a petitioner to utilize

ineffective assistance of appellate counsel as cause for the procedural

default of an independent claim” is wrong. Carpenter, 163 F.3d at 945.

A careful review of this Court's procedural default jurisprudence shows

the lower court has made a glaring error. Federalism concerns demand

that a federal court abstain from reviewing a claim when the state court

relied on a procedural bar for dismissing the very same claim. Coleman,

501 U.S. at 729-30.

Il. THE PROCEDURAL DEFAULT DOCTRINE DICTATES A “CAUSE AND

PREJUDICE” ANALYSIS ON ALL CLAIMS PROCEDURALLY

DEFAULTED IN STATE Cour’.

A procedural default occurs when a criminal defendant fails to

comply with a state procedural rule. Wainwright, 433 U.S. at 82-84.

Generally, a state court will not review the merits of a procedurally

defaulted claim, and a federal court is likewise barred from addressing

the merits of the claim. /d. In finding that a habeas petitioner can use a

procedurally defaulted ineffective assistance of counsel claim as cause

for the procedural default of another claim, the court of appeals has

erroneously opened the federal courthouse doors to state prisoners with

defaulted claims. This Court’s decisions in Wainwright, Murray, Harris,

and Coleman compel a cause and prejudice analysis on a procedurally

defaulted ineffective assistance of counsel claim before it can serve as

“cause” for another procedurally defaulted claim.

In Wainw; ight, the Court held that to obtain federal habeas review of

a constitutional claim that has been procedurally defaulted under state

rules, a petitioner must show cause for the default and resultant prejudice.

433 U.S. at 87. The Court explicitly left open the question of the

“precise definition of the ‘cause ’-and-‘prejudice’ standard.” /d. at 88-91.

This open question was revisited in Murray.

In Murray, the habeas petitioner, Carrier, procedurally defaulted his

claim that the trial court erred in denying his discovery request for the

victim’s statements because he failed to present the issue on direct

appeal. 477 U.S. 482-83. Carrier raised the discovery claim for the first

time in his pro se state habeas petition. The state trial court dismissed

the claim based on the procedural default, and the Virginia Supreme

Court denied certiorari. Carrier raised the issue in his federal petition,

which the federal district court dismissed as procedurally barred. On

appeal, Carrier argued that counsel had mistakenly omitted the claim on

direct appeal, and this error was “cause” for the procedural default. The

court of appeals reversed and remanded holding that a petitioner need

only show that a procedural default was due to counsel's “ignorance or

inadvertence rather than from a deliberate tactical decision.” This Court

decided that the court of appeal’s standard was incorrect.

Carrier asked the Court to establish a lesser standard of counsel error,

i.e., mistake or inadvertence, to serve as “cause” for a procedural default

on appeal. /d. at 490. The Court flatly rejected that proposition and held

that only constitutionally deficient performance could constitute cause

for a procedural default. /d. at 492. Accordingly, in Murray this Court

firmly held that constitutionally ineffective assistance of counsel as

established in Strickland v. Washington, 466 U.S. 668 (1984), can serve

as “cause” for a procedural default of another claim provided that the

ineffective assistance of counsel claim was independently raised in state

courts. /d. at 488-89.

Carrier had not raised an independent claim of ineffective assistance

of counsel in state court. In fact, the Court found that Carrier “disavowed

any claim that counsel's performance on appeal was so deficient as to

make out an ineffective assistance claim.” 477 U.S. at 497.

Consequently, because the Court found that Carrier was not raising an

ineffective assistance of counsel claim for the default of his discovery

issue, Carrier could not establish “cause” and the discovery claim was

procedurally barred. /d.

In Harris, the Court found that federal habeas review of the

petitioner's ineffective assistance claim was not precluded because the

state appellate court, although mentioning a state procedural default, had

addressed the substantive merits in rejecting the claim. 489 U.S. at 266.

The Court held that “[a] procedural default does not bar consideration of

a federal claim on either direct or habeas review unless the last state court

rendering a judgment in the case ‘clearly and expressly’ states that its

judgment rests on a state procedural bar.” /d. at 263. In other words,

Harris established a presumption against an adequate and independent

state law ground to support the state's decision when the last state court

fails to explicitly state its reliance on a procedural default.

In Coleman, the petitioner filed an untimely notice of appeal from the

state habeas court's adverse ruling. 501 U.S. at 727. The state moved to

dismiss the appeal on the ground that the notice of appeal had not been

filed within the time prescribed by a state procedural rule. /d. at 727-28.

