Reply Brief — Wallace v. United States (No. 07-785)

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FILED

MAR 25 2008

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No. 07-785 Abs.

IN THE

Supreme Court of the United States

ERIC WALLACE,

Petitioner,

We

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari

to the District of Columbia Court of Appeals

REPLY BRIEF

DAVID A. HANDZO

J. ALEX WARD

LAN HEATH GERSHENGORN*

KIMBERLEY A. MORRIS

JENNER & BLOCK LLP

601 Thirteenth Street, N.W.

Washington, DC 20005

(202) 639-6000

March 25, 2008 * Counsel of Record

RRS SP TREN ARE 2D EN LEAR I RROR LITE CIEE ETAT OOO OAE SE ICE ES ETE TEE i BM AES PBA INE

1

TABLE OF CONTENTS

I. The Decision Below Exacerbates A Square

Conflict Among State Courts Of Last Resort.....2

Il. The Decision Below Conflicts With This

Ce SG TINIE scsi cncssatacidientincimae nee 6

. The Court Of Appeals’ Refusal To Permit

Direct Appeal Was Outcome Determinative......8

The Government Refused To Allow

Petitioner To Enter A Conditional Plea,

Confirming That The Purported “Widely

Available Alternative” Of Conditional Pleas

Provides No Grounds 'l’o Deny The Petition....11

CONCLUSION

il

TABLE OF AUTHORITIES

CASES

Blackledge v. Perry, 417 U.S. 21 (1974)

Cooper v. Oklahoma, 517 U.S. 348 (1996) ............ 9

Hill v. Lockhart, 474 U.S. 52 (1985)................0000 3

Journig an v. Duffy, 552 F.2d 283 (9th Cir.

Immuno AG. v. Moor-Jankowski, 567 N.E.2d

1270 (N.Y. 1991)

King v. Cunningham, 442 F. Supp. 2d 171

(S.D.N.Y. 2006)

Menna v. New York, 423 U.S. 61 (1975)........... 6,

Michigan v. Long, 463 U.S. 1032 (1983)

Ohio v. Robinette, 519 U.S. 33 (1996) .......... ee.

Pate v. Robinson, 383 U.S. 375 (1966)

Pennsylvania v. Labron, 518 U.S. 938 (1996)

People v. Armlin, 43 A.D.2d 782 (N.Y. App.

Div. 1973), modified by, 332 N.E.2d 870

(N.Y. 1975)

People v. Armlin, 332 N.E.2d 870 (N.Y.

People v. Parney, 253 N.W.2d 698 (Mich. Ct.

BN, BOT TD nccvcusicassscbuincsstansaneinee 5

People v. White, 308 N.W.2d 128 (Mich.

Rompilla v. Beard, 545 U.S

111

Snyder v. Louisiana, 552 U.S.

723750 (2008)

State v. Brunelle, 534 A.2d 198 (Vt. 1987)

State v. Cleary, 824 A.2d 509 (Vt. 2003)........... 2.3

State v. Wead, 609 N.W.2d 64 (Neb. Ct. App.

Thompson v. Commonwealth, 56 S.W.3d 406

(Ky. 2001)

In re Torres, 861 A.2d 1055 (Vt. 2004)....00.00.ccc 3

United States v. Broce, 488 U.S. 563 (1989)

United States v. Muench, 694 F.2d 28 (2d

Chm, TGR) concccccccccccccccccnaccncoccceces SNE ARIA 3

REPLY BRIEF

The government concedes that there is a direct

conflict between the rule of decision applied by the

D.C. Court of Appeals here and that applied by

several other state Supreme Courts. The

government nevertheless offers a hodge-podge of

legal and policy arguments to avoid this Court’s

review. Its legal arguments miss the mark, however,

and its policy arguments are refuted by the facts of

this case — facts that the government’s opposition

astonishingly omits.

The constitutional guarantee of Due Process

ensures that a defendant who has pleaded guilty

nonetheless retains the right to contest the trial

court's competency determination on direct review.

The court below deprived Eric Wallace of that federal

constitutional right, and it did so in a situation in

which failure to provide direct review made all the

difference: Mr. Wallace had previously been found

incompetent to stand trial and had been sent to St.

