Maples v. Thomas – Oral Argument – October 04, 2011

Media for Maples v. Thomas

Audio Transcription for Opinion Announcement – January 18, 2012 in Maples v. Thomas

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John G. Roberts, Jr.:

We will hear argument first this morning in Case 10-63, Maples v. Thomas.

Mr. Garre.

Gregory G. Garre:

Thank you, Mr. Chief Justice, and may it please the Court:

Two factors distinguish this case from those in which the Court has found cause lacking to excuse a default: First, the State itself had a direct hand in the extraordinary events leading up to the default in this case; and second, the actions of Maples’ attorneys, which rise to the level of abandonment, are not attributable to Maples under agency law or other principles that this Court has invoked in determining when attorney conduct may be imputed to a client.

For either or both of those reasons, the default at issue in this case is not fairly attributable to Cory Maples and the contrary decision of the Eleventh Circuit should be reversed.

John G. Roberts, Jr.:

You talk about the State’s role.

I assume that you are talking about there is the failure to take action after the return of the notices?

Gregory G. Garre:

I think that — that’s right, Mr. Chief Justice.

I would couple that, though, with the fact that the State initially set up a system for the representation of indigent capital defendants that relies extremely heavily on the good graces of out-of-State counsel to represent indigent capital defendants in Alabama.

John G. Roberts, Jr.:

Well, put — putting that — that to one side, what if only one of the three notices had been returned?

Gregory G. Garre:

I think — if only one from the out-of-State pro bono counsel?

John G. Roberts, Jr.:

Right.

Gregory G. Garre:

I think that would be a different case.

I think what’s remarkable about this case is you have both out-of-State attorneys, the notices come back marked

“return to sender, left firm. “

in an envelope, and the clerk does nothing.

And what’s extraordinary about that, Mr. Chief Justice, is that the system in this case relies on the out-of-State attorneys to–

Antonin Scalia:

Who says so?

Who says that they rely on — you have a local attorney and you have to have a local attorney for the case, don’t you?

And — and you want us to believe that the local attorney is — has no responsibility for the case at all?

Is this really what the — what the law requires?

I — I think there is a serious ethical obligation when he has the — when he gets the notice.

He’s one of the attorneys for your client.

And he got the notice, right?

That one was not returned.

Gregory G. Garre:

–That’s correct, Justice Scalia.

Antonin Scalia:

He failed to check with — with the New York lawyers who were working with him.

Why is it — why is the State responsible for that?

Gregory G. Garre:

We have three points on the local counsel, Your Honor.

First, the record shows that the notice is not attributable to Mr. Maples because Mr. Butler had disclaimed any relationship apart from facilitating the admission of the out-of-State attorneys.

Ruth Bader Ginsburg:

Disclaimed to who?

I mean, how could the clerk be expected to know that the local counsel really isn’t taking any part?

I mean — so was the disclaimer to the clerk?

Gregory G. Garre:

I think a — a couple things on the clerk’s perspective.

First, we do think that it was well known in Alabama that, under this unique system, out-of-State attorneys were doing all the work in these cases and local counsel were simply facilitating their admission.

Second, one of the–

Elena Kagan:

Well, who says that, Mr. Garre?

I mean, is there anything in the record on that point, on the Alabama system generally?

Gregory G. Garre:

–A couple of the things, Your Honor.

First, we do have the amicus briefs, which discuss that anecdotally.

I would say that the State of Alabama in its brief in opposition to this Court a few years back in the Barbour case specifically touted the role of out-of-State attorneys under its system and as far as I could tell didn’t mention local counsel once.

So I think it was fair to say that it’s known that the out-of-State attorneys here were doing all the work.

But even if the clerk–

Sonia Sotomayor:

–you are begging the question, which is how is the clerk supposed to know this?

This is a functionary in the clerk’s office who sends out notices, receives back mail that’s not returned.

There has to be some local counsel that does work.

Gregory G. Garre:

–Well–

Sonia Sotomayor:

How is he supposed to know the difference between those that do, and those that don’t?

Gregory G. Garre:

–What — what — I think the clerk would be imputed with knowledge, general knowledge of the system.

But beyond that, what the clerk know — knew was this: He knew that two of the three notices that went out were returned, both to the out-of-State attorneys, which ought to be an extraordinary event in the life of any–

Antonin Scalia:

But, you know, even if local counsel is as you — as you describe it, and nothing in the record establishes it, even if he is a functionary, surely the function would include when he gets a notice, that he makes sure that the — the people who do the real work know about the notice.

Gregory G. Garre:

–Of course.

But the point is–

Antonin Scalia:

He didn’t perform that function.

Gregory G. Garre:

–In this case the local counsel didn’t perform as a mail drop and that was intentionally so.

His own affidavit makes that clear.

And I think what’s important is the State itself must not have viewed–

Anthony M. Kennedy:

But he didn’t have a mail drop?

I just didn’t hear what you said.

Gregory G. Garre:

–My point was that ordinarily a local counsel would serve as a mail drop; he would forward notice.

Gregory G. Garre:

In this case Mr. Butler made quite clear from the outset he was not even performing that role.

The role that he intentionally performed was to admit out-of-State counsel and to let them do the work.

But the State itself–

Antonin Scalia:

To whom did he make that clear?

You said he made it clear at the outset.

To whom?

And where is that in the record?

Gregory G. Garre:

–It’s in his affidavit, Your Honor, the petition appendix page 256.

Antonin Scalia:

His affidavit after — after the fact, right?

Gregory G. Garre:

That’s right, Your Honor.

Antonin Scalia:

Did — did he tell the clerk of the court that that was the case?

Gregory G. Garre:

He did not.

Antonin Scalia:

You know, you know, I’m counsel of record.

He’s the counsel of record, right?

I’m counsel of record, but I don’t even do so much as to forward notices to the guys that are doing the real work?

Did he tell the clerk that?

Gregory G. Garre:

He did not tell the clerk.

But the State itself, Your Honor–

Antonin Scalia:

Extraordinary.

Gregory G. Garre:

–must not have viewed him as a meaningful player, because when the default at issue in this case occurred the State sent a letter — faxed it — to Mr. Maples directly on death row in Alabama.

Ruth Bader Ginsburg:

He said that even before that.

In the rule, you said the Rule 32 — didn’t you say something about — the — the notice that went from the prosecutor to Maples did not go to the local counsel, right?

Gregory G. Garre:

The clerk sent out notices to all three attorneys of record, the two out-of-State counsel and Mr. Butler.

