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Habeas – Procedural Bar – Cause to Excuse

Cory R. Maples v. Thomas, USSC No. 10-63, 1/18/12, reversing 586 F.3d 879 (11th Cir. 2009)

On “the uncommon facts presented here,” the Court finds that cause existed to excuse on federal habeas review Maples’ procedural default, namely his failure to file a timely appeal of his state (Alabama) postconviction petition.

The sole question this Court has taken up for review is whether, on the extraordinary facts of Maples’ case, there is “cause” to excuse the default. Maples maintains that there is, for the lawyers he believed to be vigilantly representing him had abandoned the case without leave of court, without informing Maples they could no longer represent him, and without securing any recorded substitution of counsel. We agree. Abandoned by counsel, Maples was left unrepresented at a critical time for his state postconviction petition, and he lacked a clue of any need to protect himself pro se. In these circumstances, no just system would lay the default at Maples’ death-cell door. Satisfied that the requisite cause has been shown, we reverse the Eleventh Circuit’s judgment.

Following Maples’ capital conviction, two attorneys from “Biglaw powerhouse[]” Sullivan and Cromwell assumed representation and filed a postconviction petition in the Alabama trial court alleging ineffective assistance of trial counsel. (A local Alabama attorney nominally represented Maples, but he was a mere figurehead and otherwise irrelevant to the discussion.) While the petition was pending, the attorneys went their separate ways, neglecting to so inform either Maples or the Alabama court. The judge denied the petition in due course, the clerk sent the denial to Sullivan and Cromwell, which dutifully returned the mail as undeliverable, and the deadline for filing a state appeal lapsed. The Alabama courts refused to reinstate the appeal. On to federal court, where navigating the shoals of habeas procedure is daunting under the best of circumstances. Procedural default of a claim in state court (here, failure to appeal timely) bars federal habeas review absent “cause” for and “prejudice” from the default. Key problem facing Maples: “Negligence on the part of a prisoner’s postconviction attorney  does not qualify as ’cause,'” citing Coleman v. Thompson, 501 U. S. 722 (1991). But the Court charts a course around, rather than through, this obstacle:

A markedly different situation is presented, however, when an attorney abandons his client without notice, and thereby occasions the default. Having severed the principalagent relationship, an attorney no longer acts, or fails to act, as the client’s representative. See 1 Restatement (Third) of Law Governing Lawyers §31, Comment f (1998) (“Withdrawal, whether proper or improper, terminates the lawyer’s authority to act for the client.”). His acts or omissions therefore “cannot fairly be attributed to [the client].” Coleman, 501 U. S., at 753. See, e.g., Jamison v. Lockhart, 975 F. 2d 1377, 1380 (CA8 1992) (attorney conduct may provide cause to excuse a state procedural default where, as a result of a conflict of interest, the attorney “ceased to be [petitioner’s] agent”); Porter v. State, 339 Ark. 15, 16–19, 2 S. W. 3d 73, 74–76 (1999) (finding “good cause” for petitioner’s failure to file a timely habeas petition where the petitioner’s attorney terminated his representation without notifying petitioner and without taking “any formal steps to withdraw as the attorney of record”).

We agree that, under agency principles, a client cannot be charged with the acts or omissions of an attorney who has abandoned him. Nor can a client be faulted for failing to act on his own behalf when he lacks reason to believe his attorneys of record, in fact, are not representing him. We therefore inquire whether Maples has shown that his attorneys of record abandoned him, thereby supplying the “extraordinary circumstances beyond his control,” ibid., necessary to lift the state procedural bar to his federal petition.

