Opposition Brief — Gilmore v. Emerson

No. 96-1043

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

JERRY GILMORE, WARDEN,

PONTIAC CORRECTIONAL CENTER, Petitioner,

Vv.

DENNIS EMERSON, Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit.

BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI

PRENTICE H. MARSHALL, JR.

LINTON J. CHILDS*

JEFFREY B. CHARKOW

Sidley & Austin

One First National Plaza

Chicago, Illinois 60603

p ae (312) 853-7000

\ FEB 5 1997 Counsel for Petitioner

RK

OFFICE OF tne ip *Counsel of Record

URT, U.S.

SYPREME C0

CAPITAL CASE

QUESTIONS PRESENTED FOR REVIEW

| Whether the State waived application of amended 28 U.S.C. § 2254(d) by

not raising its applicability in a timely manner.

2 Whether the court of appeals misapplied Strickland v. Washington when it

concluded that Dennis Emerson was denied effective assistance of counsel at the sentencing sense

of his capital murder trial

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ......... ee eee AP re SORE heer Te ee ee Cr eee rae

TABLE OF AUTHORITIES ........ SER Pe a ane ee Ae St en ee 255 ieee

STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED ..................1]

COUNTERSTATEMENT OF THE CASE ........... 5. sec even. Pas ca sete kate [aia

REASONS PO Sere rete CMe PRUNE cick eb ee ead hg eset ee Fea eee Paar: . peer 6

I THIS COURT SHOULD NOT GRANT CERTIORARI TO DECIDE

WHETHER THE STATE WAIVED APPLICATION OF AMENDED SECTION

2254(D) IN THE COURT OF APPEALS ... 2. icin ccnnw rene hale Mae

II THIS COURT SHOULD NOT GRANT CERTIORARI TO REVIEW A CLAIM

THAT THE COURT OF APPEALS MISAPPLIED STRICKLAND V.

EE oe Oe CF Lag ek nh ae eee er Oh ee es i.e

CONCLUSION ...... OO Gh cel! ean bE ee TERE OEP LEE hE 18

iil

TABLE OF AUTHORITIES

CASES

Page

Brady v. United States, 397 U.S. 742 (1970) ; ed. + aA eka ae aera Cis ee eee Lng Ei 16

I OI Ne Oh I on os oe von kes Pow eWeek bo be de Bonn ewcenek 16

a ne i, gs. Wa Sav’ PW ssa a dL oe ae ks Ae 9

ee ee ne oS i oe dew sea bE dG aus Want an Gakieamees 18

es ©, Pe M03 P00 WN os occas Senwel eeee ease tb edss 17

Davis v. Executive Director of Department of Corrections, 100 F.3d 750 (10th Cir. 1996) ........ 7

meets V. Saris, FE Fe wc oes oe ce a cence peubeduvsbanccseun passim

ns OPS TU. NED od ac be ahs one kw ce ko ad oo Oa eee Pee oun 10

Ex Parte McCardle, 74 U.S. (7 Wall.) 506 (1869)............. : Seep ekicn ent are + ale saat ie 12

ne ee BO a os vs Seige a Ob a eis Cone eben ebsceeee ees 9,10

ee ee OU ca ek Sack bo wae cen baU hk « OPE ewe hak ees 15

ee ©. a Se NOD oe Pein a a oe a bees eos ls 16

Sey, See Pee Soe BNE os obs uo 2% Ds us obo vino casse sd oes ce bse cueur. 10,12

Hartford Fire Ins. Co. v. California, 509 U.S. 764 (1993) ............. iit othe Wy OS bie eons 9

ee ee ke os hey ame ed aed dees eee ee 15,18

Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996), cert. granted, 65 U.S.L.W. 3487 (January 14, 1997) . 7

Louisville & Nashville R.R. v. Mottley, 211 U.S. 149(1908) ....... 000 eee cee ee 11

en Se UE ne ey oe ewek fo ed ch Pee Aes 10

ee © ee ee et Ee COONS es oo as ee ee 8

iV

DEP EP IN

SORES gp eens 8

People v. Emerson, 122 Ill. 2d 411, 522 N.E.2d 1109 (1987) ..... eee 34h ee

People v. Morris, 229 Ill. App. 3d 144, 593 N.E.2d 932,

appeal denied, 146 Ill. 2d 644, 602 N.E.2d 468 (1992) ....................... 14

People v. Morrow, 269 Ill. App. 3d 1045, 647 N.E.2d 1100 (1995) ..0 0... ee. 4

People v. Reimolds, 92 Ill. 2d 101, 440 N.E.2d 872 (1982) ..... 2.0... cee, 14

People v. Starnes, 273 Ill. App. 3d 476, 652 N.E.2d 1177 (1995) ........0.00..0..... 4

