Whether a federal court can excuse a lapsed deadline for filing a habeas corpus petition because a court clerk failed to provide notice to two of petitioner’s three counsel of record and petitioner's attorneys could no longer be said to be acting on petitioner's behalf.
Upon receiving a state-court-issued death sentence, petitioner Cory Maples submitted a claim of ineffective assistance of counsel in post-conviction proceedings and petitioned for an evidentiary hearing. The court clerk took no action when two of three deliveries giving notice that the petition had been denied were returned because two of Maples’s attorneys of record had left their firm. Shortly thereafter, the deadline to submit a federal habeas claim lapsed. Maples now argues that the court clerk’s failure to notify him that his petition for an evidentiary hearing was denied caused the default and violated his due process rights. Additionally, he argues that the actions of his attorneys also constitute an external cause entitling him to federal habeas review. Respondent, the Commissioner of the Alabama Department of Corrections, argues that the clerk successfully notified one attorney of record, and that Supreme Court precedent places the risk of attorney error on the petitioner during the post-conviction phase. This decision could affect how much risk clients bear for poor attorney performance, and whether a court clerk’s failure to take additional steps to notify attorneys of record constitutes an external cause to the defendant and valid excuse for procedural default.
Questions as Framed for the Court by the Parties
Whether the Eleventh Circuit properly held - in conflict with the decisions of the Supreme Court and other courts - that there was no “cause” to excuse any procedural default where petitioner was blameless for the default, the State's own conduct contributed to the default, and petitioner's attorneys of record were no longer functioning as his agents at the time of any default.
Maples was found guilty of capital murder and sentenced to death for killing two of his friends, each of whom he shot in the head with a .22 caliber rifle after a night of drinking. Once apprehended, Maples confessed to the police that he had been drinking but “didn’t feel very drunk,” shot both victims, and didn’t know why he had done it. Despite Maples’s attempt to argue that his acts did not constitute capital murder, the jury’s verdict sentenced him to death by a vote of ten to two. On direct appeal, Maples’s conviction and death sentence were affirmed.
Maples then filed a petition for post-conviction relief pursuant to Alabama Rule of Criminal Procedure 32, alleging ineffective assistance of counsel. The trial court issued an order (the “Rule 32 Order”) dismissing the petition seventeen months later. The court clerk sent copies of the Rule 32 Order to Maples’s two attorneys of record, Jaasi Munanka and Clara Ingen-Housz from the New York law firm Sullivan & Cromwell (“S&C”), and to Maples’s local Alabama counsel, John Butler. At this point, Munanka and Ingen-Housz had left S&C. S&C had arranged for attorneys to assume Maples’s representation, but, nonetheless, the Rule 32 Order returned to the court clerk unopened with the message “Left Firm.” Meanwhile, Butler took no action at all. Therefore, no notice to appeal the dismissal was filed within the 42 days provided by Alabama Rule of Appellate Procedure 4(b)(1).
John Hayden, the State’s attorney, wrote Maples directly to inform him that the deadline for appealing the Rule 32 Order had passed, but that Maples might still file a federal habeas corpus petition. Upon learning of this, Maples’s mother contacted S&C. S&C then requested that the Rule 32 Order be reissued so that a timely appeal could be filed. Unwilling to ignore counsels’ previous mistakes, the trial court denied the request. Maples then petitioned the Alabama Court of Criminal Appeals and the Alabama Supreme Court for a writ of mandamus requesting an out-of-time appeal. Both denied the requests.
Meanwhile, Maples filed a federal habeas petition under 28 U.S.C. § 2254 claiming ineffective assistance of counsel and that he was entitled to a jury instruction explaining manslaughter due to voluntary intoxication. The district court stayed the habeas petition until the state appellate courts denied Maples’s out-of-time appeal requests. Thereupon, the district court denied Maples’s habeas petition. Among the district court’s findings were that Maples’s failure to file a timely appeal of the dismissal of his Rule 32 petition procedurally defaulted his ineffective assistance claims, and that even if the default resulted from failures of counsel, because there is no constitutional right to post-conviction counsel, those failures do not establish adequate cause.
The Supreme Court has held that in considering requests for federal habeas corpus petitions, federal courts may excuse a procedural default in state court when the petitioner can show an external cause for the default, and prejudice from the default. Conversely, a procedural default may not be excused when it can be attributed to the actions of the petitioner. In this case, the Supreme Court considers what constitutes an adequate cause external to the petitioner.