The Court has no real difficulty finding abandonment and, therefore, “ample cause, we hold, to excuse the default into which he was trapped when counsel of record abandoned him without a word of warning.” Even so, Maples isn’t ready to set foot on solid ground, not by a long shot. The matter is remanded for determination of “prejudice,” the other procedural default inquiry. Presumably, this means that the court on remand will determine whether trial counsel was indeed ineffective, as alleged in the defaulted claim – which may toss Maples onto different, equally treacherous shoals (“double deference”: AEDPA deference to the state court result; deference to challenged counsel’s decision-making). For present purposes it’s enough to say that the facts (death penalty; attorney abandonment; indisputably blameless litigant) make this result unique, as the Court itself suggests throughout its discussion. Mike Sacks, as usual, efficiently distills the essence of the matter: “The Court rarely takes cases that offer no opportunity to issue a broadly applicable rule of law, even if those cases present clear cases of injustice against specific individuals. But Maples’ case presented such an extraordinary set of facts — described in a short concurrence by Justice Samuel Alito as ‘a veritable perfect storm of misfortune, a most unlikely combination of events’ — that the Court intervened on Maples’ behalf.” The result is unusually fact-specific. Sui generis, as some like to say, which is Latin for, Good luck using this case for your client.

That said, the interested observer may want to keep a watchful eye trained on the currently pending Martinez v. Ryan, which is a variation on the cause-and-prejudice inquiry, in the context of claims defaulted in the course of postconviction litigation.

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{ 2 comments… add one }
  • Robert R. Henak January 20, 2012, 9:14 am

    Two points on Maple and this post.

    First, a clarification. As I understand it, the reason why there was no potential constitutional claim of ineffective assistance or denial of post-conviction or appellate counsel based on the S&C attorneys’ abandonment of Maple is because the petition they filed in Alabama court was a collateral attack on the conviction rather than a part of the direct appeal. Unlike in Wisconsin under Rule 809.30, most states and the federal system provide for a direct appeal without allowing for post-conviction motions first. Claims such as ineffectiveness of trial counsel that are not apparent based on the record without additional factfinding then have to be raised in a collateral proceeding. See, e.g., 28 U.S.C. s.2255. Since the constitutional right to counsel currently only applies to the first appeal as of right, there is no constitutional right to counsel most places in these collateral attacks. Accordingly, Maple could not have challenged the S&C lawyers’ abandonment of him on constitutional grounds.

    In Wisconsin, claims of ineffective assistance of trial counsel can and should be raised in post-conviction motions as part of the direct appeal. Post-conviction or appellate counsel’s abandonment of the client or failure to raise a valid claim in such proceedings therefore violates the constitutional right to counsel on direct appeal and can be raised in either a s.974.06 motion or a Knight petition.

    The one place where the actual holding in Maple will have a direct impact in Wisconsin is in those situations where an attorney files a 974.06 motion or a state habeas petition on behalf of a defendant and then abandons him. Because there is no constitutional right to counsel in such proceedings, the defendant cannot claim denial or ineffectiveness of post-conviction counsel under those circumstances. However, Maple makes clear that the abandonment of counsel under such circumstances should constitute “sufficient reason” under 974.06(4), authorizing the defendant later to pursue whatever claims were lost due to counsel’s abandonment.

    The second point is that Maple reconfirms the holdings in cases such as Coleman v. Thompson and Murray v. Currier that, where a defendant is denied the assistance of counsel on direct appeal, it is patently unfair to attribute any resulting delay to the defendant.

    This is relevant in Wisconsin because the appellate courts continue to apply a laches defense to Knight petitions challenging the abandonment of defendants by counsel on direct appeal. Laches allows for dismissal of equitable claims (such as those raised in habeas) where the respondent (i.e., the state) is prejudiced due to unreasonable delay in bringing the habeas petition. Coleman, Thompson, and now Maple make clear that the defendant abandoned by counsel on the direct appeal cannot be held liable in laches to the delay caused by that abandonment.

  • admin January 20, 2012, 10:03 am

    Exactly so re: your first point, Rob, which is likely to be sharpened further by the pending decision in Martinez v. Ryan, http://www.wisconsinappeals.net/?p=5087.

    Your 2nd point (attorney-abandonment eliminates laches) may turn out to be a bit more controversial. Laches wasn’t at issue, indeed the Court mentions that when Maples was first notified about the problem, he “immediately contacted his mother,” who went to S & C to try to resolve it. Whether a court would be inclined to overlook many years of inaction might be something else. In other words, abandonment absolutely severs the principal-agency relationship, but loss of the ability to attribute the agent’s acts or omissions to the principal doesn’t necessarily mean that the latter won’t be held accountable at some point for his own acts or omissions. But it’s certainly an issue that needs to be raised and your incisive observation is well-taken.

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