Mr. Butler did receive the notice.

He didn’t do anything, both because he hadn’t assumed any role beyond facilitating admission–

Ruth Bader Ginsburg:

Did the — did the prosecutor — I’m not talking about the clerk now.

The prosecutor had a filing in connection with the Rule 32 motion.

Did the prosecutor send that to everybody?

Maples and everybody?

Gregory G. Garre:

–He did not.

Gregory G. Garre:

The State — and this is at page 26 of the joint appendix — the State served it on his out-of-State counsel and not Mr. Butler, his local counsel.

And when the default occurred, the State contacted Mr. — Mr. Maples directly in prison, which would have been unethical if the State had known or believed that he was represented by counsel.

Ruth Bader Ginsburg:

But you seem not to rely on what the State as prosecutor did.

It seemed to me the State as prosecutor was recognizing that Maples had no counsel, therefore sent — said you better file your habeas; this is how much time you have; sent it just to him.

Gregory G. Garre:

I absolutely agree with you, Justice Ginsburg.

I think that that is further evidence that everybody knew that Mr. Maples didn’t have any local counsel in any meaningful sense.

Antonin Scalia:

Where does the Constitution say, by the way, that you have to give notice, that every judicial action has to be noticed to the parties to the case?

Gregory G. Garre:

Well–

Antonin Scalia:

The Federal rules don’t — don’t require notice, do they.

Gregory G. Garre:

–The Constitution doesn’t say that explicitly.

Antonin Scalia:

And the Federal rules don’t say it.

You don’t have to give notice in the Federal rules, do you?

Gregory G. Garre:

We think notice of a post-conviction order in a capital case would at least implicate a due process interest in receiving notice, that it’s reasonable–

Antonin Scalia:

Capital cases are different?

If you are going to go to jail for life you — you don’t get notice, but if — if it’s a capital case–

Gregory G. Garre:

–I think under the–

Antonin Scalia:

–No, I mean, it’s either a rule for all criminal cases or it’s not a rule.

Gregory G. Garre:

–Well–

Antonin Scalia:

And if — if it’s a rule for all criminal cases, the Federal rules are unconstitutional, you are saying.

Gregory G. Garre:

–The Mullane case specifically takes into account the interests of the individual receiving notice.

There could be no greater interest of an individual than receiving notice in a capital case where the individual’s life is at stake.

Ultimately we don’t think this Court has to find a constitutional violation.

It has to find that the event–

Antonin Scalia:

Once you are in court and you have a lawyer, it’s up to your lawyer to follow what goes on in the court.

That’s the assumption of the Federal rules.

And it seems to me a perfectly reasonable assumption.

And I’m not about to hold that — that they are unconstitutional simply because an extraordinary requirement of notice, which is not required by the Constitution, has gone awry.

Gregory G. Garre:

–Here Mr. Maples did not have an attorney that was serving in an agency role in any meaningful sense.

That is laid out in this Ms. DeMott amicus brief; it is laid out in our case.

What’s more is the State didn’t simply just, we think quite unreasonably, rely on a role that local counsel was not performing in Alabama.

John G. Roberts, Jr.:

What if — but — your case it seems to me turns critically on Butler’s role.

How — how much, in addition to what he did or didn’t do, would he have to do to put him in a position where he was in fact representing Maples in your view?

Gregory G. Garre:

I think the — the ordinary role of local counsel, which would have been to at a minimum forward notice in the proceeding, would be a meaningful relationship.

The relationship that — that Professor DeMott describes here is one of sub-agency.

And in fact if you look at the Alabama rules, they put the onus on the out-of-State counsel to associate the local counsel.

That’s at page 365 of the joint appendix.

The out-of-State counsel did that.

Mr. — Mr. Maples was not involved in that transaction.

Samuel A. Alito, Jr.:

Where do we look — where do we look to see that it’s standard practice for local counsel throughout the country to contact out-of-State counsel when something like this is received?

I remember a case from the Federal system in which local counsel appeared and did exactly what was done here, moved the admission of an out-of-State criminal defense attorney, who then tried the case for a year, got sick, and the judge said to the local counsel: Come on in; you are going to take over this trial and try it for the next 6 months.

And the local counsel said: Whoa, I only signed up to move the admission of this fellow.

The judge said: That’s too bad; you are counsel of record and you have to take over the case.

I don’t understand that what is alleged to have occurred here is that far out of the ordinary.

Gregory G. Garre:

I think Mr. Butler — just simply saying, I’m going to allow — I’m going to facilitate your out-of-State attorney to represent you, but that’s my role, he has, quote, unquote, “no role” outside of that.

Antonin Scalia:

He can’t define his role as a lawyer.

Once he appears before a court and says, I am counsel of record, he has certain responsibilities.

It’s not up to him to say what his responsibilities are.

Gregory G. Garre:

Well, clearly that’s right.

Antonin Scalia:

And if they don’t extend even to forwarding notice, even to making sure that the people who were doing the leg work in the case know that — that the clock is running, my goodness, I can’t imagine what his responsibility is.

It’s not up to him to define it.

Gregory G. Garre:

That’s exactly our point, Justice Scalia, which is that he forswore any responsibility.

The lawyer in the Holland case just had those responsibilities, too.

He abandoned his client.

What Mr. Butler here did here was inexcusable.

But there is another factor at play here, and that is the confusion that the court itself affirmatively created when it sent an order that by its terms directed that all counsel of record receive it.

And that’s what the order said; it’s on page 225 of the joint appendix.

And–

Stephen G. Breyer:

Before you get to the court, could I ask you about what the State attorney, the prosecuting attorney, knew?

Did the prosecuting attorney know that these two individuals from New York were representing this person?

Gregory G. Garre:

–Certainly they knew that they were counsel of record in the proceeding.

Gregory G. Garre:

I will let my — my friend answer that question.

What we know, though, is that when the default occurred it took the extraordinary step of faxing a letter directly to Mr. Maples in prison, which would have been unethical if it believed he was represented by counsel.

Stephen G. Breyer:

All right.

So you think you have — in your view, the counsel of record knew that these two people in New York were part of the representation.

Did the counsel — I mean, not the counsel of record, the counsel for the State.

Did the counsel know that they hadn’t gotten the notice?

Gregory G. Garre:

Well, I don’t want to speak for my friend.

I don’t — there is certainly nothing in the record to — to establish that they knew that these out-of-State attorneys didn’t get notice.

Stephen G. Breyer:

Is there any reason to think that the State attorney or whoever was prosecuting thought that the local counsel was likely not to do much?