First, the Supreme Court will consider whether the cause of Maples’s procedural default is “fairly attributable” to the court clerk’s failure to notify Maples that notice was not received by his pro bono attorneys. Second, the Court will consider whether the conduct of Maples’s attorneys may, in itself, constitute an adequate external cause for the petitioner’s procedural default in state court. .
Inadequate Notice as External Cause
First, Maples compares this case with Jones v. Flowers, 547 U.S. 220 (2006), a case of failed notice of divestment of a property interest. In such actions, the Supreme Court determined that a state may not “shrug [its] shoulders and say ‘I tried,’” upon learning that notice did not reach the intended recipient on first attempt. Maples argues that if more than a simple attempt is required to provide adequate notice in a case of property interest, then due process requires meeting at least a similar threshold in a case concerning capital punishment. Second, Maples argues that the state’s interest in not providing notice is less in this case than in Jones. Here, it would have been relatively easy to find the departed attorneys because their firm could have supplied the information. Finally, Maples argues that the state took even fewer steps to notify him of the failure to contact his attorneys than the inadequate notice in Jones.
Thomas argues that Maples’s reliance on Jones is misplaced, because there all forms of notice were returned. Here, on the contrary, Maples’s local counsel received notice.Moreover, Thomas notes that in Alabama notice is sufficient if received by any one counsel when a defendant has multiple attorneys. Therefore, because Maples’s local attorney of record received notice, requirements of both state law and federal due process were satisfied. As such, Maples is foreclosed from using the argument that the court clerk failed to provide him notice because his pro bono attorneys were unreachable.
However, Maples counters that, because Alabama relies heavily on the use of out-of-state pro bono attorneys, the requirement for complying with due process should be greater than simply notifying the local attorney. . Under Alabama’s current system, Maples notes that local attorneys often play no real role in representing the client. Maples argues that, under Supreme Court precedent, this peculiar fact should be taken into account when addressing the unique circumstances surrounding each case of due process. . In light of this, Maples argues that a state cannot reasonably rely on notice being adequate under circumstances where only the local attorney has received notice. .
Thomas believes that Maples mischaracterizes the Alabama system and insists that local counsel plays a relevant and critical role. In fact, Alabama bar admission requires that local attorneys accept all relevant court notices and be jointly and severally liable for their representation as local counsel. This being the case, Thomas contends that the court clerk was reasonable to rely on notice being adequate when it reach Butler. Moreover, Thomas notes that the test inColeman v. Thompson is two pronged. Maples must show both “cause” and “actual prejudice.” Thomas argues that the Court has described the second prong as requiring petitioners prove their innocence. Therefore, Maples does not even attempt to meet the second prong in Coleman, and has failed to show that a denial of his habeas claim would constitute actual prejudice against him.
Attorney Error as External Cause
In the alternative, Maples argues that, if the actions of the court clerk do not constitute a cause external to Maples which excuse the default, the actions of Maples’s pro bono attorneys do. Maples cites a concurrence in Hollandv. Florida stating that “common sense dictates that a litigant cannot be held constructively responsible for the conduct of an attorney who is not operating as his agent in any meaningful sense of that word.” Maples argues that attorney abandonment or disloyalty to a client constitutes cessation of that attorney's agency in any meaningful sense, and therefore, courts should not impute attorney error to the clients they serve.
However, Thomas contends that this case falls clearly within the precedent set in Coleman, which held that a petitioner “must bear the risk of [attorney] errors” in post-conviction actions. Further, Thomas also relies on Holland, where the majority stated that a petitioner bears these risks “without qualification.” Thomas reasons that the very definition of agency commands such risk allocation. In identifying attorney error as an external cause of default, Thomas argues that Maples must show two things. First, Maples must show that his attorneys had ceased their role as his agents and became “external to [his] defense.” Second, Maples must show that, as external factors, his attorneys “impeded his efforts to comply with the state’s procedural rule." ( In fact, Thomas argues that Maples fails even the first prong: while Maples’s attorneys committed mistakes, they were never actually external to Maples’s case. Despite the departure of Maples's pro bono attorneys of record from S&C, Thomas insists that Maples maintained an attorney-client relationship with another attorney at the firm, thereby maintaining that firm’s agency.