Rehbein v. Clark, 94 F.3d 478 (8th Cir. 1996) .... 7

Schiro v. Farley, 510 U.S. 222 (1994) ........... 10

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) .................. oe Yeates a

Strickland v. Washington, 466 U.S. 668 (1984) .....00. 00... eee, We x byl Se

Sumner v. Mata, 449 U.S. 539 (1981) ............ eh te Cre a ee 11,12

United States v. Cronic, 466 U.S. 648 (1984) 2.0... ccc cece eee es 15

Sian et I EE a as ke us oe pep uath awe edb eas 16

Wienery, Withee S07 U.S GRD C1988) wo. occ wlccae ss. cca en chee 9

FEDERAL STATUTES

RR eC Se oa ae ON re SP tek ee te oe oe erences 9

ere hpi go Re Ce et ae anh, take Oe eee 9

ee re ee a iaa'k « unease es Risa os ele 10

I fo he ghee eer a ke Oe Ga Sa a wuee ina ome AION 10

aI I te a er ard a yo ko SO peda ane vA oie e ees +2 ua kees s

28 U.S.C. § 2254(d) EEA Ah PE em Ty aaa ie Me | IN Se ne Ae i eng ge aE . passim

IR eg 2s Ec, ct OSes Swe ep DRI ceed Eas Cole 12

MISCELLANEOUS

141 Cong. Rec. S. 7803-1 er ee Be Wea ee NGAP AT et ere is fa ; 1]

J. Liebman & R. Hertz, Federal Habeas Corpus Practice and Procedure (2d ed. 1994) 9

No. 96-1043

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

JERRY GILMORE, WARDEN,

PONTIAC CORRECTIONAL CENTER, Petitioner,

Vv.

DENNIS EMERSON, Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit.

BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI

Respondent Dennis Emerson respectfully submits this brief in opposition to the

petition for a writ of certiorari filed by Jerry Gilmore, Warden of Pontiac Correctional Center.

STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution provides, in pertinent

part:

In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury . . . and to have the

Assistance of Counsel for his defence.

The Fourteenth Amendment to the United States Constitution provides, in

pertinent part:

No State shall . . . deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

EPR RTD ee a |

28 U.S.C. § 2254(a) provides:

The Supreme Court, a Justice thereof, a circuit judge, or a district

court shall entertain an application for a writ of habeas corpus in

behalf of a person in custody pursuant to the judgment of a State

court only on the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States.

After the district court entered final judgment and the parties' cross-appeals were

orally argued in the court of appeals, 28 USC § 2254(d) was amended by the Antiterrorism and

Effective Death Penalty Act of 1996 (Pub. L. No. 104-132, 110 Stat. 121) ("Act") to provide:

An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be

granted with respect to any claim that was adjudicated on the merits

in State court proceedings unless the adjudication of the claim --

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of clearly established Federal law, as determined .

by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State

court proceeding.

COUNTERSTATEMENT OF THE CASE

The statement of the case in the State's petition omits numerous facts necessary for

consideration cf the second question presented, in violation of Rule 14.1(g). The additional facts i

set forth below are material to consideration of the second question presented. The State’s

statement of the case also affirmatively misrepresents facts pertaining to the submission in the

—— es

state post-conviction proceeding of an affidavit by Dennis Emerson’s trial counsel, as explained

below

l. At Dennis Emerson's state court capital sentencing hearing, Emerson's trial

counsel, Cook County Assistant Public Defender James Sammons, presented no mitigating

evidence, made no attack on the State's aggravating evidence, and presented no opening

statement or closing argument on his client's behalf -- not even a plea for mercy. In the federal

habeas corpus proceeding, Sammons admitted under oath that he did not conduct any

investigation into the mitigating evidence that could have been introduced on Emerson's behalf,

did not conduct any interviews of potential witnesses, did not prepare any opening statement or

closing argument for the sentencing phase, and did not develop any theory or strategy for the

sentencing phase of Emerson's trial. None of Sammons’ failures to investigate or prepare were

considered by the state post-conviction court because the state court refused to permit Emerson's

post-conviction counsel to take Sammons’ deposition.

2 If Sammons had conducted an investigation of the available mitigating

evidence, he would have learned that Emerson came from a severely impoverished and troubled

family background; that Emerson was a gunshot victim at the age of eight; that resulting medical

problems caused Emerson to miss a year of school, stunting Emerson's educational and personal

development; that Emerson was thereafter evaluated as being borderline retarded, with an I.Q. of

80; that Emerson was emotionally devastated by the death of his infant daughter, possibly

strangled by her mother; and that Emerson, while incarcerated, was a model prisoner and

demonstrated rehabilitative potential. At least seven witnesses were available to present this

mitigating evidence. The State has never challenged the truthfulness of this evidence, or denied

that Sammons could have uncovered it had he bothered to conduct even a minimal investigation.