Gregory G. Garre:

Yes.

Stephen G. Breyer:

Yes, okay.

Gregory G. Garre:

The very actions it took, Justice Breyer.

Stephen G. Breyer:

All right.

Now, so it’s possible — we will find out later — that the prosecuting attorney who works for the State knew all those things: One, he’s represented by counsel in New York; two, they didn’t get the notice; three, the local attorney isn’t going to do anything; and conclusion: They likely knew he didn’t get the notice, but they are asserting that this is an adequate State ground to bar him coming in to habeas; is that the correct posture of the case?

Gregory G. Garre:

That’s true, Justice Breyer.

Stephen G. Breyer:

So all we have to decide is whether under these circumstances the State attorney’s knowledge of all those facts mean that the State cannot assert this is an adequate State ground?

Gregory G. Garre:

Right.

And I think the State’s actions–

Antonin Scalia:

Do we know that he knew all of those facts?

Gregory G. Garre:

–No, Justice Scalia.

Antonin Scalia:

Of course we don’t know that.

Gregory G. Garre:

But we know — we know what action it took, and that action was an action that assumed that he didn’t have meaningful counsel, or else it would have been unethical.

Elena Kagan:

Counsel, can I–

Anthony M. Kennedy:

Let me ask you — let me ask you this, if — if I may.

I don’t know if — I don’t think the briefs covered it.

It may be in there.

Do you know in Alabama and/or nationwide, in how many capital cases there is no appeal?

Gregory G. Garre:

I don’t know that, Justice Kennedy.

I think the Alabama system here created a system in which it would allow for appeals, not only in direct appeals, but post-conviction proceedings.

There are several extraordinary features of the Alabama system and we think that ultimately they helped to facilitate the extraordinary and shocking events in this case.

John G. Roberts, Jr.:

What if — the New York lawyers did not abandon Mr. Maples prior to the time that they left their law firm in New York, right?

Gregory G. Garre:

That’s right.

John G. Roberts, Jr.:

So their conduct prior to that time would be attributed to him, right?

Gregory G. Garre:

I think that’s right.

John G. Roberts, Jr.:

Right.

Part of their conduct was setting up their arrangement with Mr. Butler where he would show up as counsel of record but not really do anything.

So why aren’t the consequences of that arrangement attributed to Maples as well?

Gregory G. Garre:

I don’t think they would be attributed.

I think what you are looking for is whether the default itself is attributable to Maples.

The New York — what the out-of-State attorneys did is they left the representation without fulfilling their duty to notify the court or Mr. Maples.

Mr. Maples was sitting in a prison cell in Alabama under the reasonable belief that he was represented by counsel who would appeal if an adverse decision was issued.

Antonin Scalia:

Mr. Garre, can I go back to Justice Kennedy’s question?

This was not an appeal.

The question was how many capital cases is there no appeal.

He had been convicted and had appealed, right?

Gregory G. Garre:

The direct proceedings had concluded.

Antonin Scalia:

The direct proceedings were over.

He had appealed up to the State supreme court.

Did he seek cert here, too?

Gregory G. Garre:

He did.

Antonin Scalia:

He did.

And this was a post-conviction–

Gregory G. Garre:

It was, but when the State sets up that system and allows for appeals it can’t arbitrarily deprive it of an appeal based on the sort of circumstances here.

Antonin Scalia:

–That may be, but I don’t think it’s extraordinary that there be no appeal post conviction.

Gregory G. Garre:

I am not aware of any State that does not allow appeal in post-conviction proceedings.

Antonin Scalia:

It can be allowed, but it would not seem to me extraordinary that it not be sought.

Anthony M. Kennedy:

Well, in — in this case there was a direct appeal, and then there was this proceeding that we’re talking about here.

The trial judge waited for 18 months, so you would think there is some merit to the underlying claim.

Any statistics on whether or not — on how often an appeal is abandoned or not pursued in this kind of case?

No statistics?

Gregory G. Garre:

No.

I mean, the statistics that I’m aware of are that habeas claims are in a material sense often successful in capital cases.

We’ve cited those in our reply brief.

Here we think the underlying claims are quite serious.

The question in the case is really not who shot the victim.

The question was whether Mr. Maples was going to be convicted for capital murder or murder that would result in life imprisonment.

Anthony M. Kennedy:

I’m — I’m aware of the allegations.

Gregory G. Garre:

And I think, going back to the court and the clerk’s actions here, one of the things that exacerbated the chain of events here was that you had an order which directed that all parties would be served.

Mr. Butler did say that he saw that that order directed that the out-of-State counsel would be served, which created an added risk of the likelihood–

Sonia Sotomayor:

Mr. Garre, I have two questions for you.

Is that — is this State the only one that doesn’t appoint counsel in a post-conviction capital case?

Gregory G. Garre:

–Well, I believe that Alabama may appoint them.

They don’t provide for appointment in all cases.

I believe Georgia is another State.

But in that respect, I think–

Sonia Sotomayor:

But the vast majority do?

Gregory G. Garre:

–Absolutely.

Sonia Sotomayor:

In capital cases.

Gregory G. Garre:

The vast majority do.

Sonia Sotomayor:

All right.

Number two, I thought there were two questions in this, in this part of your case.

The first is, don’t we have to decide that abandonment, which you have termed, is cause–

Gregory G. Garre:

Yes.

Sonia Sotomayor:

–in a — to excuse a procedural bar in a State court.

Gregory G. Garre:

Right.

And that is–

Sonia Sotomayor:

So we have to decide first whether we extend Holland to this setting.

Gregory G. Garre:

–Well, I think they’re independent grounds.

If the Court concludes that the State’s own actions–

Sonia Sotomayor:

That’s the due process.

Sonia Sotomayor:

I’m talking about — yes, both we would have to decide.

But assuming — we have to decide the first question.

Gregory G. Garre:

–Well–

Sonia Sotomayor:

Will we extend Holland to this type of situation.

Gregory G. Garre:

–I don’t — I don’t — I just want to be clear on this.

There are independent grounds.

If the Court concludes that the State’s action–

Sonia Sotomayor:

Yes, I understand.

Gregory G. Garre:

–But with respect to the attorneys, that’s right.

Sonia Sotomayor:

Yes.

Antonin Scalia:

What is the line, Mr. Garre, between abandonment and just plain old negligence?

Gregory G. Garre:

It would be the line established by agency law going back to Justice Story’s time.

Antonin Scalia:

So if his local counsel simply goofed in not, not advising the people that were doing the leg work in the case, why is that abandonment?

