# Amicus Curiae Brief — Edwards v. Carpenter

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0287%3A05

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2000
- **Citation:** 529 U.S. 446

## Text

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

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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
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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
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Ill. This Case Requires Immediate Review to Protect the
States’ Interests in Enforcement of Their Procedural

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IV. This Case Has Created Confusion and Conflict Among
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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:
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0287%3A05. Public record. Not legal advice.