Amicus Curiae Brief — Calderon v. Angelo Morales

MOTION FILED

OCT - 6 1996

No. 96-355

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

ARTHUR CALDERON, Warden,

Petitioner,

vs.

MICHAEL ANGELO MORALES,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

MOTION FOR LEAVE TO FILE AND

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF THE PETITION

KENT S. SCHEIDEGGER

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Telephone: (916) 446-0345

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

QUESTIONS PRESENTED

1. Where a state procedural default rule contains an exception

for “good cause” or “sufficient reason,” do the inherently

uncertain contours of such a rule render it “inadequate” as an

independent state ground of decision?

2. When a claim could be denied on either the merits or the

procedural bar, does a state court’s decision to deny on the

merits Constitute an inconsistent application of the bar, rendering

the bar “inadequate” in cases where it is invoked?

3. Should the federal courts adopt such a restrictive view of the

adequacy of state procedural bars that states are encouraged to

adopt severe, rigid, exceptionless rules?

(i)

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

ARTHUR CALDERON, Warden,

Petitioner,

Ay

MICHAEL ANGELO MORALES,

Respondent.

SSS

MOTION OF AMICUS CURIAE FOR LEAVE

TO FILE BRIEF IN SUPPORT OF THE PETITION

FOR WRIT OF CERTIORARI

SSS

Pursuant to Supreme Court Rule 37.2, the Criminal Justice

Legal Foundation respectfully moves for leave to file the

accompanying brief amicus curiae in support of the petition in

this case. Counsel for petitioner has consented, but counsel for

respondent has withheld consent.

In the accompanying brief, amicus argues that the division of

opinion between the Ninth Circuit in this case and the Seventh

Circuit in Prihoda v. McCaughtry makes this case appropriate

for review on certiorari. In addition, further clarification by this

Court is needed to resolve apparent conflicts in this Court’s prior

opinions.

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJ LF) is a nonprofit

California corporation organized to Participate in litigation

relating to the criminal justice system as it affects the public

interest. CJLF seeks to bring the due process protection of the

iV

accused into balance with the rights of the victim and of society

to rapid, efficient and reliable determination of guilt and swift

execution of punishment.

The Ninth Circuit’s refusal to respect California’s procedural

default rules in Siripongs v. Calderon, 35 F. 3d 1308 (1994) and

the present case has needlessly delayed enforcement of the state’s

death penalty, reducing its deterrent effect. Those delays are

contrary to the rights of victims and society which CJLF was

formed to advance.

For the foregoing reasons, amicus requests leave to file its

brief.

October, 1996

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

ee

TABLE OF CONTENTS

QUO SUNN 5c oes vs CSS oes Be ESS i

UNOUN Gur SU ON os ee cas hee ili

TE OF CEES GUND oe ie hha I ill

Bae Oe MEI | 5 e602 eo aoa hae ee vi

ee MS GIFU Ss ks habe hc ee bin es CATS l

Sy GE TUE OE ORD ei i coe ce ncn teen wke l

PET OE OE sc ck RK ama A eA eho 2

ere PERE OTP TE ea eT Sey Fe we 3

I

The decision of the Ninth Circuit in the present case directly

conflicts with the position of the Seventh Circuit on an

important question of federal law ................ 3

| Il

| Certiorari should be granted in this case to resolve

contradictions in this Court’s earlier opinions ........ 6

iil

The approach of the Ninth Circuit establishes a perverse

incentive for states to adopt draconian policies ...... 11

I 6 oo. 5 kos OA EWR Cee eh eres 12

vi

TABLE OF AUTHORITIES

Cases

Bacigalupo v. California, 506 U. S. 802, 121 L. Ed. 2d 5,

LUD F.C; Sh Cie. oe ee ad ck Oe 5a eee 9

Barr v. Columbia, 378 U. S. 146, 12 L. Ed. 2d 766,

O46 SS, CL... 7S6 CIRO). sina vata ieee ras ees 3

Caldwell v. Mississippi, 472 U. S. 320, 86 L. Ed. 2d 231,

16 S.Ct. BRR ee: ks 0a PR eee eee —6

Coleman v. Thompson, 501 U. S. 722, 115 L. Ed. 2d 640,

See we -) t, . sre an Per. ating 8, 12

Combs v. State, 525 So. 2d 853 (1988) ............. 8

Dugger v. Adams, 489 U. S. 401, 103 L. Ed. 2d 435,

far S. 4, Sene Cee sO sane oe eee 6,7

Engle v. Isaac, 456 U. S. 107, 71 L. Ed. 2d 783,

ie S..Ce. 1550 CAS. ok SSG Se ee a et y

Francis v. Henderson, 425 U. S. 536, 48 L. Ed. 2d 149,

SB DS. GR. THOS MATER © Ose ceed bie e kee eee ee 3

Gray v. Netherland, 135 L. Ed. 2d 457,

236 3. Ck, See Clee. 4 ose eee ae erie 9, 10

Gray v. Thompson, 58 F. 3d 59 (CA4 1995) .......... )