Gregory G. Garre:

I think it’s actually more of a situation where he disclaimed any meaningful role at the outset.

I think, you know, the real abandonment going on here was the attorneys in New York who left without notifying the court or their client.

But that–

Samuel A. Alito, Jr.:

Putting aside the question of local counsel, could we find that there was an abandonment if the law firm of Sullivan and Cromwell continued to represent Mr. Maples after the two young attorneys left the firm?

Gregory G. Garre:

–The Court could.

Samuel A. Alito, Jr.:

And does the record show that they did not represent Mr. Maples, that this was done purely by the two attorneys?

Is there a finding by a court on that?

Gregory G. Garre:

There is no not a finding, but we think that’s the better reading of the record, and I am happy to explain why.

But most importantly, we think it’s irrelevant whether he was represented by the law firm in this fictional sense.

He was represented by individual lawyers in that proceeding.

They were the ones who Mr. Maples agreed to have represent him in that proceeding.

The Alabama courts make specific findings that Mr. Maples’ lawyers were Ms. Ingen-Housz and Mr. Munanka.

It said that after the default.

At that time–

Ruth Bader Ginsburg:

But in the practice of a law firm, these were very junior people.

Wouldn’t the law firm have to have some involvement in giving them permission to provide this representation?

I mean, usually there is something like a pro bono committee and a higher level.

Ruth Bader Ginsburg:

Can such junior associates just go ahead and say, we want to spend a lot of our time defending a man on death row?

Wouldn’t they have to get some kind of permission?

Gregory G. Garre:

–I think one would ordinarily expect that.

And we are not condoning the actions here.

I would say that at the outset of this litigation there were individuals from the Legal Aid Society who were well familiar with capital cases involved.

They apparently dropped out of the case.

But we know–

Elena Kagan:

–What do we know about Mr. De Leeuw’s role, Mr. Garre.

Gregory G. Garre:

–What we know is what Mr. De Leeuw has said, which is that he was involved in the case at some point.

It’s not clear what his involvement was.

At the oral argument in the Eleventh Circuit, he said on page 302 of the joint appendix that they were awaiting further action from the court.

So we don’t know what his involvement was.

Sonia Sotomayor:

Mr. Garre, we don’t know, we don’t know.

Isn’t that just proof that if we were to find that Holland applied, the Holland exception applied, that we would have to remand this case?

Gregory G. Garre:

I think that would be appropriate, Your Honor.

Of course, we think the Court should find that the Holland — the Holland exception, or more particularly–

Sonia Sotomayor:

In that regard, there is one part of Holland that you don’t really address, which is that Holland contrasted a statute of limitations issue with respect to access to a Federal court with a procedural bar and said that the State’s procedural bar had interest of federalism, that we had to be cautious of ignoring a State procedural bar because of federalism.

If we were to extend Holland in the way you want, how do we justify ignoring federalism in that situation?

Gregory G. Garre:

–That’s right.

There are those distinctions.

Our point is that Holland recognizes that attorney conduct that amounts to abandonment is external to the client under agency and other principles.

Coleman itself recognizes that external conduct is not attributable to the client and can’t be a basis for cause.

The federalism interests are simply not implicated in the case where you find that the attorney’s actions are external.

And we think if you look at the principles you looked at in Holland, agency law going back to Justice Story’s time, the principles of professional standards of care, you would find that an abandonment, of course that must be external to the client.

Justice Alito said in his concurring opinion that where someone is not acting as an agent in any meaningful sense, it would be grossly inequitable and unfair to attribute the agent’s conduct to the client.

That’s the principle we’re asking.

Elena Kagan:

Mr. Garre, could we go back to the state of record.

You’ve said a few times, and your brief does, that the record is skimpy on various important matters.

Would you go further and say that the record is irretrievably corrupted, tainted by conflicts of interest?

Gregory G. Garre:

I think there are conflicts of interest here.

Gregory G. Garre:

They are laid out in the legal ethics brief.

The Sullivan and Cromwell attorneys were representing Mr. Maples up through the argument, the decision in the Eleventh Circuit.

But I think for purposes of what this Court would do, I think a remand would be appropriate, because if you conclude, as we think you should, that abandonment of counsel would be an external factor, then it would be appropriate to remand for further proceeding.

We don’t know what these other attorneys were doing.

The record doesn’t show that.

Ruth Bader Ginsburg:

We do know, though, that they were not counsel of record.

Gregory G. Garre:

We absolutely know that they were not.

Ruth Bader Ginsburg:

We know that the two who were listed of as counsel of record were not representing him and they hadn’t told the court.

Gregory G. Garre:

They were not counsel of record.

Mr. Maples never agreed to have anyone else represent him in a way that could bind him.

The Alabama court specifically found not only that they weren’t counsel of record, but they were not authorized to practice in Alabama.

This is on page 223 of the petition.

Antonin Scalia:

But it seems to me it’s up to you to produce the facts that would justify our reversing the case that you are asking us to do.

Gregory G. Garre:

We asked–

Antonin Scalia:

You can say, we don’t have these facts; well, send — send it back so I can — no, you should have gotten the facts in the first place.

If the record doesn’t show the things that you need to show to get this case reversed, the case should not be reversed, it seems to me.

Gregory G. Garre:

–But the petition did include a request for an evidentiary hearing.

The think the problem is that both the district court and the court of appeals short-circuited the inquiry into counsel’s actions because it believed that Coleman v. Thompson applied in the abandonment situation, and where a court made that kind of legal error, it would be appropriate for the Court to send it back and say, no, Coleman v. Thompson does not apply in extraordinary cases of abandonment, or an attorney’s actions cannot be attributable to a client under agency law.

Antonin Scalia:

When did you first make the abandonment claim?

Gregory G. Garre:

Well, I think we’ve argued–

Antonin Scalia:

Wasn’t it — wasn’t it first made in the — in the request for rehearing?

Gregory G. Garre:

–I think explicitly.

Now, we think — two points on this–

Antonin Scalia:

That’s rather late.

Gregory G. Garre:

–We think that all along they argued that the attorneys’ actions established cause.

That’s why both the district court and the court of appeals addressed that and rejected it erroneously under Coleman.

That–

Antonin Scalia:

That isn’t abandonment.

The attorneys’ actions established cause; that does not mean abandonment to me.

Gregory G. Garre:

–We think this falls squarely within the rule of Escondido, where — where a party makes the claim below — which they made the claim here that the attorneys’ actions established cause — can make new arguments, different arguments.

