Amicus Curiae Brief — Edwards v. Carpenter

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Doc 20 93} -—

No. 98-2060

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Supreme Court of the United States

RONALD D. EDWARDS, WARDEN,

r Petitioner,

ROBERT W. CARPENTER,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

BRIEF OF AMICI CURIAE STATES OF TEXAS, ALABAMA, ALASKA,

ARKANSAS, ARIZONA, CALIFORNIA, COLORADO, CONNECTICUT,

DELAWARE, FLORIDA, GEORGIA, ILLINOIS, INDIANA, LOWA,

KANSAS, LOUISIANA, MARYLAND, MINNESOTA, MISSISSIPPI,

MISSOURI, MONTANA, NEBRASKA, NEVADA, NEW HAMPSHIRE,

NEW JERSEY, NEW MEXICO, OKLAHOMA, SOUTH CAROLINA,

SOUTH DAKOTA, TENNESSEE, UTAH, VERMONT, WASHINGTON,

WEST VIRGINIA AND WISCONSIN 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) 936-1700

for Criminal Justice

Counsel for Amici Curiae

BILL PRYOR

Attorney General of

Alabama

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

ROBERT A.

BUTTERWORTH

Attorney General of

Florida

THURBERT E. BAKER

Attorney General of

Georgia

JAMES E. RYAN

Attorney General of

Illinois

JEFFREY A. MODISETT

Attorney General of

Indiana

THOMAS J. MILLER

Attorney General of Iowa

CARLA J. STOVALL

Attorney General of

Kansas

RICHARD P. IEYOUB

Attorney General of

Louisiana

J. JOSEPH CURRAN, JR.

Attorney General of

Maryland

MIKE HATCH

Attorney General of

Minnesota

MIKE MOORE

Attorney General of

Mississippi

JEREMIAH W. (JAY)

NIXON

Attorney General of

Missouri

JOSEPH P. MAZUREK

Attorney General of

Montana

DON STENBERG

Attorney General of

Nebraska

FRANKIE SUE DEL PAPA

Attorney General of

Nevada

PHILIP T. MCLAUGHLIN

Attorney General of

New Hampshire

JOHN J. FARMER, JR.

Attorney General of

New Jersey,

PATRICIA A. MADRID

Attorney General of

New Mexico

W.A. DREW EDMONDSON

Attorney General of

Oklahoma

CHARLES M. CONDON

Attorney General of

South Carolina

MARK BARNETT

Attorney General of

South Dakota

PAUL G. SUMMERS

Attorney General &

Reporter of Tennessee

JAN GRAHAM

Attorney General of Utah

WILLIAM H. SORRELL

Attorney General of

Vermont

CHRISTINE O. GREGOIRE

Attorney General of

Washington

DARRELL V. MCGRAW,

JR., Attorney General of

West Virginia

JAMES E. DOYLE

Attorney General of

Wisconsin

STATEMENT OF AMICI CURIAE INTEREST

Texas, and the 34 other states that join in this brief,

urge the Court to reverse the decision of the Sixth Circuit

in Carpenter v. Mohr, 163 F.3d 938, 945-46 (CA6 1998),

cert. granted sub nom. Edwards v. Carpenter, 120 S.Ct.

444 (U.S. Nov. 8, 1999) (No. 98-2060). This case

presents 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’s decision overlooks long-settled

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 defaulted 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, undermines

the states’ legitimate interests in having the first

opportunity to right their mistakes, and thus offends state

sovereignty.

The Sixth Circuit's decision undercuts long-standing

principles of comity. If left standing, the court of

appeals’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.

One of the purposes of the procedural default doctrine

is to acknowledge 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 (1991). 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). Amici have a strong interest in

ensuring that their procedural rules are accorded proper

deference by federal courts.

TABLE OF CONTENTS

Statement of Amici Curiae Interest ................ i

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Summary of the Argument ..................... l

SE So dc nebesdecuedadessdeedsuncseuas 2

I. The Procedural Default Doctrine Is

Founded on Principles of Comity and

iin a ois a 2

Il. The Procedural Default Doctrine Dictates a

“Cause and Prejudice” Analysis on All

Claims Procedurally Defaulted in State

Ee an cbesactcdidadck eka @timeobbunedcex 3

Ill. A Federal Court Cannot Ignore A

Procedural Default in State Court .......... 8

IV. The Principles of Federalism Dictate that a

Federal Court Should Respect the States’

Interests in Enforcement of Their

er 11

OE ee ee oe 15

TABLE OF AUTHORITIES

CASES:

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

cert. granted sub nom. Edwards v. Carpenter,

120 S.Ct. 444 (U.S. Nov. 8, 1999)

ee eee passim

Coleman v. Thompson, 501 U.S. 722 (1991) ... passim

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

Se GE biicoxiduscecnas tecesianes l

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

Hill v. Jones, 81 F.3d 1015 (CA11 1996),

cert. denied, 519 U.S. 1119 (1997) ............ 14

Justus v. Murray, 897 F.2d 709 (CA4 1990) ... 13,14

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

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

Reed v. Ross, 468 U.S. 1 (1984) ................ ll

Stewart v. LaGrand, 119 S.Ct. 1018 (1999) ........ 8

Strickland v. Washington, 466 U.S. 668 (1984) ... 5,9

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

STATUTES:

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Amici file this brief because this case presents an issue

of importance to the states. The Sixth Circuit's decision

makes the states highly susceptible to a new flow of

federal habeas litigation, reopening claims that are barred.

The Court should reverse 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 [s]tates 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: 1) improperly threatens the finality of criminal

convictions; and 2) frustrates the states’ good faith efforts

to honor constitutional rights and their sovereign power to

punish criminal offenders. Murray, 477 U.S. at 487;

Coleman, 501 U.S. at 748. Because the Sixth Circuit’s

decision violates the fundamental principles of federalism,

it should be reversed.

ARGUMENT

I. 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 of 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]his exhaustion

requirement is also grounded in principles of comity.”);

Picard v. Connor, 404 U.S. 270, 275 (1971) (“Comity is

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. Harris explicitly

established the adequate and independent state ground

2

doctrine to demonstrate respect for state procedural rules.

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 was wrong in holding 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.”

Carpenter, 163 F.3d at 945. Federalism concerns demand

that a federal court abstain from reviewing a claim when

the state court relied on a procedural bar for dismissing the

same claim. Coleman, 501 U.S. at 729-30.

II. THE PROCEDURAL DEFAULT DOCTRINE DICTATES

A “CAUSE AND PREJUDICE” ANALYSIS ON ALL

CLAIMS PROCEDURALLY DEFAULTED IN STATE

COURT.

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

3

will not review the merits of a procedurally defaulted

claim, and a federal court is likewise barred from

addressing the merits of the claim. Jd. 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

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 Wainwright, 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 87-91. 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. at

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 that 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 appeals’ 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. Id. at 490.

The Court flatly rejected that proposition and held that

only constitutionally deficient performance could

constitute cause for a procedural default. Jd. at 492. The

Court 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 if the ineffective assistance of

counsel claim was independently raised in state court.

Murray, 477 U.S. 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.” Id. 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.” Jd. 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. Id. 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.

Here, however, the Sixth Circuit disregarded the

State's procedural rules. Under the court of appeals’s

opinion, a defaulted ineffective assistance of counsel claim

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 Murray 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 Murray

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 did not decide

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,” and thus, refused to apply a cause and prejudice

analysis on the defaulted ineffective assistance of counsel

claim. The court of appeals’s reasoning i gnores 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. Although Wainwright, Harris,

and Coleman, did not directly address whether a

procedurally defaulted ineffective assistance of counsel

claim can serve as “cause” for another defaulted

constitutional claim, the Sixth Circuit’s rationale is

inconsistent with the Court’s reasoning in those cases. '

Ill. A FEDERAL COURT CANNOT IGNORE A

PROCEDURAL DEFAULT IN STATE COURT.

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. at 729-30.

When a state court explicitly relies on a procedural bar to

deny relief, a state prisoner may not obtain federal habeas

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. Jd. 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 remove any uncertainty as to its holding in Stewart, and

reaffirm the independent and adequate state ground doctrine.

8

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 U.S. 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 and

resulted in prejudice. Murray, 477 U.S. at 492. Although

the 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 mav serve as “cause.”

Logically, it should not.

Before finding that an ineffective assistance of

counsel claim constitutes “cause” for another procedurally

defaulted claim, a federal court must find that counsel’s

performance was constitutionally deficient. Coleman, 501

U.S. at 755. When a federal court independently

addresses the merits of a procedurally defaulted ineffective

assistance of counsel claim, it is reviewing a claim that the

State courts never addressed. 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 it found that Murray

creates an exception and allows the claim to serve as

“cause” for another procedurally defaulted claim.

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 was based on a state

procedural default. Carpenter, 163 F.3d at 942. By

failing to satisfy state procedural requirements, 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.

Because Carpenter’s claim was dismissed on an

independent and adequate state law ground, “resolution of

any independent federal ground 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

2. In contrast, the district court did apply a cause and

prejudice analysis to the defaulted ineffective assistance of

counsel claim. Carpenter, 163 F.3d at 943. The district court’s

analysis is Consistent with procedural bar jurisprudence.