In response to the state’s argument that Coleman puts the risk of attorney error on the client, Maples contends that Coleman is, in fact, more limited. Coleman, Maples says, held that attorney error in post-conviction proceedings cannot be “imputed to the State.” In this sense, Maples argues that a petitioner may still be excused from default if the attorney error is external. In other words, if an attorney abandons a client, this may not be imputed to the state because such counsel is not guaranteed by the state post-conviction, but such abandonment may still constitute an “external cause” excusing default.
Federal courts use habeas corpus review to look past such things as a procedural default in state proceedings and to consider whether any constitutional right has been violated. During such a review, the Supreme Court weighs the costs of federal habeas review against equitable principles that would encourage excusing the default. Maples argues that because he was not personally at fault and had been effectively abandoned by counsel, there is adequate cause to excuse the default. Respondent Commissioner asserts that interests in federalism and finality, together with the clear precedent set forth in Coleman v. Thompson, justify finding no cause.
Importance of Equity in Habeas Review
In support of Maples, the Alabama Criminal Defense Lawyers Association (“ACDLA”) emphasizes the history and importance of equity in habeas review and insists on the need for flexibility and circumstance-based analysis in such cases. ACDLAsEquity and justice, ACDLA argues, cry out against an absolute rule that would penalize defendants, such as Maples, for effective abandonment by his attorneys.
Thomas, however, insists that there is no inequity in adhering to a clear rule allocating risk of attorney error to the petitioner. Texas and other states (“Texas”) supporting respondent argue that there is no workable limitation to the exception sought by Maples and that to find cause for procedural default here would create unnecessary uncertainty. Texas’sTo support these concerns, Texas points to recent petitions seeking to further expand the exception sought by Maples; floodgates, Texas argues, that could be opened by poking a hole in the Coleman rule.
Satisfying Due Process
ACDLA argues that Maples’s case demonstrates the potential for due process violations under the capital punishment system in Alabama. Maples agrees, noting that Alabama’s capital punishment system is somewhat unique in its reliance on out-of-state counsel to represent indigent capital inmates during the post-conviction stage. This reliance, Maples argues, makes it “unreasonable” for court clerks to not take extra measures to confirm that notice reaches out-of-state attorneys of record.
However, Thomas insists that due process is not compromised because Butler received notice, even if Ingen-Housz and Munanka did not. Moreover, Thomas disagrees with any characterization that the role of local counsel in the Alabama system is negligible. Texas adds that, since collateral review under state habeas corpus is not a constitutional right, neither is the right to effective assistance of counsel in such proceedings. Therefore, allocating the risk of attorney error to the petitioner does not violate the Constitution.
Client Accountability for Attorney Conduct
Some amici decry the Alabama system as severely lacking qualified counsel for indigents, insisting that clients like Maples not be punished for having unqualified lawyers over whose competency they have no control. Furthermore, ABPJ claims that the Alabama system does not adequately shoulder the costs of representing indigents, passing the costs directly to representation whose counsel suffers due to grossly inadequate compensation. In fact, one local attorney interviewed declared he would rather go to jail than represent another capital defendant. Thus, ABPJ and Maple argue that it would be inherently unjust, under such conditions, to impute Butler’s failures to Maples.
Texas, on the other hand, insists that both Butler and S&C always represented Maples during the post-conviction phase and thus Maples’s complaint lies not with the system but with his attorneys. Even so, Texas points out that 28 U.S.C. § 2254(i) provides that post-conviction attorney error does not offer grounds for relief, thereby foreclosing Maples’s request. To allow Maples a loophole by claiming that he did not have any actual representation at the time of the default would, Thomas claims, invite a flood of similar claims seeking to mask poor attorney advocacy as none at all. Therefore, Thomas insists the state and federal governments’ interest in finality counsels against interpreting attorney conduct as a potentially “external cause.”
The Supreme Court’s decision in this case could affect what constitutes an “external cause” and valid excuse for procedural default for the purposes of federal habeas review. Maples argues that the court clerk’s failure to notify him that his petition for an evidentiary hearing was denied was “external” and caused his procedural default, and violated his due process rights. Alternatively, he argues that when his counsel effectively abandoned him, this also excused the default. Commissioner Thomas argues that the clerk successfully notified one attorney of record, and that Supreme Court precedent places the risk of attorney error on the petitioner during the post-conviction phase.
The authors would like to thank former Supreme Court Reporter of Decisions Frank Wagner for his assistance in editing this preview.
• New York Times, Sara Rimer: Questions of Death Row Justice for Poor People in Alabama (Mar. 01, 2000),
• LII: Habeas Corpus
• LII: Due Process
• LII: Fourteenth Amendment