Grubbs v. Delo, 948 F. 2d 1459 (CA8 1991).......... i)

Harris v. Reed, 489 U. S. 255, 103 L. Ed. 2d 308,

10D B Gh. Fee CEO 00 eae wa ids See eo 5,7

Hathorn v. Lovorn, 457 U. S. 255, 72 L. Ed. 2d 824,

has DS. CE Be Cee co aa ae ea a eee een ees 6

Hutto v. Davis, 454 U. S. 370, 70 L. Ed. 2d 556,

S08 3. toh. Fee Cee A wo ce Co eee ake 6

In re Ciark, 5 Cal. 4th 750, 21 Cal. Rptr.2d 509,

Dae Es Oe SEE CE oe AOR CREA ee eS 12

Vii

Johnson v. Mississippi, 486 U. S. 578, 100 L. Ed. 2d 575,

Se as So PE CUED | 66 0's ac Sad eC ee ae ele 7

Kolender v. Lawson, 461 U. S. 352, 75 L. Ed. 2d 903,

Se We ROMO hiv gd Biera dd ee ol vet ies 5

Lewis v. Jeffers, 497 U. S. 764, 111 L. Ed. 2d 606,

(Oe We te SEES bv dace CRM Ne Ce Van CR 5

Messer v. Roberts, 74 F. 3d 1009 (CAI0 1996) ........ 6

Michigan v. Long, 463 U. S. 1032, 77 L. Ed. 2d 1201,

We ey CRM Sk a aus Caches ea beckon 7

Morales v. Calderon, 85 F. 3d 1387

Pe Ne ea ak bees a Rng 1,2, 3,4, 1!

Murray v. Carrier, 477 U. S. 478, 91 L. Ed. 2d 397,

PO: See PUPAE 8S vas hia occ uasse 11

Parke v. Raley, 506 U. S. 20, 121 L. Ed. 2d 391,

Ss a RO A. See ge a eres vk v's bas be 5

People v. Morales, 48 Cal. 3d 527, 257 Cal.Rptr. 64,

ee ee ee l

Prihoda v. McCaughtry, 910 F. 2d 1379

GO als a ek ae Bye. oe 28

Reed v. Ross, 468 U. S. 1, 82 L. Ed. 2d 1,

Pe EO Nd on Ch Cay Ga eck ge 9

Richmond v. Lewis, 506 U. S. 40, 121 L. Ed. 2d 411,

0A ee SE OOO oe. bt hs oe b ova bak 4

Sandin v. Conner, 132 L. Ed. 2d 418,

Ree CE OU aw Oe 8 ae Mb bw we 11

Smith v. Murray, 477 U. S. 527, 91 L. Ed. 2d 434,

Es I ia Ses Cate Gad BW OES ee 9

Strickland v. Washington, 466 U. S. 668, 80 L. Ed. 2d 674,

is tt EI, cordate oak ete ue oicsreye A 0 8 8

Teague v. Lane, 489 U. S. 288, 103 L. Ed. 2d 334,

Neoccite: bene thnk cee MRO Re ee ne 8

Vill

Tuilaepa v. California, 129 L. Ed. 2d 750,

A546 GB, Ch, SOO CTR vee re 9

Williams v. Georgia, 349 U. S. 375, 99 L. Ed. 1161,

Fe Mp Wks OEE UEEE) «66 oe wee ee th wee 7

Wright v. Georgia, 373 U. S. 284, 10 L. Ed. 2d 349,

me we GA. TCE) Oe ee ROT eh wai 7

Rule of Court

PUTO COR TRUE A bss oe i bdo das es ke ;

United States Statutes

Se a Sows Re oO Ce a ed hae 10, 11

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

ARTHUR CALDERON, Warden,

Petitioner,

vs.