“Upon consideration” of the state’s motion to dismiss and other

pleadings filed, the state supreme court dismissed the appeal. /d.

Because the state’s motion to dismiss was based solely upon the state's

procedural rule, this Court found that the state supreme court's dismissal

appeared to rest primarily on state law. /d. at 740-44. Thus, the Harris

presumption against adequate and independent state grounds did not

apply and the federal habeas court was barred from reviewing the claims

presented in the state habeas proceeding. /d. at 729-30, 740-44.

Contrary to this Court's clear precedent, however, the Sixth Circuit

disregarded the state's procedural rules. Based on the court of appeals’s

opinion, any defaulted ineffective assistance of counsel claims can be

resurrected in federal court by serving as “cause” for other

independently procedurally defaulted claims. Acceptance of the Sixth

Circuit's interpretation of Murray would subvert the important interests

of finality, comity, and federalism underlying the Court's procedural

default jurisprudence.

The Sixth Circuit's interpretation of this Court's precedent is

unfounded. The court of appeals concluded that the Murray Court was

merely concerned with exhaustion of an ineffective assistance of counsel

claim before it could serve as “cause” for another procedurally defaulted

claim. Carpenter, 163 F.3d at 944. While it is true that the Murray

Court stated that an ineffective assistance of counsel claim would need

to be presented as an independent claim to the state courts before it could

serve as “cause” for a separate procedurally defaulted claim, the Court

expressed no opinion as to whether a procedurally defaulted ineffective

assistance of counsel claim could serve as “cause.” 477 U.S. at 489.

Indeed, in Murray, the petitioner was not even alleging an ineffective

assistance of counsel claim. 477 U.S. at 483, 497. Murray cannot be

interpreted in a vacuum. It must be considered in conjunction with the

Court's other procedural default cases, i.e., Wainwright, Harris, and

Coleman.

The Sixth Circuit held that Murray did not impose a procedural

default requirement for claims asserted as “cause,” thus it refused to

apply a cause and prejudice analysis on the defaulted ineffective

assistance of counsel claim. The court of appeals’s reasoning ignores the

states’ legitimate interest in the finality of their convictions and

undermines the states’ right to punish criminal defendants. Coleman, 501

U.S. at 748. This reasoning is contrary to the reasoning employed by this

Court in Wainwright, Harris, and Coleman, although none of the cases

directly addressed whether a procedurally defaulted ineffective assistance

of counsel claim can serve as “cause” for another defaulted constitutional

claim.' This issue should be squarely addressed by the Court.

Ill. THis CASE REQUIRES IMMEDIATE REVIEW TO PROTECT THE

STATES’ INTERESTS IN ENFORCEMENT OF THEIR PROCEDURAL

RULES.

It is firmly established that a federal court cannot review a claim that

has been explicitly ruled procedurally barred by the state’s highest court

considering the claim. Harris, 489 U.S. at 261-62; Coleman, 501 U.S.

1. In a recent opinion, the Court stated that an ineffective assistance of

counsel claim could not serve as “cause” for the procedural default of an Eighth

Amendment claim because “the ineffective assistance of counsel [was], itself,

procedurally defaulted.” Stewart v. LaGrand, 119 S.Ct. 1018, 1021 (1999).

Also, the Court indicated that the defaulted ineffective assistance claim was

subject to the “cause and prejudice” standard. /d. Although the Court did not

refer to any prior procedural default cases, the Court's reasoning in Stewart

directly contradicts the Sixth Circuit's reasoning. The Court should take this

case to remove any uncertainty as to the Court's holding in Stewart, and reaffirm

the resounding principle of the independent and adequate state ground doctrine.

6

at 729-30. When a state court explicitly relies on a procedural bar to

deny relief, a state prisoner may not obtain federal habeas relief unless

he can demonstrate cause for the default and actual prejudice attributable

to the default, or that the federal court's failure to consider the claim will

result in a miscarriage of justice. Coleman, 501 U.S. at 750; Wainwright,

433 US. at 87.

Murray established that when counsel is ineffective under the

standard of Strickland, this may serve as “cause” within the meaning of

Wainwright. 477 U.S. at 488-89. Also, Coleman reiterated that

“counsel's ineffectiveness will constitute cause only if it is an

independent constitutional violation.” 501 U.S. at 755. Therefore, an

ineffective assistance of counsel claim cannot serve as “cause” for the

procedural default of another claim, unless counsel's performance was

constitutionally deficient. Murray, 477 U.S. at 492. Although this Court

has cautioned that an ineffective assistance of counsel claim must have

first been presented to the state courts as an independent claim in order

for it to serve as “cause” in a federal court proceeding, it has not

explicitly answered whether a procedurally defaulted ineffective

assistance of counsel claim may serve as “cause.” Logically, it should

not.

