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Extraordinary Facts and a Disappointing Opinion

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The US Supreme Court decided the decidedly odd procedural default case of Maples v. Thomas this morning.  "The sole question this Court has taken up is whether, on the extraordinary facts of Maples' case, there is 'cause' to excuse his procedural default."  As noted in my post of July 13, the essential facts are:

Maples is a double murderer who was represented by the big-name New York law firm of Sullivan & Cromwell for his state collateral review petition.  However, the big shots blew the deadline to appeal because (1) they didn't bother to inform the state court of a change in the attorneys handling the case; (2) the firm had a strange policy of not letting the attorneys use the firm name in their appearance -- even though the firm touts the work on its web site; and (3) when notices of decision addressed to the individual, departed attorneys arrived at the firm's mail room, the mail room sent them back to the court.

On "the extraordinary facts," it is not too surprising that the Court answered the question "yes."  See my post after the oral argument.  As predicted, the resulting precedent is narrow, at least for the time being.  One aspect of the opinion that I find particularly disappointing is what it does and does not say regarding who is to blame for the mess.

First, and most importantly, is the narrowness of the opinion.  The Court does not back off from Coleman v. Thompson.  Attorney error in habeas is not "cause" for default, even something as basic as blowing an appeal deadline.  "We do not disturb that general rule."  Abandonment is distinguished from error.  Look for petitioners' briefs to push an ever-expanding definition of abandonment from this point onward.  Hopefully, the courts won't go for it and not much damage will be caused.
Justice Ginsburg's opinion does two odd things regarding the blame for this mess in this case.  There is a long passage about the way Alabama handles representation in state collateral review in capital cases.  As Justice Alito notes in his concurrence and Justice Scalia notes in his dissent, this is irrelevant to the case.  Regardless of how he got it, Maples got representation from the big-name firm that very few Americans can afford.  As Justice Alito says, "I have little doubt that the vast majority of criminal defendants would think that they had won the lottery if they were given the opportunity to be represented by attorneys from such a firm."

Having needlessly delivered a public slap to the State of Alabama, Justice Ginsburg curiously fails to give Sullivan & Cromwell its much-deserved slap for creating the problem in the first place.  The firm takes these cases.  It takes credit for them in its promotional material.  Yet it requires its associates to appear in their personal names only, without the firm's name.  The mailroom mess-up was the entirely foreseeable result of this stupid policy.  On top of that, the firm failed to have procedures in place, or failed to follow them, regarding the entering of new appearances when the attorneys of record left the firm.  This is a Three Stooges level of incompetence.  Clients who pay this firm big bucks can justly ask if they are warranted in doing so.

When Justice Ginsburg does get around to slapping S&C, it is only for continuing representation after the development of a conflict between advancing their client's interest and protecting their own reputation.

What happens next in the case?  The Supreme Court having decided that there was "cause" for the default, it directs the lower federal courts to determine if there was "prejudice."  When the underlying claim is ineffective assistance of trial counsel, as it is in this case, there is not much difference between the "prejudice" prong of the "cause and prejudice" test for default and the "prejudice" prong of Strickland v. Washington, controlling the merits of the claim.

Does the standard of 28 U.S.C. §2254(d) apply when the case was decided on the merits in the state trial court but procedurally defaulted in state appellate court?  I think it does.  If there is no rigidly prescribed "order of battle" between procedural default and §2254(d), and I think there is not, then it might be simpler to just go straight to the "double deference" that applies when a state court has rejected a Strickland claim on the merits and deny relief under §2254(d).  Maples' claim is meritless.  See pp.28-31 of our brief.

What does this decision portend for Martinez v. Ryan?  (CJLF brief here.)  The unequivocal reaffirmation of the Coleman rule is encouraging.  Stay tuned.

1 Comment

The "abandonment" issue really irks me. Abandonment is a label, and heretofore, it applied to conscious disregard for clients' interests. At bottom, this was a case of negligence, and attorney negligence is not attributable to the state.

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