Gregory G. Garre:

And I think, particularly given that Sullivan & Cromwell had been involved earlier in the case, and the possibility of conflicts of interest would make it appropriate for this Court to consider our abandonment issue, which was raised in the petition for rehearing, explicitly raised in the petition for certiorari — explicitly — we think it is properly before this Court.

If there are no further questions at this time, I’d like to reserve the remainder of our time.

John G. Roberts, Jr.:

Thank you, Mr. Garre.

Mr. Neiman.

John C. Neiman Jr.:

Thank you, Mr. Chief Justice, and may it please the Court:

In trying to sidestep Coleman, Maples is advocating at least three principles that are incompatible with the way our justice system works.

First, Maples is asking this Court to hold that due process required not just actual notice to his attorney of record, John Butler, but in fact something more than that.

John G. Roberts, Jr.:

Let’s say the three notices are sent out, all three of them come back, okay?

Let’s even go further and say the prosecutor knows that nobody representing Mr. Maples received notice.

What happens then?

John C. Neiman Jr.:

In that case, Your Honor, there would be a much more substantial argument.

John G. Roberts, Jr.:

Yeah, I know it would be more substantial.

That’s why — my question is what happens?

Are you prepared to acknowledge that in that case, Mr. Maples had been abandoned by all of his lawyers, it was known to the prosecution, and therefore, the failure to file the notice should not constitute an adequate and independent State ground barring collateral relief?

John C. Neiman Jr.:

I don’t think that the return of all three notices would justify necessarily a finding of abandonment in toto by all the lawyers.

It could signify a number of things.

I do think that it would raise questions about whether the clerk had a due process obligation to do more under Jones v. Black.

Antonin Scalia:

What does the return mean when you get — get a notice returned?

It just said no longer at Sullivan & Cromwell, is what the two of them said, right?

John C. Neiman Jr.:

Yes, Your Honor.

Antonin Scalia:

But does that necessarily mean that they’ve abandoned the case?

It just means you got the wrong address, doesn’t it?

John C. Neiman Jr.:

That’s correct, Your Honor.

Antonin Scalia:

Isn’t that the only thing it means for sure, these lawyers are no longer here at Sullivan & Cromwell?

John C. Neiman Jr.:

Yes, Your Honor.

Antonin Scalia:

I don’t know how that would be an indication of abandonment.

Can’t you switch a law firm and keep the client?

John C. Neiman Jr.:

Absolutely, Your Honor, although the presumption generally is that the client stays with the firm.

But that’s correct.

The client certainly can move firms when the — a lawyer moves firms.

Ruth Bader Ginsburg:

Mr. Neiman, I think we’re blurring two issues.

We are not talking about abandonment in this respect.

We are talking about notice going to no one, and the — and the clock ticking from a certain date that no one knows about.

They were preparing for a hearing before this judge.

So they weren’t anticipating that he was going to rule without anything further.

John C. Neiman Jr.:

That’s correct, Your Honor.

They certainly were preparing for an evidentiary hearing, and in fact, contrary to my friend’s statements about what we know about Mr. De Leeuw’s involvement in this case, on page 228 of the J.A., Maples expressly alleged that De Leeuw and others at Sullivan & Cromwell were preparing for the evidentiary hearing.

Ruth Bader Ginsburg:

But as far as — as far the record shows, De Leeuw was not on the record at all.

There were three counsel of record.

Two of them — well, let’s go back to the — this first issue.

The State by its own conduct showed that it didn’t regard Butler as any kind of representative, because it didn’t even send its Rule 32 response to Butler, isn’t that so?

John C. Neiman Jr.:

No, Your Honor, I respectfully disagree with that assessment of how we can read the service of the Rule 32 answer.

Under Alabama law, a pleading or an order may be served on only one counsel of record when a party has multiple counsel of record.

So, for example, that answer was served upon Mr. Munanka at Sullivan & Cromwell, but it was not served, expressly at least, on Ms. Ingen-Housz.

Ruth Bader Ginsburg:

What about — what about the notice that he had lost in the Alabama court and he better, if he wants to go to the Federal court, do something about it?

That notice went only to Maples, right?

John C. Neiman Jr.:

That’s correct, Your Honor.

The State’s attorney in that — in that instance decided to send a letter only to Mr. Maples.

Ruth Bader Ginsburg:

And Mr. Garre made the point that if Maples were represented, that that would be improper, to send a notice to Maples alone.

So the State’s attorney must have thought that Maples had been abandoned by his lawyers because he didn’t notify any of them.

John C. Neiman Jr.:

Your Honor, the record does not reveal why Mr. Hayden decided to send the letter to Mr. Maples alone–

Antonin Scalia:

Of course, he didn’t have to send the letter.

That letter had no legal effect, did it?

John C. Neiman Jr.:

–That’s correct, Your Honor.

Antonin Scalia:

I mean, it was just: By the way, your time has expired.

I mean, this is not — what could the lawyer do about it?

It wasn’t a required notice that he had to give to the lawyer or to anybody else.

John C. Neiman Jr.:

That’s correct, Your Honor.

Antonin Scalia:

So he just made this extraneous volunteered statement to Maples instead of to his lawyer.

I don’t know what that proves.

John C. Neiman Jr.:

At that point in time, the State case was over.

So it was hardly clear if Mr. Hayden was going to do something that he didn’t have to do under the rules.

John G. Roberts, Jr.:

Why did he do it?

Why did he do it, then?

Just gloating that — that the fellow had lost?

What was the point of it?

He must have thought there was a problem, right?

John C. Neiman Jr.:

Your Honor, he certainly was aware that Mr. Maples’ lawyers had failed to file a notice of appeal.

But — and his letter reveals that he is very aware–

Sonia Sotomayor:

Is that surprising?

I think Justice Kennedy asked your adversary: How often do appeals lie from the denial of State post-conviction remedies?

John C. Neiman Jr.:

–Your Honor, I agree with my friend that we don’t have statistics on that front.

I think it’s fair to assume that for the most part, when a Rule 32 petitioner loses at the trial stage they are going to appeal.

Sonia Sotomayor:

In a capital case.

Anthony M. Kennedy:

Particularly in a capital case.

John C. Neiman Jr.:

That’s correct, Your Honor, although there are some instances in which a capital petitioner or someone on death row decides that they no longer want to invoke the process of the courts and they are ready for their sentence to be carried out.

Anthony M. Kennedy:

I just have two questions going back to the very beginning, when we were talking about the missed address, or the unreceived mail.