MICHAEL ANGELO MORALES,

Respondent.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF THE PETITION FOR

WRIT OF CERTIORARI

SUMMARY OF FACTS AND CASE

Fifteen years ago, Michael Morales raped, tortured, and

murdered Terri Winchell. He was convicted of these crimes and

sentenced to death in 1983. People v. Morales, 48 Cal. 3d 527,

539-541, 770 P. 2d 244, 248-249 (1989). The conviction and

sentence were affirmed seven years ago. /d., at 573, 770 P. 2d,

at 271. At about the same time, the California Supreme Court

adopted standards requiring habeas petitions in capital cases to

be filed in a timely manner. See Morales v. Calderon, 85 F. 3d

1387, 1388 (CA9 1996).

Even though California provides state habeas counsel in

Capital cases, Morales filed his first habeas petition in federal

court, including 32 claims never presented in state court. Jbid.

The federal district judge dismissed these claims without

prejudice to allow their exhaustion in state court. /bid.

Morales then filed two habeas petitions in the California

Supreme Court, three and one-half years after affirmance on

FALLS LIAL SI MIP PEI TTI NE BL I EE

direct appeal and after adoption of the California standards. The

state court denied these petitions both on the merits and as

untimely. /d., at 1389-1390.

The district court found that the denial was based on

adequate and independent state grounds and that Morales had not

met the requirements for exceptions to the procedural default

rule. /d., at 1389. Hence, it dismissed these claims. /bid. The

Court of Appeals reversed, finding that California’s procedural

default rule was not “clear, consistently applied, and well-

established.” /d., at 1393.

SUMMARY OF ARGUMENT

The decision below conflicts with the decision of the Seventh

Circuit in Prihoda v. McCaughtry. That case recognized the

value of flexible rules of waiver of default in state habeas cases

and refused to declare a state rule “inadequate” because of the

existence of such waivers. The present opinion, in contrast, will

not regard a state rule as “adequate” unless the federal court can

decide for itself whether the state courts are applying their own

law correctly.

Certiorari should also be granted to clear up contradictions

in this Court's prior opinions. The cursory, footnote treatment

of the issue in Dugger v. Adams and the apparent conflict

between the result of that case and language in Hathorn v.

Lovorn will only breed confusion in lower courts until this Court

provides further explanation.

The approach of the Ninth Circuit in the present case

provides California with a powerful incentive to adopt a rigid

rule of default with no exceptions. This approach should be

rejected so that the state can consider late petitions when justice

requires without losing the benefits of its procedural default rules

in the bulk of cases.

ARGUMENT

I. The decision of the Ninth Circuit in the present case

directly conflicts with the position of the Seventh Circuit on

an important question of federal law.

A case is appropriate for review on certiorari “[wJhen a

United States court of appeals has rendered a decision in conflict

with the decision of another United States court of appeals on the

same matter . . . .” Supreme Court Rule 10.1. The present case

is an exemplar of such a conflict.

Balancing the need for finality against the need to correct

fundamental injustices, this Court has determined that a habeas

petitioner seeking to raise a defaulted claim must show “cause”

for the default. See Francis v. Henderson, 425 U.S. 536, 542

(1976). Not surprisingly, many state courts and legislatures have

come to similar conclusions. Hence, California requires a

showing of “good cause” for an untimely petition, see Morales

v. Calderon, 85 F. 3d 1387, 1390 (CA9 1996) (quoting Supreme

Court Policies Regarding Cases Arising from Judgments of

Death, Standard 1-2 (1990)). Similarly Wisconsin requires

“sufficient reason” for a successive collateral attack. Prihoda v.

McCaughtry, 910 F. 2d 1379, 1381 (CA7 1990) (quoting Wis.

Stat. §976.06(4)). These two very similar rules suffered very

different fates at the hands of two different circuits.

The nub of the dispute is the requirement that the state rule

be “strictly or regularly followed.” Barr v. Columbia, 378

U.S. 146, 149 (1964).

“A requirement of consistency poses special problems for

forfeiture rules, because every state uses exceptions such as

‘plain error’ or ‘sufficient reason’ or even ‘cause and

prejudice’ to deal with cases in which application of the

ordinary rules would produce unacceptably harsh conse-

quences.” Prihoda, 910 F. 2d, at 1383.