Elizabeth’s hospital for eight months of treatment

and evaluation; his physicians at St. Elizabeth’s

confirmed unambiguously and repeatedly that he

was incompetent; and the D.C. Court of Appeals

conceded that (even under its erroneous and

misguidedly narrow approach) this was a “difficult

case.” Pet. App. la. Due Process forbids “the

conviction of an accused person while he is legally

incompetent,” Pate v. Robinson, 383 U.S. 375, 378

(1966), and yet that is exactly what happened here.

Review by this Court is thus necessary.

2

I. The Decision Below Exacerbates A Square

Conflict Among State Courts Of Last Resort.

Although conceding that both the New York

Court of Appeals and the Vermont Supreme Court

would have permitted Mr. Wallace to challenge the

trial court’s competency determination on appeal

notwithstanding his guilty plea, the government

argues that the split is illusory because the decisions

of those courts allegedly “do not make clear .

whether they rest on the federal Constitution.” Opp.

11. That argument provides no basis for denial of

review.

First, the government is wrong: Both the New

York Court of Appeals in People v. Armlin, 332

N.E.2d 870 (N.Y. 1975), and the Vermont Supreme

Court in State v. Cleary, 824 A.2d 509 (Vt. 2003),

relied on the federal Constitution.

In Armiin, the N.Y. Court of Appeals rejected the

State’s contention that the defendant’s plea had

waived his right to appeal his competency

determination, holding that “there is an inherent

contradiction in arguing that a defendant may be

incompetent,” yet sufficiently understand the

consequences of a waiver of the right to claim

incompetency on appeal when he pleads guilty. See

332 N.E.2d at 874. For that proposition, the court

cited two and only two cases. The first was this

Court’s federal due process decision in Pate v.

Robinson. The second was the dissent in the

intermediate appellate court decision that Arm/in

reversed, People v. Armiin, 43 A.D.2d 782 (N.Y. App.

3

Div. 1973), modified by, 332 N.E.2d 870 (N.Y. 1975),

which itself stated that failure to allow the defendant

to appeal “constituted a violation of his constitutional

right to a fair trial,” citing Pate v. Robinson as

support. /d. at 784. Armi/in thus squarely relied on

the federal Due Process Clause. See generally Ohio

v. Robinette, 519 U.S. 33, 37 (1996) (holding that

state court decision was based on federal law when

“the only cases it discusses or even cites are federal

cases, except for one state case which itself applies

the Federal Constitution”).

Likewise, in Cleary, the Vermont Supreme Court

relied principally on Pate, Armiin, and United States

v. Muench, 694 F.2d 28 (2d Cir. 1982), which held

that the federal Constitution allows criminal

defendants to appeal directly ineffective assistance

claims notwithstanding a guilty plea. Cleary, 824

A.2d at 512.! Given the Cleary court’s reliance on

these decisions, it is clear that the court based its

decision on federal due process grounds.

Second, any ambiguity in Armi/in and Cleary

counsels in favor of review, rather than against it. It

has long been settled that this Court will resolve

ambiguity regarding the grounds of a state court’s

decision by presuming that the state court relied on

federal constitutional law. See, e.g., Pennsylvania v.

' The Vermont Supreme Court’s subsequent decision in /n re

Torres, 861 A.2d 1055 (Vt. 2004), confirms the federal basis for

that court’s Cleary decision. The court there cited Cleary as an

example of the “hmited exceptions to the waiver rule,” along

with United States v. Muench and this Court’s decision in Az//

v. Lockhart, 474 U.S. 52 (1985). 861 A.2d at 1057-58.

4

Labron, 518 U.S. 938, 941 (1996) (assuming state

court decision based on federal law absent a “plain

statement’ sufficient to tell [the Court] ‘the federal

cases [were] being used only for the purpose of

guidance, and dlid] not themselves compel the result

that the court hald] reached”) (quoting Michigan v.