3. In affirming the district court's decision that Sammons’ failure to investigate

or present this mitigating evidence deprived Emerson of a fair sentencing hearing, Chief Judge

Posner wrote for a unanimous court that at least "one juror in twelve" might find Emerson's life

"so bleak, so deprived, so harrowing, so full of horrors ... as to reduce Emerson's moral

responsibility ... to a level at which capital punishment would strike that juror as excessive or one

or more jurors would think Emerson deserving of mercy." Emerson v. Gramley, 91 F.3d 898,

907 (7th Cir. 1996). In support of this conclusion, the court cited other sal Illinois cases in

which the State sought the death penalty, but the finder of fact declined to impose it after hearing

mitigation evidence similar to that available to, but neither investigated nor presented by,

Emerson's trial counsel. Id. (citing People v. Starnes, 273 Ill. App. 3d 476, 480, 652 N.E.2d

1177, 1181 (1995), and People v. Morrow, 269 Ill. App. 3d 1045, 1047, 647 N.E.2d 1100, 1103,

1107 (1995)).

4. In support of its argument that Sammons’ conduct was consistent with

Emerson’s “instructions,” the State quotes a short colloquy from the transcript in which Sammons

represented to the court that Emerson did not want him to present evidence or argument,

followed by Emerson's statement that he had no evidence that he wanted to present himself. This

excerpt from the transcript, however, must be read in the context of the entire record.

OE BROT Ons

The day before the sentencing hearing, Sammons had conceded Emerson's guilt to

the charge of capital murder in his closing argument.’ Sammons had previously waived opening

statement, had made no effort to attack the credibility of Emerson’s sole accuser, and had

presented no evidence of Emerson’s alibi. Emerson was understandably disgusted with his

lawyer's abysmal performance and stated on the record that he did not want Sammons filing

“motions on my behalf.”

When the sentencing hearing began, Sammons had done no investigation of

mitigating evidence and had done nothing to prepare for the hearing. The State does not argue

that this failure was consistent with Emerson’s “instructions.” Because Sammons "had failed to

conduct any investigation, however brief, into the possible existence of mitigating circumstances

Sammons could not advise Emerson whether to try to present evidence of such circumstances."

91 F.3d at 906 (emphasis in original). "Nor did either Sammons or the trial judge warn Emerson

of the fell consequences of failing to establish some mitigating circumstances, without which ... a

sentence of death was certain unless the jury disobeyed the judge's instructions." Id. Indeed,

"[t]here were no warnings" of the consequences of not presenting mitigating evidence. No one

told Emerson that "without an effort to persuade the jury to exercise lenity he was doomed." Id.

Without legal advice, Emerson himself did not know "what an investigation of his personal history

would bring out that might help him with the jury." Id.

' Circuit Judge Ripple dissented from the majority's decision to uphold the district court's refusal

to grant habeas relief with respect to Emerson's convictions. Emerson's pending certiorari

petition (No. 96-7254) concerns the legal consequences of Sammons’ unauthorized concession of

Emerson's guilt in light of available evidence to support an acquittal.

5

This is the context in which the colloquy relied on by the State took place. The

Seventh Circuit unanimously concluaed that under these "unique circumstances," it could not be

said "that Emerson would have refused to permit argument or evidence no matter what Sammons

and the trial judge had said and done." Id. at 906-07. Accordingly, the Seventh Circuit rejected

the State's argument that Sammons' conduct was consistent with Emerson's instructions and held

that "Emerson's waiver of his procedural rights at the sentencing hearing cannot be considered a

knowing waiver to which he should be held." Id.”

REASONS FOR DENYING THE WRIT

I. THIS COURT SHOULD NOT GRANT CERTIORARI TO DECIDE WHETHER

THE STATE WAIVED APPLICATION OF AMENDED SECTION 2254(D) IN

THE COURT OF APPEALS.