Before finding that an ineffective assistance of counsel claim

constitutes “cause” for another procedurally defaulted issue, a federal

court must find that counsel’s performance was constitutionally deficient.

Coleman, 501 U.S. at 755. When a federal court addresses the merits of

an ineffective assistance of counsel claim independently, it is reviewing

a claim that the state courts never addressed because of the procedural

default. The court of appeals acknowledged that independent review of

the ineffective assistance of counsel claim was barred because the claim

was defaulted in state court, yet found that Murray creates an exception

and allows the claim to serve as “cause” for another procedurally

defaulted claim when the claim is merely exhausted. Carpenter, 163

F.3d at 945 (“There is no additional requirement beyond exhaustion in

order for a petitioner to utilize ineffective assistance of appellate counsel

as cause for the procedural default of an independent claim.”).

The court of appeals’s reasoning defies logic In this case, the state

court's denial of relief is based on a state procedural default. Carpenter,

163 F.3d at 942. By failing to satisfy a state procedural requirement,

Carpenter forfeited his right to review of the merits of his federal claim.

The court of appeals’s opinion overlooks well-established precedent

requiring that it conduct a “cause” and “prejudice” analysis on

Carpenter's defaulted claim before using the ineffective assistance of

counsel claim as “cause” for another defaulted claim.

In contrast, the district court did apply a cause and prejudice analysis

to the defaulted ineffective assistance of counsel claim and found that the

procedural bar was not based on an adequate and independent state

ground.’ Carpenter, 163 F.3d at 943. The district court’s analysis is

consistent with procedural bar jurisprudence. The court of appeals

derails this well-established precedent by deciding that a procedurally

defaulted ineffective assistance of counsel claim can constitute “cause”

for another procedurally defaulted claim without a cause and prejudice

analysis on the ineffective assistance of counsel claim.

Because Carpenter's claim was dismissed on an independent and

ade, uate state law ground, “resolution of any independent federal ground

2. The district court's decision was based on the court's belief that Ohio had

inconsistently applied the “good cause” standard in OHIO R. App. P. 26. The

court stated that in its review of Ohio cases, good cause was almost never found

in some appellate districts, while in others, a standard was used that nearly

always allowed a finding of good cause. Additionally, the district court noted

that the Ohio Supreme Court had offered little guidance in this area. As a result,

the district court found that Ohio did not have an adequate state procedural rule

prohibiting subsequent review of federal constitutional claims in federal court.

Carpenter v. Mohr, No. C-2-96-447 (S.D. Ohio Mar. 12, 1997). Because the

Sixth Circuit did not agree with nor review the district court's finding, this Court

should grant the petition and reverse and remand to afford the Sixth Circuit the

opportunity to review this part of the district court's decision.

ED ee em

for the decision could not affect the judgment and would therefore be

advisory.” Coleman, 501 U.S. at 729. In fact, the procedural history of

this case emphasizes the fundamental wisdom of barring federal habeas

review based on an independent and adequate state ground of decision.

The state courts never addressed Carpenter's constitutional complaint of

ineffective assistance of appellate counsel because he failed to raise it in

a procedurally correct manner. By deciding the issue, the court of

appeals decided an issue that the state courts never considered and,

potentially, given an award of relief broader than the Supreme Court

could have permitted on direct review of the conviction. These actions

are inappropriate for a court bound by federalism and comity.

IV. THIS CASE HAS CREATED CONFUSION AND CONFLICT AMONG THE

LOWER Courts.

Of the six courts of appeals that have addressed this issue, the Sixth

Circuit stands alone in its conclusion that a procedurally defaulted

ineffective assistance of counsel claim can serve as “cause™ for another

defaulted claim. The Sixth Circuit's interpretation of Murray adds

confusion to the procedural default doctrine. As previously discussed,

the district court applied a cause and prejudice analysis to Carpenter's

defaulted ineffective assistance of counsel claim. Carpenter, 163 F.3d

at 943-44. Upon review, the district court determined that the state

procedural rule was not an adequate and independent state ground,

therefore it found that the ineffective assistance of counsel claim could

serve as “cause” for the procedurally defaulted sufficiency of the

evidence claim. The court of appeals found that the district court erred

in applying a “cause and prejudice” analysis on the defaulted ineffective

assistance of counsel claim. /d.