Long, 463 U.S. 1032, 1041 (1983)). That “Michigan

v. Long presumption” applies with particular force

here, because both the New York Court of Appeals

and the Vermont Supreme Court have frequently

made explicit when they are citing federal

constitutional cases merely to bolster’ their

interpretation of state law. See Jmmuno AG. v.

Moor-Jankowski, 567 N.E.2d 1270, 1278 (N.Y. 1991)

(“[O]ur State law analysis reference to Federal cases

is for the purpose of guidance only, not because it

compels the result we reach.”); State v. Brunelle, 534

A.2d 198, 200 (Vt. 1987) (“Although federal cases are

discussed herein, we base our decision exclusively on

the provisions of the Vermont Constitution.”). The

absence of similar language in Arm/in or Cleary

speaks volumes.

Indeed, the case for applying the presumption is

exceptionally strong here. In Long, Robinette,

Labron, and other similar cases, the ambiguity in the

state court’s decision implicated this Court’s

jurisdiction. Here, this Court’s jurisdiction is

unquestioned — the D.C. Court of Appeals squarely

rejected Mr. Wallace’s federal due process arguments

on the merits. Pet. App. 4a-7a. Any purported

ambiguity in Arm/in and Cleary thus goes solely to

the extent of the confusion in the state and federal

5

courts, and not to this Court’s jurisdiction to resolve

the question presented.

Third, as noted in the petition, Pet. 13-16, the

decisions in Armilin and Cleary reflect a broader

consensus that is at odds with the decision below.

The government does not dispute, for example, that

the Michigan Court of Appeals has held that

defendants such as Mr. Wallace are entitled to

challenge their competency decisions on appeal as a

matter of federal due process. See People v. Parney,

253 N.W. 2d 698, 699 (Mich. Ct. App. 1977) (per

curiam). And although the government correctly

notes that Aing v. Cunningham, 442 F. Supp. 2d 171

(S.D.N.Y. 2006), is a federal habeas decision, it does

not deny that the district court found “fundamentally

flawed” the precise argument that the government

advances here, namely that the defendant “forfeited

his mental competency claim upon entry of a guilty

plea.” Jd. at 185; see also State v. Wead, 609 N.W.2d

64, 68 (Neb. Ct. App. 2000) (invoking “the sanctity of

constitutional protections” in holding that a guilty

plea did not foreclose appeal of a competency

determination); ZVhompson v. Commonwealth, 56

S.W.3d 406 (Ky. 2001) Gnvoking federal due process

cases to support the determination that a guilty plea

did not waive the right to appeal a denial of a

competency hearing required by state statute).

Thus, regardless of whether these decisions standing

alone would create a conflict sufficient to warrant

this Court’s review, cf Opp. 13 n.4, they demonstrate

that the court’s holding below conflicts with a great

number of decisions, and thus merits this Court’s

attention.

6

. The Decision Below Conflicts With This Court’s

Decisions.

The decision below is also worthy of review

because it conflicts with decisions of this Court and

violates the Constitution’s promise of Due Process

and fundamental fairness in our criminal justice

system.”

As demonstrated in the petition, Pet. 19-22,

although a defendant forfeits many important

constitutional rights when he pleads guilty, he does

not surrender claims that implicate the State’s power

to force a defendant to answer the criminal charge in

the first place. In Blackledge v. Perry, 417 U.S. 21

(1974), and Menna v. New York, 423 U.S. 61 (1975),

this Court held that double jeopardy is such a claim.

Menna explained that where “the claim is that the

State may not convict [the defendant] no matter how

validly his factual guilt is established,” a guilty plea

does not bar direct appeal. Menna, 423 U.S. at 63

n.2. A competency claim, like double jeopardy, is an

assertion that “the charge is one which the State

may not constitutionally prosecute.” J/d.; see also

Journigan v. Duffy, 552 F.2d 283, 289 (9th Cir. 1977

(finding that a claim questioning the

constitutionality ofa statute was not waived by a

guilty plea because of its jurisdictional nature);

People v. White, 308 N.W.2d 128, 134 (Mich. 1981)

(applying similar reasoning to a defendant's claim of

2 This Court has, of course, granted review in criminal cases

even absent a split among the lower courts or state courts of

last resort. See, e.g.. Snvder v. Louisiana, 552 U.S. __, 2008

WL 723750 (2008): Rompuila v. Beard, 545 U.S. 374 (2005).