When the notices come back

“no longer at Sullivan & Cromwell. “

that’s just as if it said functionally, don’t you think, “wrong address”?

John C. Neiman Jr.:

Not quite, Your Honor.

I think that the notice saying that the person’s no longer at Sullivan & Cromwell indicates that the person is no longer at the firm.

I guess the notice could come back–

Anthony M. Kennedy:

I mean, it’s pretty clear that they didn’t get the mail, get the letter, because it’s sent back.

John C. Neiman Jr.:

–That’s correct, Your Honor.

Anthony M. Kennedy:

One other thing while I’m talking with you, and it’s a tangential point, perhaps.

Could the State of Alabama under your laws waive what you allege to be the procedural default?

If you thought there was substantial merit to the underlying claims, even though you take the position that they ultimately should be rejected, could you have simply waived the procedural default and allowed the appeal to proceed?

John C. Neiman Jr.:

I don’t think the law makes that crystal clear, Your Honor.

But I certainly know of no law that suggests that the Attorney General of Alabama necessarily has to assert every single potential defense within his or her arsenal.

Anthony M. Kennedy:

Has Alabama ever waived lack of timely appeal in a capital case?

John C. Neiman Jr.:

I’m not aware, Your Honor.

Sonia Sotomayor:

Counsel, could we go back to the Chief Justice’s initial question?

Let’s assume the two letters went to Sullivan & Cromwell and came back, “left firm”, as they did, and that the letter to Butler came back “deceased”.

Would there be cause in that situation to excuse the State’s procedural ground?

John C. Neiman Jr.:

Perhaps, Your Honor.

It — it would depend on why the letters came back from Sullivan & Cromwell.

Sonia Sotomayor:

Well, we know that both lawyers in this case didn’t move to another firm.

Both of them took jobs that precluded them from representing this defendant.

So I don’t know how I define abandonment other than I take a job where I can’t work for you anymore.

John C. Neiman Jr.:

The cause argument in that case, Your Honor, would be substantially stronger as I said before in part because, death, of course, is an external factor.

So–

John G. Roberts, Jr.:

So you accept — I don’t mean to interfere the question, but so you accept the idea that there is a distinction between malfeasance and abandonment.

John C. Neiman Jr.:

–Your Honor, I think we would be prepared to recognize that in certain cases an abandonment of a client by an attorney would terminate the agency relationship with — between the attorney and client.

John G. Roberts, Jr.:

Okay.

So then the only thing we are talking about is whether on these particular facts there has been abandonment or not.

Right?

John C. Neiman Jr.:

That’s correct.

John G. Roberts, Jr.:

From your perspective.

John C. Neiman Jr.:

Yes, Your Honor.

But one thing I want to stress is that my friend has suggested that an evidentiary hearing or further evidentiary proceedings are necessary on this particular question because we don’t know what role the other attorneys at Sullivan & Cromwell played in the matter.

Ruth Bader Ginsburg:

But we do know they were counsel of record.

We do know that the only two counsel of record were no longer representing him and he had no reason to know that they weren’t, but they were not — they couldn’t represent him.

The only two out-of-town counsel were the two who disabled themselves from representing him by taking other jobs.

John C. Neiman Jr.:

Your Honor–

Ruth Bader Ginsburg:

So there was no one from Sullivan & Cromwell other than those two on the record.

So on the record, they had abandoned him and there was no substitute.

John C. Neiman Jr.:

–I disagree with that assessment, Your Honor.

Antonin Scalia:

Well, the argument is that on the record or not is determinative for the out-of-town counsel, but it is not determinative for the in-town counsel.

The fact that he is counsel of record doesn’t count, but the fact that those two are, does count.

Antonin Scalia:

And only when you combine those two does the man have no counsel.

Right?

John C. Neiman Jr.:

Yes, Your Honor.

There is that inconsistency in Maples’ argument.

On the one hand Maples says that Butler — or that the other lawyers at Sullivan & Cromwell weren’t his attorneys because they were not counsel of record.

But Butler was counsel of record but he wasn’t for the attorneys.

Elena Kagan:

The notice inquiry is supposed to be a pragmatic one.

As far back as Mullane we’ve said that the question that we are supposed to ask ourselves is: Is this what somebody would do if they actually wanted to accomplish notice, if they actually wanted the person to get that letter.

So I’m just going to ask you, General, if you were a lawyer in an important litigation and you send off an important letter to two lawyers, your principal adversaries, as well as to a local counsel who you think may not be involved in the substance of the litigation, you don’t know for a fact, but you think there is some substantial likelihood that he’s not particularly involved, as local counsel often aren’t.

So you send off this letter and you get it back from the principal attorneys, and you ask yourself: Huh, should I do anything now?

What would you say?

John C. Neiman Jr.:

Your Honor, I suspect that in those circumstances I might well personally do something else.

But, of course, my prerogatives as Solicitor General of Alabama are quite different from the prerogatives of a clerk in Northern County, Alabama.

Antonin Scalia:

Whereas the clerk has to believe that it’s an important letter.

Right?

It’s not important enough to be required by the Federal rules.

How important is it?

Elena Kagan:

Justice Scalia is right.

I am assuming that a letter disposing of a ruling in a capital case issued after 18 months when nobody knew that that letter was coming, that that’s an important letter for a death row person to get.

So Justice Scalia is right to that effect.

So you get this, and you say, well, you would have.

But that’s the question we have to ask about the clerk as well.

The clerk — The question for the clerk is, if he had really wanted the person to get notice, what would he have done?

John C. Neiman Jr.:

No, Your Honor, I disagree.

The — As far back as Mullane, this Court has said that at the end of the day actual notice to a party, particularly within the jurisdiction, is the finish line for due process purposes.

Mullane expressly–

Samuel A. Alito, Jr.:

You concede from these questions that the arguments that you are making in this capital case, which is sui generis, are pushing the Court to consider rules that would have far-reaching effect, such as a rule that places upon a clerk of the court a constitutional obligation to serve counsel with important documents in the case similar to the constitutional obligation to serve initial process in the case.

And the question that I would like to ask is whether this — the — whether you as the Solicitor General or the Attorney General of Alabama have an obligation to push this matter in this way.

This is a case where, as I said, it’s a capital case, as we all recognize.

Mr. Maples has lost his right to appeal through no fault of his own, through a series of very unusual and unfortunate circumstances.

Samuel A. Alito, Jr.:

Now, when his attorneys moved to file an out-of-time appeal, why wouldn’t you just consent to that?