After the district court had entered final judgment granting Emerson relief from his

death sentence (but not from his convictions), and after the parties’ cross-appeals had been

briefed, orally argued, and submitted for decision, Congress passed and the President signed the

Act which, among other things, amended Section 2254(d). In the course of affirming the district

court's judgment, the court of appeals remarked that the State had not, after the Act had become

law, asserted that the Act had any application to the case. The court of appeals further remarked

> In addition to the colloquy from the sentencing hearing, the State relies on an affidavit from

Sammons filed during state post-conviction proceedings (not in the Illinois Supreme Court on

direct appeal, as the State falsely claims). The affidavit does not cite the transcript, but states only

in conclusory terms that Sammons believed that Emerson did not want Sammons to present

mitigating evidence to the jury. Notably, Sammons’ affidavit does not challenge any of the

specific circumstances discussed above. The affidavit also asserts that Sammons had considered a

"strategy" of stipulating that the evidence in aggravation and mitigation would be the same as at

Emerson's first trial -- a remarkable strategy, given that no mitigating evidence was presented at

the first trial and given that Emerson was sentenced to death in that proceeding.

6

——— eee

that because the Act's changes to Section 2254(d) were not jurisdictional in nature, arguments

based on the Act could be -- and had been -- waived. The State never sought rehearing or

suggested rehearing en banc on this issue, even though such a petition would have been highly

appropriate, given that the court of appeals had addressed this issue sua sponte.

In its first question presented, the State asks this Court to hold that it did not

waive application of amended 28 U.S.C. § 2254(d), because application of that provision cannot

be waived. The State contends that the amendment, which prohibits district courts from granting

habeas relief unless certain prerequisites are met, actually eliminated district courts’ subject matter

jurisdiction over cases where those prerequisites for relief are not satisfied. The State further asks

this Court to hold that the Seventh Circuit was required to apply the amendment retroactively to

divest the district court of subject matter jurisdiction in this case, even though the amendment was

not enacted until more than a year after the district court entered final judgment. This Court

should not grant certiorari to review the court of appeals’ passing remarks on this issue -- an issue

that was neither briefed nor argued below.

l. There is no conflict among lower court decisions with respect to the

question presented. The courts that thus far have considered the issue have unanimously held that

appiication of the amendment to 28 U.S.C. § 2254(d) at issue here can be waived, because it does

not affect the district courts' subject matter jurisdiction, but rather modifies the substantive legal

standard that applies to habeas claims properly within the district courts' jurisdiction. Emerson,

91 F.3d at 900; Lindh v. Murphy, 96 F.3d 856, 865 (7th Cir. 1996) (en banc), cert. granted, 65

U.S.L.W. 3487 (January 14, 1997); Rehbein v. Clark, 94 F.3d 478, 481 n.4 (8th Cir. 1996); Davis

v. Executive Director of Dep't of Corrections, 100 F.3d 750, 755 n.1 (10th Cir. 1996). Unless

and until some lower court reaches the opposite conclusion, there is simply no need for this Court

to intervene in this case. See McCray v. New York, 461 U.S. 961, 961 (1983) (Stevens, J.).

Even if the issue is thought to warrant review, it should be considered in a case where the issue

has been throughly addressed in the lower courts.

2. The decision below was manifestly correct. The plain language of the

1996 amendment, this Court's decisions interpreting other amendments to Section 2254, and the

legislative history surrounding adoption of the Act all confirm that the Seventh Circuit was

correct when it observed that the 1996 amendment "affects the scope of federal judicial review of

state court determinations rather than the power of review," and, as such, is an argument the State

can waive by not raising it in a timely manner. 91 F.3d at 900 (emphasis added).

The amendment to Section 2254(d) relied on by the State provides that "[a]n

application for a writ of habeas corpus ... shall not be granted ... unless" one of two requirements

is satisfied. (Emphasis added). Thus, the plain language of the amendment establishes a

prerequisite for granting an application for a writ of habeas corpus, not a prerequisite for

considering the merits of such an application.

This Court has long drawn a careful distinction between provisions of the habeas

statute that are jurisdictional and provisions that delineate the scope of federal review. The

jurisdictional requirements are set forth in Section 2254(a), which was not amended in 1996.

Section 2254(a) provides that "a district court shall entertain an application for a writ of habeas

corpus in behalf of a person in custody pursuant to the judgment of a State court only on the

> The State of Illinois now routinely asserts in federal habeas litigation that federal courts are

obligated to apply the amendments to Section 2254(d), therefore eliminating any waiver issue in

future cases.

ground that he is in custody in violation of the Constitution or laws or treaties of the United

States." See also 28 U.S.C. § 2241 (setting forth same jurisdictional prerequisites). In Brown v.