“Searching for ‘regularity’ in the state’s employment of

excuses and exceptions would embroil the federal court

deeply in questions of state law and procedure. An alterna-

tive to the comprehensive survey of state cases every time a

state invokes waiver is to recharacterize what it means for a

state to apply its rule strictly. Both the Supreme Court and

the inferior courts respect state procedural grounds unless

they are regularly disregarded (or seemingly have been

manufactured for the occasion, as in Johnson). A state

ground that is solidly established will be respected even

though not ‘strictly’ followed. Any other approach would

discourage state courts from applying plain error doctrines,

lest giving one prisoner a break disable the state from

enforcing its procedural rules with respect to many others.

Neither prisoners’ interests nor the interest of federalism

would be served by such a development.” /d., at 1384

(emphasis in original).

Prihoda claimed that the fact he was unrepresented in his first

collateral attack was “sufficient reason” to consider a second,

id., at 1381, and claimed inconsistency in the Wisconsin courts’

acceptance of that reason in some cases and rejection of it in

others. /d., at 1384. The Seventh Circuit rejected that argu-

ment, noting that other factors, such as the importance of the

issue, were also involved. Jbid. Case-by-case judgment is

required to implement such a rule.

“The difficulty of drawing lines, especially under standards

such as ‘sufficient reason,’ makes uncertain application

inevitable. Uncertainty is not enough to disqualify a state’s

procedural ground as one ‘adequate’ under federal law. Jf it

were, states would be induced to make their rules draconian

rather than to allow prisoners the latitude now available.”

Id., at 1385 (emphasis added).

The opinion of the Ninth Circuit in the present case stands in

stark contrast to the wisdom of Prihoda. Instead of recognizing

the need for standards such as “good cause” and the benefits to

prisoners of having them, the opinion begins by criticizing

California’s rule for not “set(ting] out criteria for determining

‘good cause’ to excuse such delay.” Morales, 85 F. 3d, at 1391.

Then the opinion below makes this statement: “The vague-

ness of the Standards could have been cured by narrowing

judicial construction in the years immediately following their

issuance. We find no such cases, however.” /bid. (emphasis

added). This concept is lifted straight from the cases on

vagueness of statutes defining crimes or establishing eligibility

for capital punishment. See, e.g., Richmond v. Lewis, 506 U. S.

40, 47 (1992); Kolender v. Lawson, 461 U. S. 352, 355 (1983).

The Ninth Circuit apparently believes that a rule granting

leniency to a litigant who has defaulted his claim must be drawn

with the same precision as a law which sends people to the

gallows.

Later in the opinion, the Ninth Circuit acknowledges the

value of discretionary rules, but then implies that only certain

kinds of discretion will do. See Morales, 85 F. 3d, at 1392.

Unless the state court establishes a body of case law laying out

guidelines for the exercise of discretion, the Ninth Circuit will

not find the requirement for an “adequate” state ground to have

been met. /bid. Because the California Supreme Court, like this

Court, typically does not write opinions when it denies original

habeas petitions, see ibid., that requirement is not going to be

met.

In effect, the Ninth Circuit has created a presumption of

irregularity, inverting the usual rule. Cf. Parke v. Raley, 506

U. S. 20, 29 (1992) (“presumption of regularity” “deeply rooted

in our jurisprudence”). Not only must the procedural ground be

stated in the individual case, as Harris vy. Reed, 489 U. S. 255,

263 (1989) may require, but the California Supreme Court must

now write opinions in all of its original habeas petitions so that

the Ninth Circuit can “peer majestically over the [state] court's

shoulder,” Lewis v. Jeffers, 497 U. S. 764, 780 (1990) (quoting

Godfrey v. Georgia, 446 U.S. 420, 450 (1980) (White, J.,

dissenting)), and supervise its application of state law.

The Seventh Circuit applies the opposite presumption. The

general rule is that state procedural grounds will be respected.

To breach this wall, the burden is on the habeas petitioner to

show that the state rules “are regularly disregarded (or seemingly

have been manufactured for the occasion, as in Johnson).”

Prihoda, 910 F. 2d, at 1384 (emphasis in original).

This issue has always been important. It is even more

important now, after the enactment of the Antiterrorism and

Effective Death Penalty Act of 1996, discussed in part III, infra.

The conflict between Prihoda and the present case makes this an

appropriate case for this Court's review.

II. Certiorari should be granted in this case to resolve

contradictions in this Court’s earlier opinions.