If he did not receive an effective assistance of counsel at trial, why not give a decision on the merits of that?

Why push this technical argument?

John C. Neiman Jr.:

–There are several responses, Your Honor.

First, at least at the rule 32 stage, the notice of appeal deadline was a jurisdictional one.

And you’re right, the state did oppose the motion for an out-of-time appeal, but there wasn’t much the state could have done even if it had consented.

Samuel A. Alito, Jr.:

There is no possibility under Alabama rules for an out-of-time appeal in this circumstance?

No extension?

John C. Neiman Jr.:

The holding of the Alabama courts here, as recognized by the Eleventh Circuit, was that this would not be an appropriate circumstance for an out-of-time appeal.

Now as to the question about–

Samuel A. Alito, Jr.:

Is that a discretionary matter or is that a flat rule, once you passed a certain time deadline, you are out of luck.

There is no opportunity where there’s good cause for an extension?

John C. Neiman Jr.:

–There is opportunity where there is good cause for an extension.

But what the court held here, or what the Alabama court held here was that this circumstance in which the person had counsel of record, and counsel of record hadn’t notified the Court of their changes of address, and, more importantly, Mr. Butler, if he was in fact serving as Mr. Maples’ agent in this case.

Anthony M. Kennedy:

Well, this goes to my earlier question, and continuing Justice Alito’s line of questioning, if the State of Alabama had told the State court, you know, under all of the circumstances we think there should be an out-of-time appeal granted.

Are you indicating that the State court said: Well that’s a good idea, but we can’t do it because it’s not appropriate in these circumstances?

John C. Neiman Jr.:

That seems to be the holding of the Court of Criminal Appeals in this case, Your Honor.

Ruth Bader Ginsburg:

Did you oppose it?

Did the State oppose the out-of-time appeal?

John C. Neiman Jr.:

Yes, Your Honor, the State did oppose the out-of-time appeal, and the State pressed the procedural bar in Federal court in this case.

But the State had every prerogative to do so, in part because this Court recognized in Coleman, a case where Petitioner undoubtedly could have said that he lost his right to he appeal through no fault of his own, the State had the power to do that.

There are good reasons for the State–

Anthony M. Kennedy:

Could the state in the Federal litigation have waived the procedural default?

John C. Neiman Jr.:

–Your Honor, I think the law’s not exactly clear on that, but I know of no law that would say the Alabama Attorney General — the Alabama Attorney General has to press every single non-jurisdictional defense at his or her disposal.

But he did not do so here and had good reason not to.

That’s in part because Coleman says that this is how procedural defaults work.

There are good reasons for procedural defaults.

They are grounded in the same equitable principles that–

John G. Roberts, Jr.:

You agreed with me earlier that abandonment is an exception to the adequate and independent State grounds.

So under your view of the case, Coleman was not necessarily controlling.

John C. Neiman Jr.:

–Your Honor, if I suggested that abandonment itself is an exception to the AISG doctrine, let me correct my earlier answer.

My suggestion is that abandonment can sometimes allow a court to determine that a particular lawyer has become external to a client, that the agency relationship has been terminated.

Of course, merely becoming external to the client does not mean that the abandonment itself will constitute cause.

The abandonment also, or the lawyer’s ending of the relationship would also have to impede the ability of the remaining members of the defense team or the defendant himself to comply with State rules.

And here, even if there is some argument that Ingen-Housz and Munanka abandoned their client, which I don’t think there is on this record in light of the way they left the case with Butler, Mr. De Leeuw and others at Sullivan & Cromwell, even if there were some argument on that front, Butler — It’s not clear that the action of Ingen-Housz and Munanka actually impeded the ability of the remaining members of the team.

Ruth Bader Ginsburg:

When — when lawyers stop representing a client, as the two did, isn’t there some obligation of them to tell the client and the court, we’re no longer representing you, and arrange for substitutions?

There were never any substitutions on the record of the other counsel.

The record says these two people are representing them both, and those two weren’t.

They never told the court, and they never told Maples.

Isn’t there some obligation on — on their part to the court when they stop representing a client to advise the court?

John C. Neiman Jr.:

Yes, Your Honor, I think there is.

But I don’t think that means that what happened here constitutes cause.

The record is clear, as Mr. Maples himself has alleged, that Ingen-Housz and Munanka arranged for this case to be handled by Mr. De Leeuw, and the record makes clear that Mr. De Leeuw was involved in this case in representing Maples even before the default occurred, and even before Ingen-Housz and Munanka were — well, even if — even before Ingen-Housz and Munanka left.

Stephen G. Breyer:

Is it — is it — I’m still unclear on one factual thing.

Did the State’s attorneys know that the letters had come back?

John C. Neiman Jr.:

Your Honor–

Stephen G. Breyer:

Or should they have known.

John C. Neiman Jr.:

–Your Honor, the record is not clear on that point.

I can represent to the Court that the State’s attorney did not know that the letters had come back.

Stephen G. Breyer:

Do they check — do they check the docket every so often to see what’s happened?

John C. Neiman Jr.:

Most — most attorneys have an obligation at some point to check the docket, and that’s — that’s one problem with the position that Mr. Maples has taken regarding Mr. Butler here and the ability of these parties to obtain information from the court.

But in this case it’s my understanding — this is not on the record — but it’s on the record obviously before this Court now — but it’s my — it’s my understanding that the State had no idea that Mr. Maples’ attorneys had not — Mr. Maples’ two attorneys in New York had left their firm or had–

Stephen G. Breyer:

Why did–

Ruth Bader Ginsburg:

Then why did they — why did they send to Maples alone the notice to — the Federal habeas?

They didn’t send it to those counsel.

Where did they — what made them send it — send that notice directly to Maples and not to either of the Sullivan & Cromwell lawyers?

John C. Neiman Jr.:

–Again, this is — this information that’s not in the record, Your Honor.

But it’s my understanding that counsel looked at — looked at — figured out what had happened, figured out the appeal had been missed, had calculated how much time Mr. Maples had to file his 2254 petition, and based on his 20 years of experience, said that in light of the fact that the State court proceedings were over, the most prudent thing for him to do would be to send the letter to Maples himself.

Sonia Sotomayor:

So he had figured out that something had terminated the relationship between Mr. Maples and his lawyers?

John C. Neiman Jr.:

No, Your Honor, I don’t think that’s — I don’t think that’s an accurate characterization of–

Sonia Sotomayor:

Well–

John C. Neiman Jr.:

–of what exactly happened in this case, but in the very least his lawyers had missed — had missed the deadline.