Allen, 344 U.S. 443, 460-61 (1953), this Court explained that a court "entertains" a habeas

petition if it considers the petition on the merits, even if it subsequently determines that a hearing

is unnecessary. See also Hartford Fire Ins. Co. v. California, 509 U.S. 764, 813 (1993) (Scalia,

J, dissenting) (recogniziag distinction between subject matter jurisdiction to adjudicate a claim

and substantive limitations of statute). Thus, "[b]y statute, a federal habeas court has jurisdiction

over any claim that a prisoner is ‘in custody in violation of the Constitution or laws' of the United

States." Withrow v. Williams, 507 U.S. 680, 716 (1993) (Scalia, J., concurring in part and

dissenting in part). See also J. Liebman & R. Hertz, Federal Habeas Corpus Practice and

Procedure § 8.1 (2d ed. 1994), at 191. In interpreting another 1996 amendment, this Court

reemphasized this longstanding distinction between federal courts’ subject matter jurisdiction to -

"entertain" petitions for habeas corpus and the standards that govern whether such petitions

should be granted. Felker v. Turpin, 116 S. Ct. 2333, 2337 (1996).

Once the prerequisites for subject matter jurisdiction are established, the district

court then considers other statutory and judicially recognized limitations on habeas corpus relief.

See 28 U.S.C. § 2243 (a judge "entertaining an application for a writ of habeas corpus shall

forthwith award the writ or issue an order directing the respondent to show cause why the writ

should not be granted, unless it appears from the application that the applicant or person detained

is not entitled thereto"). These requirements affect the scope of federal review, but are not

jurisdictional ard can be waived by the State if they are not asserted in a timely manner. These

requirements include the bar against retroactive application of new rules, the exhaustion

requirement, and the procedural default rule. See Schiro v. Farley, 510 U.S. 222, 228 (1994) (bar

to retroactive application of new rules is not jurisdictional and can be waived); Estelle v. Smith,

451 U.S. 454, 468 n.12 (1981) (procedural default defense can be waived); Granberry v. Greer,

481 U.S. 129, 136 (1987) (exhaustion defense is not jurisdictional and can be waived); see also

McCleskey v. Zant, 499 U.S. 467, 482 (1991) (State bears burden of pleading abuse of writ).

The distinction between jurisdictional requirements and substantive requirements

for relief was carefully maintained in the 1996 amendments. Certain of the 1996 amendments

delineate circumstances under which a judge is not "required to entertain" a petition or under

which petitions "need not be entertained." 28 U.S.C. § 2244(a), (b). Other 1996 amendments --

including the amendment to Section 2254(d) at issue here -- simply delineate circumstances under

which a court should not "grant" relief when adjudicating a petition within its jurisdiction. See 28

U.S.C. § 2254(d).

In the instant case, the State invites the Court to ignore this longstanding

distinction between jurisdictional requirements and substantive limitations on the right to relief.

This Court should reject the State's invitation. As this Court recognized in Felker, the implication

of restrictions on federal courts' jurisdiction is not favored. 116 S. Ct. at 2338-39. Congress

must expressly impose any such jurisdictional restrictions, and the 1996 amendment to Section

2254(d) does not do so.

The legislative history also supports the conclusion that the 1996 amendment to 28

U.S.C. § 2254(d) was not intended to be jurisdictional. Senator Kyl introduced another

amendment to the same bill providing that "an application for a writ of habeas corpus on behalf of

a person in custody pursuant to a judgment or order of a State court shall not be entertained by a

10

court of the United States unless the remedies in the courts of the State are inadequate or

ineffective to test the legality of the person's detention." 141 Cong. Rec. S. 7803-1, S. 7829. The

Senate rejected that amendment and instead approved the language ultimately codified in

amended Section 2254(d), restricting the scope of federal review of the merits of federal claims,

but placing no restrictions on federal judges’ jurisdiction to "entertain" such claims. See id. at S.

7849

3. The decision below does not conflict with any of this Court's decisions.

The State contends that the decision below conflicts with language - footnote 2 of this Court's

decision in Sumner v. Mata, 449 U.S. 539 (1981), and with this Court's decision in Louisville &

Nashville R.R. v. Mottley, 211 U.S. 149 (1908). In Sumner, this Court considered the effect of

state court factual findings despite the State's failure to make any argument based on the effect of

such findings in the court of appeals. In Mottley, this Court held that appellate courts have a duty

to make sure that lower courts do not exceed their jurisdiction. The Seventh Circuit's statement

in Emerson is not inconsistent with either of these precedents.

The district court in Sumner had denied habeas relief. Without considering the

substantive limitations imposed by Section 2254, the court of appeals reversed and directed the

district court to grant relief. A careful reading of Sumner makes clear that this Court was

principally concerned with the Ninth Circuit's failure to "apply" the controlling substantive law as

"mandated by the statute." 449 U.S. at 547. Although the Court referred in footnote 2 to the

district court's "jurisdiction," id. at 547 n.2, it also referred to "certain limitations on [federal

courts'] authority specifically set forth in 28 U.S.C. § 2254(d)," id. at 544, to "the limited nature

of the review provided federal courts by 28 U.S.C. § 2254," id. at 541, to "the limited nature of

11

the review provided by § 2254," id. at 550 n. 3, and to "the role to be played by the federal courts

in the exercise of the habeas corpus jurisdiction conferred ... by 28 U.S.C. § 2254." Id. at 543.