Hathorn v. Lovorn, 457 U. S. 255, 263 (1982) states that a

procedural ground is adequate only if the state courts apply it

evenhandedly “to all similar claims.” Courts of appeals taking

a restrictive view of the “adequacy” requirement have latched on

to this phrase. See, e.g., Messer v. Roberts, 74 F. 3d 1009,

1015 (CA10 1996).

Dugger v. Adams, 489 U. S. 401 (1989), however, appears

to be inconsistent with the Hathorn rule, or at least with a strict

interpretation of it. Adams claimed a violation of the rule of

Caldwell v. Mississippi, 472 U. S. 320 (1985), but he had not

objected at trial, on appeal, or in his first round of state and

federal collateral review. /d., at 404-405. The state court held

the claim was barred. /d., at 405. The Adams dissent noted

several cases in which similarly belated Caldwell claims had

been considered and rejected on the merits, id., at 416-420, and

relied on the Hathorn rule. Id., at 420.

The Adams majority only responded in a footnote. Even

though Hathorn says “all,” the Adams Court referred to “the

vast majority of cases.” /d., at 411, n. 6. The majority says

“the few cases that respondent [Adams] and the dissent cite do

not convince us that the Florida Supreme Court fails to apply its

procedural rule regularly and consistently.” /bid. Regrettably,

the majority does not really say why they do not. As the dissent

notes, the reasons the majority gives are not persuasive. /d., at

418 (opinion of Blackmun, J.).

If Adams was correctly decided, as amicus CJLF firmly

believes it was, further clarification of its rule is required. The

apparent conflict between the statement in Hathorn and the result

in Adams will only fester until it is resolved. No other court has

the authority to overrule this Court’s precedents, see Hutto v.

Davis, 454 U.S. 370, 375 (1982) (per curiam), and so that

resolution must be found here.

A clue to the resolution can be found at the end of Adams’

discussion of the four Florida cases submitted as proof of

inconsistent application.

“Regardless of whether any of these cases might be subject

to federal habeas review because of the lack of a plain

statement that the decision was based on state law grounds,

an issue we considered in Harris v. Reed, ante, at p. 255, we

do not believe that they are sufficient to undercut the

adequacy of the Florida procedural rule.” Adams, 489

U. S., at 411-412, n. 6.

In other words, the effect on federal habeas of a state court’s

decision to rule on the merits and not on procedural grounds in

the petitioner’s own case is not the same as the effect of such a

decision in other cases. These different facets of the procedural

default doctrine must be examined in light of their different

purposes.

When the state court’s decision in the petitioner’s own case

is based on the merits and not on procedural default, then the

state judgment does not, in fact, rest on state law. In such a

case, the reason for the procedural default rule is simply absent,

see Harris v. Reed, 489 U. S. 255, 262 (1989) (rule based on

independent state ground doctrine), and the rule should not

apply. For this purpose, it makes no difference whether the state

court accepted or rejected the defendant’s argument. The shield

from federal review on certiorari or habeas is dropped either

way. Id., at 263 (habeas, claim rejected); Michigan v. Long,

463 U. S. 1032, 1044 (1983) (certiorari, claim accepted).

However, when the procedural ground was asserted in

petitioner’s case but not in others, the interests involved are

different. There are two evils to be avoided here. One is a lack

of fair notice. See Wright v. Georgia, 373 U.S. 284, 291

(1963) (“no prior Georgia case . . . gives notice of the existence

of [the] requirement”). When a state court lays out a course as

proper in one case and then declares it a default in another, the

defendant has been unfairly denied his day in court. See, e.g.,

Johnson vy. Mississippi, 486 U. S. 578, 587-588 (1988). The

second problem is discrimination. A state rule should not be

manipulated to discriminate against certain classes of defendants

or claims. For example, in Williams v. Georgia, 349 U. S. 375

(1955), the state court held a claim of racial discrimination in

jury selection to be defaulted, but relief on similarly late claims

of nonracial jury selection irregularities had been granted in

numerous cases. /d., at 384-387.

For this latter purpose, it matters a great deal whether the

claims in the other cases were accepted or rejected. In Adams,

supra, the case of Combs v. State, 525 So. 2d 853, 856 (1988)

was asserted as an inconsistent application of the state rule,

because the state court addressed and rejected Combs’ defaulted

Caldwell claim. But the state court was not doing Combs any

favors by this ruling. By addressing and rejecting his claim, the

Florida Supreme Court cleared the way for the same instruction

to be used again on retrial.' The trial judge might otherwise

have been inclined, though not required, to follow contrary

Eleventh Circuit precedent. See id., at 856-857 (discussing and

rejecting Eleventh Circuit cases).?