4

entrapment). In these instances, no matter how

strong the State’s case against the defendant may be,

the government may not prosecute the charge. The

question presented in this case thus involves a clear

application of this Court’s decisions in Blackledge

and Menna.*

Indeed, competency claims present a stronger

case for exemption from the guilty plea waiver rule

than double jeopardy. While both present bars to

prosecution, the State cannot prosecute an

3 The government seeks to limit the scope of Blackledge and

Menna by arguing that the double jeopardy claims at issue

there were apparent from the complaint as “judged on its face.”

Opp. 8-9 (citing United States v. Broce, 488 U.S. 563, 575

(1989) (quoting Menna, 423 U.S. at 62)). But the government is

wrong to suggest that the Court’s use of the phrase “judged on

its face” excludes the competency claims at issue here. Even

double jeopardy claims cannot be evaluated on the “face” of the

complaint because such claims require an examination of the

prior proceedings. The Court’s reference to “judged on its face”

means in context only that the defendant’s claim must be

assessed on the record as it stands at the time of the guilty

plea. As the Court explained in Broce: “In neither Blackledge

nor Menna did the defendants seek further proceedings at

which to expand the record with new evidence. In those cases,

the determination that the second indictment could not go

ferward should have been made by the presiding judge at the

time the plea was entered on the basis of the existing record.

Both Blackledge and Menna could be (and ultimately were)

resolved without any need to venture beyond that record.”

Broce, 488 U.S. at 574-76 (emphasis added). Broce, on the

other hand, wanted to add evidence to the record to prove his

double jeopardy claim, and this Court denied his appeal. /d. at

576. Thus, even if “judged on its face” states a constitutional

requirement, Mr. Wallace’s competency claim satisfies that

requirement.

8

incompetent defendant for important and unique

reasons: he cannot understand the charges or

proceedings against him, make legally binding

decisions, or assist in his defense. It is, therefore,

particularly troubling to presume that a defendant

whose competency is at question could comprehend

the significance of a waiver of his right to direct

appeal on the issue of competency when he pleads

guilty See Pate, 383 U.S. at 384 (“But it is

contradictory to argue that a defendant may be

incompetent, and yet knowingly or intelligently

‘waive’ his right to have the court determine his

capacity to stand trial.”). This Court’s review is,

therefore, needed to state explicitly what Blackledge,

Menna, and Pate already require; under the Due

Process Clause, a defendant who pleads guilty

nonetheless retains the right to contest on direct

appeal a trial court’s competency determination.

Ill. The Court Of Appeals’ Refusal To Permit Direct

Appeal Was Outcome Determinative.

The government next attempts to diminish the

importance of Mr. Wallace’s petition by asserting

that resolution of the question presented “would

have no substantive impact on this case.” Opp. 13.

That is incorrect. There is a substantial difference

between direct appeal of a competency determination

and appeal of a trial court’s denial of a motion to

withdraw a guilty plea. And, that distinction was

outcome determinative for Mr. Wallace.

The government’s contention rests principally on

the argument that “any direct appeal...would not

9

have been substantially different from the appellate

review petitioner received,” because “even on direct

appeal petitioner’s competency determination would

be reviewed only for abuse of discretion” — “the same

standard by which” a court would review a denial of

a motion to withdraw a guilty plea. Opp. 13-14. But

while discussing the relevant standard of review, the

government ignores the more essential question:

whether the particular decisions under review differ

substantially based on their avenue of appeal. They

do.

In the jurisdictions that allow a direct appeal, the

court reviews directly the competency decision. On

the other hand, in jurisdictions that preclude direct

appeal, the reviewing court reviews only the trial

court’s determination that no “manifest injustice”

will result if the guilty plea stands. The significant

distinction between these questions is the burden the

defendant carries in the trial court’s initial

determination. The competency question is resolved

by a preponderance of the evidence inquiry. See

Cooper v. Oklahoma, 517 U.S. 348, 355 (1996). The

defendant has a vastly greater burden when he

moves to withdraw a guilty plea. See Pet. 24-25.