The specific statutory provision at issue in Sumner, now amended and renumbered as 28 USC §

2254(e), created a rebuttable presumption of correctness for state court factual findings -- a

presumption that can be overcome in eight different ways. This Court chastised the court of

appeals for ignoring the statute's substantive provisions governing federal habeas review and

therefore remanded for further consideration of the merits of the case. The Court said nothing

about dismissing for want of subject matter jurisdiction, which is the "only function remaining to

the court" if subject matter jurisdiction is lacking. Ex Parte McCardle, 74 U.S. (7 Wall.) 506, 514

(1869).

Moreover, whatever Sumner says about the nature of the 1966 amendments to

Section 2254, it says nothing about the 1996 amendment at issue here. Sumner does not in any

way question the longstanding distinction between jurisdictional prerequisites for considering

habeas petitions and substantive limitations on federal habeas courts’ authority to grant relief. Nor

does Sumner hold that all provisions of Section 2254 are jurisdictional and hence not waivable.

Indeed, this Court's more recent subsequent decisions clearly establish that many substantive

limitations on habeas relief are not jurisdictional and can be waived. See, e.g., Granberry, 481

US. at 136.

For the reasons explained above, the Act's amendment to Section 2254(d) cannot

plausibly be read as affecting district courts’ subject matter jurisdiction, let alone as divesting

district courts of subject matter jurisdiction after the entry of final judgment in the district court.

The district court issued the writ with respect to Emerson's sentence and entered final judgment

12

more than a year before the Act became law. Thus, the Seventh Circuit's comment that amended

Section 2254(d) "affects the scope of federal judicial review of state court determinations rather

than the power of review" is not inconsistent with this Court's decisions.

4. Certiorari should be denied because application of amended Section

2254(d) would not affect the result in this case. Even if one assumes, arguendo, that the Seventh

Circuit's comment with respect to whether Section 2254(d) is jurisdictional was incorrect,

certiorari should nevertheless be denied, because application of the amended version of Section

2254(d) to the facts of this case would not affect the result. Pursuant to amended Section

2254(d), a federal court may not issue a writ of habeas corpus "with respect to any claim that was

adjudicated on the merits in State court proceedings unless the adjudication of the claim -- (1)

resulted in a decision that was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States; or (2) resulted

in a decision that was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding." Even if amended Section 2254(d) applied to Emerson's

petition, it would not affect the result in this case because (1) the Illinois state courts never

considered the merits of the claim on which Emerson was ultimately granted relief, (2) even if the

Illinois Supreme Court's decision on direct appeal is regarded as a decision on the merits of

Emerson's claim of ineffective assistance of counsel at sentencing, that decision was contrary to

this Court's precedents or involved an unreasonable application of those precedents, and (3) to the

extent that the Illinois Supreme Court's decision on direct appeal is regarded as containing any

determinations of fact, such determinations were unreasonable.

13

On direct appeal, Emerson contended that Sammons' failure to present mitigating |

evidence constituted ineffective assistance of counsel. The Illinois Supreme Court rejected that

argument, holding that "failure to present any evidence in mitigation does not automatically

constitute ineffective assistance of counsel," and noting that the record before the court did not

reveal what mitigating evidence, if any, was available. People v. Emerson, 122 Ill. 2d 411, 439,

522 N.E.2d 1109, 1120 (1987) (emphasis added). Under Illinois law, Emerson was not permitted

to place the available mitigating evidence before the court on direct appeal, because that evidence

was not part of the trial record. See, e.g., People v. Morris, 229 Ill. App. 3d 144, 166, 593

N.E.2d 932, 947, appeal denied, 146 Ill. 2d 644, 602 N.E.2d 468 (1992) (refusing to consider

ineffective assistance of counsel claim based on trial counsel's failure to investigate possible alibi

witnesses); People v. Reimolds, 92 Ill. 2d 101, 106-07, 440 N.E.2d 872, 875 (1982) (scope of

direct appellate review is limited to matters appearing from the face of the trial record). Nor did

Emerson have the opportunity to develop or supplement the record with facts concerning his

Sammons' failure to investigate available mitigating evidence, failure to prepare for the capital

sentencing hearing, and failure to advise Emerson as to the consequences of not presenting

mitigating evidence.

