# Amicus Curiae Brief — Edwards v. Carpenter

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0287%3A10

## Record

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

## Text

“

Doc 20 93} -—

No. 98-2060

Iu the |
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:
em ee 3

iV

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0287%3A10. Public record. Not legal advice.