Thus, individuals such as Mr. Wallace actually face a

double hurdle on appeal when they are forced to

present their competency claim in the guise of a

motion to withdraw their guilty plea. The essential

questions the court asks and the underlying burdens

of the decisions they review are materially different.

As a result, review of a denial of a motion to

withdraw a guilty plea is no substitute for direct

review.

10

The course of proceedings below confirms that

understanding and belies the government’s new

position here that the avenue of relief is irrelevant.

In the Court of Appeals, the government aggressively

opposed Mr. Wallace’s effort to obtain direct review

of his competeney, arguing that his case should be

reviewed instead under “the exacting ‘manifest

injustice’ standard.” Gov't Br. at 26 (D.C. filed June

1, 2006). And in the trial court, the government

refused Mr. Wallace’s request to enter a conditional

plea that preserved direct review of his competency

claim, an action that is inexplicable if the avenue of

relief were truly no different.

Likewise, the D.C. Court of Appeals plainly

believed that there was a difference in the two

avenues for relief because it spent significant time

resolving the question presented without ever

suggesting that its resolution of that question was

unnecessary.

Finally, it cannot be ignored that the distinction

at the heart of this petition mattered in Mr.

Wallace’s case. As noted in the petition (and in the

decision below), Mr. Wallace had previously been

found incompetent, and prior to the release that led

to the instant crime had spent eight months in St.

Elizabeth’s. Pet. 3; Pet. App. 74a-76a. The doctors

who had treated him over that period concluded that

he was “severely impaired”; was “unable to manage

the basic concepts associated with competency to

stand trial”; and would be “unlikely” to “attain

competency in the foreseeable future.” Pet. 5. Their

reports, as well as confirming testimony from other

11

experts, were submitted at the trial court. In

contrast, the government’s meager evidence of

“malingering” was based on brief interviews and was

contrary to the physical evidence provided by EEGs.

See Pet. 7 (“[T]here’s no way you can fake or

malinger an abnormal EEG”) (quoting expert

testimony). Even under the narrow scope of review

the District of Columbia Court of Appeals employed,

the court deemed this “a difficult case.” Pet. App. la.

Due Process demands that this “difficult case” be

resolved by a court applying the proper standard and

asking the right questions.

IV. The Government Refused To Allow Petitioner

To Enter A Conditional Plea, Confirming That

The Purported “Widely Available Alternative”

Of Conditional Pleas Provides No Grounds To

Deny The Petition.

Finally, the government contends that Mr.

Wallace “overstates the significance of the issue”

because defendants in many jurisdictions “can enter

a conditional guilty plea that reserves the right to

appeal.” Opp. 15. Indeed, the government touts

conditional pleas as a “widely available alternative”

that relieves defense counsel of any “dilemma,” see

Pet. 25-27, and deprives the petition of “broad

significance.” Opp. 16.

That argument is simply disingenuous. As the

government well knows — but neglects to inform the

Court — Mr. Wallace did seek a conditional plea, and

the government refused to permit it. Indeed, in its

brief to the D.C. Court of Appeals, the government

12

touted this fact: “Appellant’s counsel had sought a

conditional plea allowing direct appeal of the

competency ruling, but at the plea colloquy, the

prosecutor expressly declared ‘this will not be any

type of conditional plea with respect to Mr. Wallace’s

appellate rights concerning ... for example... the

competency proceeding that already took place’

(1/5/05 Tr. 7).” Gov't Br. at 15 n.5 (D.C. filed June 1,

2006) (omissions and citation in original). For the

government to deny Mr. Wallace a conditional guilty

plea and then assert that the petition should be

denied because such conditional guilty pleas are

“widely available” is the height of arrogance.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

DAVID A. HANDZO

J. ALEX WARD

IAN HEATH GERSHENGORN*

KIMBERLEY A. MORRIS

JENNER & BLOCK LLP

601 Thirteenth St., N.W.

Washington, D.C. 20005

(202) 639-6000

March 25, 2008 * Counsel of Record