Accordingly, the Illinois Supreme Court could not and did not consider on direct

appeal any claim of ineffective assistance of counsel at sentencing based on Sammons' failure to

investigate or present specific mitigating evidence, failure to prepare for the sentencing hearing, or

failure to advise Emerson about the consequences of not presenting such evidence. This claim

was presented at every stage of Emerson's state post-conviction proceedings, but the state courts

refused to consider the claim on the merits. Therefore, the claim on which Emerson prevailed in

14

the federal district court and the court of appeals -- a claim of ineffective assistance of counsel at

sentencing based on Sammons' failure to investigate and present specific, available mitigating

evidence and failure to advise Emerson as to the consequences of not presenting such evidence --

was never "adjudicated on the merits in State court proceedings," and amended Section 2254(d)

therefore has no application to Emerson's claim.

Even if the Illinois Supreme Court's decision on direct appeal is regarded as an

adjudication on the merits of Emerson's claim of ineffective assistance of counsel at sentencing,

that decision was contrary to or based on an unreasonable interpretation of established federal law

as established by this Court. Remarkably, the Illinois Supreme Court's decision on direct appeal

neither discusses nor cites this Court's seminal decisions concerning ineffective assistance of

counsel in Strickland v. Washington, 466 U.S. 668 (1984), and United States v. Cronic, 466 U.S.

648 (1984). The Illinois Supreme Court completely ignored this Court's recognition in Strickland

that trial counsel's effectiveness should be assessed based on "all the circumstances." See

Strickland, 466 U.S. at 691. Instead, it purported to consider Sammons’ effectiveness based

solely on circumstances apparent from the trial transcript or the record on direct appeal. The

Illinois Supreme Court also ignored this Court's determination that an attorney's strategic decision

made after less than complete investigation are entitled to deference only "to the extent that

reasonable professional judgment supports the limitations on the investigation." Id. Furthermore,

the Illinois Supreme Court purported to construe isolated comments by Emerson as a waiver of

Emerson's right to present mitigating evidence, without determining that Emerson's waiver was

intelligent, voluntary, and knowing, as required by numerous decisions of this Court. See Johnson

v. Zerbst, 304 U.S. 458, 465 (1938); Gardner v. Florida, 430 U.S. 349, 361 (1977); Schneckloth

15

v. Bustamonte, 412 U.S. 218, 237-38 (1973); Brady v. United States, 397 U.S. 742, 748 (1970);

Brookhart v. Janis, 384 U.S. 1, 7 (1966); Von Moltke v. Gillies, 332 U.S. 708, 729 (1948);

Glasser v. United States, 315 U.S. 60, 71 (1942).

Under these circumstances, the Illinois Supreme Court's rejection of Emerson's

claim of ineffective assistance of counsel at sentencing -- even if it is regarded as an adjudication

of the claim on which Emerson subsequently obtained relief in federal court -- was clearly

contrary to this Court's precedents or based on an unreasonable interpretation of those

precedents. Indeed, the Seventh Circuit's unanimous conclusion that Emerson was deprived of

the effective assistance of counsel at sentencing was based squarely on Strickland, not on

subsequent decisions of the Seventh Circuit or other inferior federal courts. Accordingly,

Emerson would have been entitled to relief even if amended Section 2254(d) applied.

Finally, to the extent the Illinois Supreme Court adjudicated Emerson's claim of

ineffective assistance of counsel at sentencing, and to the extent that court's decision is regarded

as containing any determinations of fact, such determinations were plainly unreasonable. The only

conceivable factual determination on this issue was the Illinois Supreme Court's observation on

direct appeal that "counsel's conduct at the sentencing hearing was consistent with the defendant's

stated wishes." Emerson, 122 Ill. 2d at 439-40, 522 N.E.2d at 1121. As the Seventh Circuit

explained in its decision below, this conclusion was patently unreasonable, in light of ali the

circumstances, including Sammons’ concession of guilt in closing argument the day before

sentencing, Emerson's resulting loss of confidence in Sammons, Sammons' failure "to conduct any

investigation, however brief, into the possible existence of mitigating circumstances," Sammons'

failure to "advise Emerson whether to try to present evidence of such circumstances," the failure

16

of both Sammons and the trial judge to "warn Emerson of the fell consequences of failing to

establish some mitigating circumstances," and Emerson's ignorance of "what a) investigation of

his personal history would bring out that might help him with the jury." Emerson, 91 F.3d at 906-

07. As the Seventh Circuit concluded, in light of all of these circumstances, it is simply not

reasonable -- or even "possible" -- to say "that Emerson would have refused to permit argument

or evidence no matter what [trial counsel] or the trial judge had said and done." Id. at 906. Any

purported factual.determination to the contrary was wholly unreasonable. For this reason as well,

Emerson would be entitled to relief even under the new standard set forth in amended Section

2254(d), and granting certiorari to decide whether that standard should have been applied to

Emerson's case would therefore nct affect the outcome of this case.