Frequently in the law, the moving party must clear more than

one hurdle in order to obtain the relief he seeks. The general

rule in such cases is that the court need not evaluate the case in

any particular order. If the claim fails to clear one hurdle it may

be rejected, and closer, more difficult questions need not be

addressed.

Strickland v. Washington, 466 U. S. 668 (1984) is a prime

example of this principle. The petitioner must show both

unprofessional deficiency in counsel’s performance and resulting

prejudice. /d., at 687. If the second element is clearly absent,

the first need not be addressed. “If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient preju-

dice, which we expect will often be so, that course should be

followed.” Id., at 697.°

1. Combs’ penalty phase had to be retried for other reasons. /d., at 855.

2. Ona related point, Coleman v. Thompson, 501 U. S. 722, 743 (1991)

held that a state court decision rejecting a claim on the merits and

declining to decide a procedural bar question did not impair the

“independence” of the state rule.

3. Teague v. Lane, 489 U. S. 288 (1989) (piurality) is an exception. That

case established a prescribed order of issues (retroactivity first, “merits”

second) only because the plurality felt this order to be required by the

constitutional imperative of avoiding advisory opinions. /d., at316. As

Strickland demonstrates, that is not required for other rules.

san

A similar situation commonly arises in belated and successive

collateral attacks. Effective lawyers winnow out the weak claims

and concentrate on those with a substantial probability of

success. Smith v. Murray, 477 U. S. 527, 536 (1986). Those

left-out, weak claims then appear in the belated filings, both

defaulted and meritless. Federal default law is sometimes a

“morass,” making rejection on the merits the simpler course, see

Grubbs v. Delo, 948 F. 2d 1459, 1463, n. 3 (CA8 1991), and

the same is true in some states. In a state with discretionary

exceptions for defaulted claims, the merits will often be clearer

than the procedural bar question.

For example, after this Court’s remand order in Bacigalupo

v. California, 506 U. S. 802 (1992), many death row inmates

filed challenges to an aspect of California’s death penalty law

which had long been regarded as settled. Rejection of these

belated claims on procedural grounds would require resolution

of the knotty problems of when novelty of a claim is “cause,”

see Engle v. Isaac, 456 U. S. 107, 131 (1982); Reed v. Ross,

468 U.S. 1, 13 (1984), and when failure to make a claim on

appeal is ineffective assistance. See Smith, 477 U. S., at 535.

But after Tuilaepa v. California, 129 L. Ed. 2d 750, 114 S. Ct.

2630 (1994), the substantive question is once again settled. A

court would not in any way denigrate its own procedural default

law by deciding that a controlling precedent on the merits was a

clearer and simpler way to resolve the case.

This Court took that route on one of the claims in Gray v.

Netherland, 135 L. Ed. 2d 457, 116 S. Ct. 2074 (1996). Gray

had two complaints about certain penalty phase evidence in his

case: a “notice-of-evidence” claim, that he had not received

adequate notice, and a “misrepresentation” claim, that the

prosecution had affirmatively misled him about the evidence.

Id., at 470, 116 S. Ct., at 2081. The state asserted procedural

default on both aspects. Brief for Respondent in No. 95-6510,

p. 39; see also Brief for Criminal Justice Legal Foundation as

Amicus Curiae in No. 95-6510, pp. 11-16. The concurring

judge in the Court of Appeals had found the claim procedurally

defaulted. Gray v. Thompson, 58 F. 3d 59, 67-68 (CA4 1995)

(opinion of Hall, J.).

This Court found the record on procedural default of the

misrepresentation claim sufficiently muddled to require a

10

remand. 135 L. Ed. 2d, at 472-473, 116 S. Ct., at 2082-2083.

However, on the notice-of-evidence claim, this Court, like the

Court of Appeals majority, simply skipped the procedural default

issue and decided the case on Teague grounds. /d., at 473-475,

116 S. Ct., at 2083-2085; 58 F. 3d, at 64-66. The closest

precedent was contrary to the petitioner’s position, 135

L. Ed. 2d, at 474, 116 S. Ct., at 2084, and thus the Teague bar

was clear.‘

Is Gray evidence that this Court and the Fourth Circuit fail

to regularly and consistently apply the procedural default rule?

Of course not.

