Argument recap: Maples will get, at least, a remand?
on Oct 6, 2011 at 9:59 am
One phrase that came up several times at Tuesday’s oral argument in Maples v. Thomas was “sui generis.” At issue in the case is whether a death-row inmate is barred from ever receiving federal habeas review of his constitutional claims when – through no fault of his own – his attorneys ceased acting as his representatives and missed the deadline to file his state post-conviction appeal. By the end of the oral argument, it seemed possible that the rule which the Court would ultimately issue might be effectively sui generis as well, in the sense that it might benefit only Maples. (In my preview for the blog on Tuesday, I discussed the background of the case.)
Former Solicitor General Gregory Garre, now representing petitioner Cory Maples, began by arguing that either of two scenarios, standing alone, should be enough to excuse his client’s procedural default: (1) the state’s role in failing to follow up when the orders notifying Maples’s Sullivan & Cromwell lawyers were returned unopened; or (2) the actions of the Sullivan & Cromwell lawyers in leaving the firm without notifying the court or arranging for substitute counsel. It quickly became clear, however, that several Justices were unconvinced on the first ground. They focused on the actions (or lack thereof) of Maples’s local counsel, and whether those actions might absolve the state of responsibility. They asked, for example, how the clerk of the court should know whether Maples’s local counsel in fact served primarily as a “functionary,” or why the local lawyer shouldn’t have notified the Sullivan & Cromwell lawyers even if he played a limited role in the case. And the Chief Justice highlighted the difficulty of incorporating the local counsel’s shortcomings into a rule, asking “[h]ow much . . . would he have to do to put him in a position where he was in fact representing Maples?”
Garre similarly encountered problems with regard to his second argument – that Maples’s abandonment by his two Sullivan & Cromwell lawyers also constituted cause to excuse his default. Justice Alito expressed concern that a rule “that abandonment is cause” could have sweeping implications, while Justice Scalia wondered how to draw the line “between abandonment and just plain old negligence.” Garre no doubt assuaged some of these concerns (and in the process, helped his client significantly) by being willing to agree to a “very high bar” for abandonment. And with several Justices decrying the gaps and ambiguities in the record, Garre was quick to agree that, if the Court were to hold that abandonment by an inmate’s counsel constituted the kind of “external factor” that could excuse default,” a remand would be appropriate to determine whether that high bar was met in this case.
When Alabama Solicitor General John Neiman took the podium, he too faced a barrage of questions, punctuated by frequent and friendly interjections by Justice Scalia. At one point, Neiman actually appeared to reach some common ground with Garre, with his concession that, at least in some cases, an attorney’s abandonment of his client would terminate the agency relationship between the two; he merely disputed whether Maples’s lawyers had in fact abandoned him. However, Neiman later qualified his statement, arguing that abandonment could not, standing alone, constitute cause to excuse default.
Justice Kennedy and, in particular, Justice Alito seemed annoyed with the state for allowing the case to get this far (and therefore require the federal courts to explore the outer boundaries of what may constitute sufficient “cause” for a procedural default). Why, Justice Alito asked Neiman, couldn’t the state just let Maples pursue an out-of-time appeal and allow him to get a decision on the merits of his ineffective assistance of counsel claim?
In the end, it was clear that a majority of the Court regarded Alabama’s proposed solution to the case – holding Maples strictly to the missed deadline – as unpalatable. But at the same time, the Court did not appear ready to endorse either of Garre’s proposed solutions – viz., that either the state’s actions or those of Maples’s New York attorneys could, standing alone, constitute cause to excuse his default. Instead, it seemed more probable that the Court would articulate a very narrow rule – one ticket only, anyone? – that relied on the shortcomings of both the state and the inmate’s attorneys, and would ultimately result in Maples’s case being remanded to the lower courts for application of that rule. Justice Breyer posited one such rule, asking Neiman to comment on the viability of “a rule that says, where in fact attorneys do abandon the client and the local attorney does as a matter of practice in the State do virtually nothing except to facilitate foreign representation, and where the State had cause to believe . . . that all that was true, then the State cannot assert this as an adequate ground.”
Although the rule announced by the Court’s decision may not reflect these precise contours, Cory Maples does seem likely to get at least the first step toward what (as Gregory Garre emphasized) he seeks: “an opportunity to present a serious constitutional claim of ineffective assistance of counsel to a Federal habeas court on the merits.” Whether the federal courts will find facts sufficient to establish cause, and whether he can prevail in subsequent proceedings if they do, remain to be seen.