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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0381%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2007

## Text

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0381%3A2. Public record. Not legal advice.