Similarly, in Justus v. Murray, 897 F.2d 709, 712 (CA4 1990), the

district court employed the same reasoning as the Sixth Circuit in finding

that a procedurally defaulted ineffective assistance of counsel claim

could serve as cause under Murray because the claims were exhausted.

On appeal, the Fourth Circuit rejected the district court’s reasoning and

held that Wainwright and Harris compel a “cause and prejudice” analysis

before a procedurally defaulted ineffective assist ‘f counsel claim

can serve as cause for another procedurally defau: laim. /d. at 713.

In juxtaposition, these two cases show that the Fou —_ Circuit supports

the district court’s reasoning in Carpenter, and the Sixth Circuit favors

the district court's reasoning in Justus.

Other lower courts that have faced this double-default dilemma are

also in conflict with the Sixth Circuit's reasoning. In Hill v. Jones, the

Eleventh Circuit flatly rejected petitioner’s argument that Murray allows

an ineffective assistance of counsel claim to serve as “cause” whenever

the claim is exhausted as an independent claim regardless of whether it

is also procedurally defaulted. 879 F.2d at 1029. The court concluded

that Murray and “the rest of the Supreme Court’s jurisprudence on

procedural default dictate that procedurally defaulted claims of

ineffective assistance cannot serve as cause to excuse a default of a

second claim.” /d. at 1030. “Instead, [Murray] requires a claim of

ineffective assistance be both exhausted and not defaulted in state court

before it can be asserted as cause.” /d. at 1031.

In Reyes v. Keane, the petitioner argued that he satisfied “cause” for

procedurally defaulting a jury instruction claim because his trial counsel

rendered ineffective assistance. 118 F.3d at 138-39. Recognizing that an

ineffective assistance of counsel claim can constitute “cause,” the Second

Circuit, nonetheless, found that petitioner failed to raise his ineffective

assistance of counsel claim in state court. /d. at 139. Also, the

ineffective assistance claim was procedurally defaulted because pursuant

to state law presenting the claim to the state court would be futile. /d.

Thus, the ineffective assistance of counsel claim was both exhausted and

procedurally defaulted. Refusing to allow the ineffective assistance

claim to serve as cause, the Second Circuit aptly stated:

Murray refused to except from the doctrine of exhaustion a claim

brought as cause for a procedural default. We think the Supreme

Court's rationale . . . equally compels the conclusion that a claim

of cause for procedural default is not itself excepted from the

doctrine of procedural default.

10

A Ea ty

Id. at 140 (citations omitted). Accordingly, the court held that a

procedurally defaulted ineffective assistance of counsel claim could not

serve as cause for a second procedurally defaulted claim. /d.

In Pisciotti v. Washington, the Seventh Circuit also addressed the

question posed in this petition. The court of appeals stated that before an

ineffective assistance of counsel claim could establish “cause” for the

default of another issue, “the ineffective-assistance claim must have been

presented to the state courts in the manner required by state procedural

rules.” 143 F.3d at 300. Finally, in Harris v. Lockhart, the Eighth

Circuit also held that a defaulted ineffective assistance of counsel claim

could not serve as “cause” for the default of his other claims. 948 F.2d

at 452.

The lower courts not governed by controlling precedent in their

circuit are free to pick and choose the preferred reasoning from among

these decisions. The Sixth Circuit's reasoning is at odds with the other

circuits that have addressed the issue to date. Because the state pays a

high price’ when a federal court reviews a claim that is barred by the

state courts, the Court should not let the Sixth Circuit's decision stand.

The reasoning employed by the lower court is fundamentally flawed and

will undermine a long history of respect for the states’ procedural rules.

3. As the Court stated in Coleman:

most of the price paid for federal review of state prisoner

claims is paid by the State. When a federal habeas court

considers the federal claims of a prisoner in state custody for

independent and adequate state law reasons, it is the State that

must respond. It is the State that pays the price in terms of the

uncertainty and delay added to the enforcement of its criminal

laws. It is the State that must retry the petitioner if the federal

courts reverse his conviction.

Coleman, 501 U.S. at 738-39.

CONCLUSION

For these reasons, Amici respectfully request that the Court grant the

petition for writ of certiorari.

Respectfully submitted,

JOHN CORNYN

Attorney General of Texas

ANDY TAYLOR

First Assistant Attorney General

SHANE PHELPS

Deputy Attorney General

for Criminal Justice

GREGORY S. COLEMAN

Solicitor General

Counsel of Record

IDOLINA G. MCCULLOUGH

Assistant Solicitor General

Office of the Attorney General

P.O. Box 12548

Austin, Texas 78711-2548

(512) 936-1823

Counsel for Amici Curiae

12