In a rather extraordinary instance of judicial activism a generation ago, the Supreme Court grafted onto the federal habeas statute an important limitation on the availability of federal relief for constitutionally defective state convictions: if the state defendant procedurally defaulted on a claim in state court, then the claim cannot be the basis for federal relief unless the defendant can show cause for and prejudice from the default. The Court later held that errors by defense counsel, no matter how egregious, do not count as "cause" when the errors occurred in connection with a collateral attack on the conviction in state court. However, the Court now has an ideal opportunity to limit to this rule in Maples v. Thomas (No. 10-63), a new case presenting some extraordinary facts that the Court agreed to hear last week. Here's what happened. Maples was convicted of capital murder in Alabama and sentenced to death. Following his unsuccessful direct appeal, he mounted a collateral challenge in state trial court, arguing that his original trial counsel had failed to present important mitigating evidence that would have strengthened his position at sentencing. Although Maples had no constitutional right to counsel in making such a collateral attack, he was represented pro bono by attorneys at the New York firm Sullivan & Cromwell. However, by the time the trial judge rejected Maples' petition, Maples' attorneys had moved on. Although arrangements had been made for other Sullivan lawyers to take the case, no notice was provided to the Alabama court. So the order denying Maples' petition was mailed to the original attorneys, and Sullivan returned the envelope to the clerk of court unopened. The clerk of court then failed to take any further action to make sure that Maples himself received the order. Eventually, the time limit for appealing the order expired without Maples taking any action. After the new Sullivan lawyers sorted all of this out, they filed a federal habeas petition presenting the same claim that had been in the state-court collateral challenge, but the federal courts determined that the claim was procedurally defaulted because Maples failed to make a timely appeal in the state system. The Supreme Court will now decide whether there was legally adequate "cause" for Maples' default. Although the existing doctrine is not favorable to Maples, the equities seem to tip strongly in his direction: his lawyers' error was not just a tactical judgment call, but an indisputable failure to discharge a clear responsibility to notify the court of a substitution in counsel; the clerk of court was also complicit in the train wreck for failing to take action when the order was returned from Sullivan unopened; and (for heaven's sake!) this is a capital case. But will the Court be able to find a satisfactory doctrinal hook to grant relief from the default? There seem to be three possibilities. First, the Court might focus on the clerk of court's role, and distinguish Maples from other counsel error cases on the basis of state complicity. Second, the Court might focus on the unusual and extreme nature of the lawyers' error and hold that they were not acting as Maples' counsel at all in connection with the missed deadline. Or, third, the Court might simply put all of the circumstances together, emphasize the equitable nature of the habeas remedy, and just conclude that this is the sort extreme fact pattern that warrants a relaxation of the normal rules. One way or another, I hope the Court will use Maples as an opportunity to put some limitations on a doctrine that has made many defendants pay a stiff price indeed for their lawyers' mistakes.
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