10

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,

gave an award of relief broader than this Court could have

permitted on direct review of the conviction. Those

actions were inappropriate for a court bound by federalism

and comity.

IV. THE PRINCIPLES OF FEDERALISM DICTATE THAT A

FEDERAL COURT SHOULD RESPECT THE STATES’

INTERESTS IN ENFORCEMENT OF THEIR

PROCEDURAL RULES.

The Sixth Circuit’s conclusion that a procedurally

defaulted ineffective assistance of counsel claimcan serve

as “cause” for another defaulted claim adds confusion to

the procedural default doctrine. On review of Carpenter’ s

federal habeas petition, 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. On appeal Carpenter successfully argued that the

district court erred because Murray “only imposed an

exhaustion requirement on the cause asserted by the

habeas petitioner in connection with the procedural default

of the primary habeas claim.” Carpenter, 163 F.3d at 944.

The Sixth Circuit’s decision fails to properly respect

Ohio's state procedural rules. In Reed v. Ross, 468 U.S. 1,

10 (1984), the Court admonished federal courts to respect

11

a state court’s finding of procedural default under its own

laws:

“The State’s interest in the integrity of its rules

and proceedings and the finality of its judgments

. . would be undermined if the federal courts

were too free to ignore procedural forfeitures in

state court.” Id.

The Sixth Circuit’s understanding of Murray, i.e.,

only requiring an ineffective assistance of counsel claim

to be raised independently in state court to satisfy the

principles of comity, misses the point of the Court’s

concerns. Carpenter, 163 F.3d at 944. Murray’s concern

with comity was based on giving the states the first

opportunity to review and decide the merits of a

constitutional claim. 477 U.S. at 489. When a claim

raised in state court is found to be procedurally defaulted

because of a failure to comply with the state’s procedural

rules, itis exhausted and procedurally defaulted. The state

courts do not review the merits of a procedurally defaulted

claim.

The Sixth Circuit determined that Carpenter’s

ineffective assistance of counsel claim was meritorious

and was sufficient “cause” to overcome his procedurally

defaulted sufficiency of the evidence claim. Carpenter,

163 F.3d at 947. A finding of constitutionally ineffective

assistance of counsel is a decision on the merits. Thus, the

Sixth Circuit’s review of the ineffective assistance of

counsel claim circumvents the Ohio state court’s finding

of a procedural default.

12

The Sixth Circuit’s decision resurrects Carpenter’s

ineffective assistance of counsel claim after that

procedurally defaulted claim was dead and gone in state

court. To further add insult to injury, the federal court has

determined that Carpenter is entitled to relief unless the

State court holds a new culpability hearing. Carpenter,

163 F.3d at 948. These actions exemplify the harm to the

states when federal courts ignore state procedural rules.

The “cause and prejudice” standard established in

Coleman signifies far greater respect for state procedural

rules and should be applied to a procedurally defaulted

ineffective assistance of counsel claim before it can serve

as “cause” for another procedurally defaulted claim.

Other lower courts have faced this double-default

dilemna and recognized that principles of comity require

a federal court to respect a state procedural default. In

Justus v. Murray, 897 F.2d 709, 714 (CA4 1990), the

Fourth Circuit held that Wainwright and Harris compel a

“cause and prejudice” analysis before a procedurally

defaulted ineffective assistance of counsel claim can serve

as cause for another procedurally defaulted claim. /d. at

713. The court of appeals explicitly stated:

“(Claims of ineffective assistance of counsel,

like other constitutional claims, may be

precluded from federal habeas review if they

have been rejected in state court on the adequate

and independent state ground of a violation of a

state procedural rule.” Jd. at 712 (citations

omitted).

Moreover, the court recognized that to review the merits

13

of a procedurally defaulted ineffective assistance of

counsel claim would bypass the state procedural bar. Id.

at 713. The court recognized that such a result does not

square with the principles of finality, comity, and judicial

efficiency that underlie this Court’s procedural default

jurisprudence. /d.

Similarly, in Hill v. Jones, 81 F.3d 1015, 1030(CAI11

1996), cert. denied, 519 U.S. 1119 (1997), 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. /d. 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.” Jd. 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.”

Id. at 1031.

In juxtaposition to the Sixth Circuit’s decision, these

cases show a proper understanding of the Court's

exhaustion and procedural default jurisprudence and

proper deference to longstanding principles of finality,

comity, and judicial economy. Because the state pays a

14

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.

CONCLUSION

For these reasons, Amici respectfully submit that the

court of appeals’s decision should be reversed.

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.”

501 U.S. at 738-39.

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Dec. 22, 1999

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) 936-1700

Counsel for Amici Curiae

16