II. THIS COURT SHOULD NOT GRANT CERTIORARI TO REVIEW A CLAIM

THAT THE COURT OF APPEALS MISAPPLIED STRICKLAND V.

WASHINGTON,

The State's second question in reality presents nothing more than a contention that

the Seventh Circuit .nisapplied a properly stated rule of law to the facts of this case. Contrary to

the State's assertions (Pet., pp. 11, 14), the Seventh Circuit did not hold that Sammons was per se

ineffective for failing to present mitigation evidence at the capital sentencing hearing. Instead, the

Seventh Circuit expressly recognized that in certain circumstances, it may be a sound defense

strategy not to offer evidence of mitigating circumstances. Emerson, 91 F.3d at 906 (citing

Darden v. Wainwright, 477 U.S. 168, 186 (1986)). In this case, however, Sammons’ admitted

failure to investigate any of the extensive available mitigating evidence rendered him totally

incapable of discharging his professional obligation to advise Emerson as to the propriety of *ot

17

presenting such evidence and thereby “brought his representation of Emerson well below the

minimum level of representation." Id. (citing Burger v. Kemp, 483 U.S. 776, 790-95 (1987)).

As it did below, the State insists that Sammons' failure to present mitigating

evidence was appropriate in light of Emerson's "express desires" not to introduce such evidence.

(Pet., p. 15)- As explained in more detail, at pages 4-6, supra, the Seventh Circuit expressly

considered Emerson's statements and concluded that Emerson’s purported “waiver” of his

constitutional right to put on mitigating evidence “cannot be considered a knowing waiver to

which he should be held.” Emerson, 91 F.3d at 906. This Court has expressly recognized the

need for waivers of fundamental constitutional rights to be "intelligently, voluntarily, and

knowingly" made. Johnson, 304 U.S. at 465.

CONCLUSION

For the foregoing reasons, respondent respectfully requests that the State’s

petition for a writ of certiorari be denied.

Respectfully submitted,

PRENTICE H. ee JR.

LINTON J. CHILDS*

JEFFREY B. CHARKOW

Sidley & Austin

One First National Plaza

Chicago, Illinois 60603

(312) 853-7000

Counsel for Respondent

*Counsel of Record

Dated: February 3, 1997.

18

SIDLEY & AUSTIN

A PARTNERSEFIP INCLUDING PROFESSIONAL CORPORATIONS

ONE FIRST NATIONAL PLAZA

sia CHICAGO, ILLINOIS 60603 wre ene roe s wrens WE.

LOS ANGELES TELEPHONE 312 853 7000 LONDON

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WRITER'S DIRECT NUMBER

(312) 653-2211

February 3, 1997

William K. Suter

Clerk of Court

Supreme Court of the United States

One First Street, N.E.

Washington, D.C. 20543

Re: Gilmore v. Emerson (No, 96-1043)

Dear Mr. Suter:

Enclosed for filing are an original and eleven copies of respondent Dennis

Emerson's Brief in Opposition to the Petition for a Writ of Certiorari filed by Jerry Gilmore; Proof

of Service of tie brief; an original and eleven copies of a Motion for Leave to Proceed In Forma

Pauperis; and Proof of Service of the Motion.

Please file stamp and return the extra copy of the Brief in Opposition and the

Motion for Leave to Proceed In Forma Pauperis in the envelope provided. Thank you.

Sincerely,

hick. VLE

Linton J. Childs Beier

| RECEIVED

Enclosures |

Cc: All Counsel of Record FEB 5 1997

1 OFFICE OF inc uccrKk

SUPREME COURT, U.S.

No. 96-1043

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

JERRY GILMORE, WARDEN,

PONTIAC CORRECTIONAL CENTER, Petitioner,

V.

DENNIS EMERSON, Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit.

PROOF OF SERVICE

I, Jeffrey B. Charkow hereby certify that on this 3rd day of February, 1997, three

vies of Dennis Emers-n's Brief in Opposition to Petition for a Writ of Certiorari in this case

re mailed, first class postage prepaid, to James E. Ryan, Attorney General of the State of

nois, 100 West Randolph Street, 12th Floor, Chicago, Illinois 60601, Phone: (312) 814-3000;

leen C. Anderson, Assistant Attorney General, 100 West Rendolph Street, 12th Floor,

1icago, Illinois 60601, (312) 814-2232; and to Richard A. Devine, Cook County State's

ttorney, 309 Richard J. Daley Center, Chicago, Illinois 60602, Phone (312) 443-5440, counsel

r the Petitioner herein. I further certify that all parties required to be served have been served.