Procedural default is a barrier to a grant of relief on the

merits. It is not necessarily a barrier to denial of relief on the

merits. A court’s decision to deny relief on another ground and

not reach the procedural default question is not a failure to

consistently apply its procedural rule. Common sense and

judicial economy require that the massive tidal wave of claims

being filed by habeas petitioners be resolved in the most expedi-

tious manner possible, consistent with due process. When the

petitioner’s inability to clear one hurdle is apparent, examining

the others is a pointless exercise.

In short, a state court does not act in disregard of its own

procedural default rule unless it reaches a result contrary to that

rule. A writ of certiorari in the present case is necessary to

clarify this important point.

4. The dissent did not dispute that a claim based on short notice alone

would be Teague-barred. See id., at 483-484, 116 S. Ct., at 2091

(generally no right to notice of evidence, as opposed to issues, at all)

(opinion of Ginsburg, J.). The dissent objected instead to the separation

of the two aspects of the claim and would have based a contrary decision

on the “misrepresentation” aspect. See id., at 482, 116 S. Ct., at 2090.

5. For the exhaustion rule, this distinction is now in the statute. See 28

U.S. C. §2254(b)(2), as amended Pub. L. 104-132, § 104, 110 Stat.

1214, 1218.

CB tare Base be oeuate

11

Ill. The approach of the Ninth Circuit establishes a per-

verse incentive for states to adopt draconian policies.

California is in its present predicament because of the

relative generosity of its procedural default rule. The Ninth

Circuit’s decision in the present case furnishes a powerful

incentive to scrap that rule and establish a severe, rigid, excep-

tionless cutoff. Such a development would not serve the interests

of justice. Prihoda v. McCaughtry, 910 F. 2d 1379, 1385 (CA7

1990); cf. Sandin v. Conner, 132 L. Ed. 2d 418, 428-429, 115

S. Ct. 2293, 2299-2300 (1995) (states may be discouraged from

adopting desirable rules if that adoption breeds federal litigation).

The California rule establishes a “safe harbor” for petitioners

within which their petitions will be presumed timely, but it also

allows a petitioner to show that a later petition was timely or that

there was good cause for delay. See Morales v. Calderon, 85

F. 3d 1387, 1390 (CA9 1996). The decision below found this

too vague. Jd., at 1391. An alternative which would surely pass

muster on “vagueness” grounds would be a rule that ai/ claims

with no exceptions must be filed by a fixed date.

In a unitary system, such a severe curtailment of habeas

corpus would not be one that amicus CJLF or other responsible

anticrime groups would support. Such action may be necessary,

however, to stop the delays and the drain of resources which will

follow from this decision.

When a claim is filed in federal habeas, it must fit in one of

three categories, based on its history in state court: resolved on

the merits, unexhausted, or procedurally defaulted. Unexhausted

claims must be dismissed or denied on the merits. 28 U. S. C.

§ 2254(b), as amended by Pub. L. 104-132, § 104, 110 Stat.

1214, 1218. Claims resolved on the merits will only be re-

viewed for reasonableness. /d., subd. (d). Defaulted claims will

be denied unless the “cause and prejudice” or “actual innocence”

test is met. Murray v. Carrier, 477 U. S. 478, 495-496 (1986)

(unchanged by the new legislation).

Under this system, federal habeas should be vastly less

expensive and time-consuming than it has been to date. Full-

scale federal review of a claim shouid be a relatively rare event.

Determining that another court’s decision falls inside the range

12

in which reasonable judges can differ is far simpler than deciding

the underlying question de novo.

The benefits of this reform will not be realized, however, if

the federal courts routinely review de novo every defaulted claim

under the assertion that the state’s default rule is inadequate. To

avoid that disaster, the state will be forced to err on the side of

severity.

Simple rules tend to be harsh rules; rules that take into

account the myriad variations of real cases tend to be complex

and uncertain. Compare Coleman v. Thompson, 501 U. S. 722,

740 (1991) (30-day deadline, unwaivable) with Jn re Clark, 5

Cal. 4th 750, 779-780, 855 P. 2d 729, 748 (1993) (ineffective

assistance of habeas counsel will be considered, even though not

constitutionally required). California can make its rules clear

and simple if that is what the federal courts really require. The

result, however, will definitely not be in the long-term best

interests of habeas petitioners as a class.

CONCLUSION

The petition for writ of certiorari should be granted.

October, 1996

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae

Criminal Justice Legal Foundation