Antonin Scalia:

Even if you assume that he had figured it out, that — you would have to impute his knowledge to the clerk of court to — to find the — the fault on the part of the State that’s alleged here.

John C. Neiman Jr.:

Well, more so than that, Your Honor.

Antonin Scalia:

Did he tell the clerk of court that he was only going to send it to Maples?

John C. Neiman Jr.:

As far as I know, no, Your Honor.

But of course, the cert — the notice came back to the clerk long before the State’s attorneys sent the letter in this case.

But that’s an important point I think both with respect to the clerk issue and also the abandonment issue.

The relevant question here is not what the Assistant Attorney General of Alabama thought happened in this case.

The relevant question on the clerk issue is what the clerk knew, and that of course is governed by Rule 7 of the rules governing admission to the Alabama bar.

The relevant question on abandonment is had Maples in fact been abandoned?

Had — had these attorneys left him completely without counsel?

And the record definitively establishes that that had not happened, both because Mr. Butler remained counsel here, and in a much more meaningful way, I think, than my friend suggests–

Sonia Sotomayor:

–Counsel, could you tell me — I’m assuming you have practiced in your State for a while.

John C. Neiman Jr.:

–Yes, Your Honor.

Sonia Sotomayor:

How frequent is it in the Alabama capital system that local counsel takes the laboring oar, or even an active participation in the defense or actions of a capital defendant?

Your — the amici here says generally they did what Mr. Butler did, they just facilitated the — the admission of the volunteer attorneys.

Was that your experience?

John C. Neiman Jr.:

Your Honor, of course that information’s not in the record.

We respectfully disagree as a factual matter with the factual assertions made by the amici on that front.

Stephen G. Breyer:

–All right.

We have to send it back.

I guess we’d have to say what the rule is.

So what — what is the rule — what about 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 — cause to believe that all that was true.

Then the State cannot assert this as an adequate ground.

That’s all.

John C. Neiman Jr.:

Your Honor, a remand would not be appropriate in this case on those — on grounds for a number of reasons.

Stephen G. Breyer:

Because?

John C. Neiman Jr.:

One is that Rule 7 of the rules governing admission to the Alabama bar made emphatically clear that the role of local counsel was not simply–

Stephen G. Breyer:

Irrespective of what the rules were, you would have to show that — you would have to show that, in fact, in this State it is a practice such that the local counsel doesn’t do much of anything except facilitate, because this is a state of mind as to whether the State — and the State knows that.

Stephen G. Breyer:

If he shows both of those things, and shows that the letter came back, and shows this was abandonment or close thereto, then the State ought to know that this individual had no idea about filing a piece of paper, and thinks somebody else is doing it.

And that’s enough to say this is not adequate State ground that would block Federal habeas.

Now your argument against that is what?

John C. Neiman Jr.:

–At least two-fold, Your Honor.

One, as a simple matter those factual assertions were not made below.

So in order for the Court to remand on that particular issue, it wouldn’t be a remand for an evidentiary hearing, on whether those allegations–

Stephen G. Breyer:

I think in the briefs — there is certainly a lot in the briefs that seems to say that.

John C. Neiman Jr.:

–There is certainly a lot in the briefs that says that.

But one problem Mr. Maples faces here is that he had the burden as the petitioner in this habeas allegations that he believed would establish cause.

Antonin Scalia:

Mr. Neiman, am I correct that under the Alabama rules when an attorney is represented by more than one attorney, the notice does not have to go to all of them?

John C. Neiman Jr.:

That is correct, Your Honor.

Antonin Scalia:

It can only go to one, right?

John C. Neiman Jr.:

That’s right.

Antonin Scalia:

So as far as local counsel knew, he was the only one to receive notice of this thing, right?

John C. Neiman Jr.:

That’s correct, Your Honor.

John G. Roberts, Jr.:

Is it correct or does the notice — most of the notices I see list the people who have been served.

Were the New York people listed on the notice that went to Butler?

John C. Neiman Jr.:

Yes, Your Honor.

The notice–

John G. Roberts, Jr.:

Well, then he knew he wasn’t the only one getting notice.

John C. Neiman Jr.:

–Right.

John G. Roberts, Jr.:

Or he knew that he was the only one who was supposed to get notice.

John C. Neiman Jr.:

Well, the — the cc line in this case cannot establish cause and cannot be deemed State interference for any number of reasons.

The first is that — I suppose it could only be held to establish cause if it would have been reasonable for Mr. Butler to assume that the cc line communicated a message that it was perfectly okay for him to do nothing, and to not take further action, based on what is on the cc line, and there are at least three reasons why that would not be a reasonable reading of the cc line.

The first is that the cc line doesn’t communicate that Ingen-Housz and Munanka were the people listed on the cc line, will in fact receive the order, all it says is that the order will be sent to Ingen-Housz and Munanka.

The second is that the — even if it would have been reasonable for him, for Mr. Butler to assume that Ingen-Housz and Munanka would receive the — the order in this case, it would not have been reasonable for him to have done nothing, given that Rule 7 of the Alabama rules made him jointly and severally responsible or — to the client and to the court in this case.

Sonia Sotomayor:

I guess the problem is, accept the rule; it exists.

But if a lawyer says,

“I don’t care, I’m not going to do whatever the rules require me to do. “

what more do you need for abandonment?

Sonia Sotomayor:

If a lawyer comes in and says,

“I understand this is a rule of the court. “

“I understand that I’m supposed to do x, y, and z. “

“I don’t care. “

“I’m just not. “

that’s the question.

John C. Neiman Jr.:

Yes, well–

Sonia Sotomayor:

What’s the difference between “I don’t care” and abandonment?

John C. Neiman Jr.:

–I — Your Honor, I guess I should just make — make a couple points in response to that.

First is that, as I understood the question posed on the cc line, that is all about not abandonment, but whether the clerk — the clerk’s actions can be blamed for — or the default be blamed on the clerk.

Sonia Sotomayor:

We are not talking about the notice issue, we are talking about the abandonment question.

John C. Neiman Jr.:

On the abandonment question, if it really were — if it really is true that Butler had decided he was going to do nothing in this case and not represent his client and not be an attorney for the client, then there might be a viable argument that Butler was not — was not — had abandoned the client in some way, but that is not the — a reasonable reading of the record in this case.

Antonin Scalia:

If we find — if we find that these lawyers did abandon their client, would there be some sanction imposed upon them by the Bar?

I often wonder, just as when we find that there’s been inadequate assistance of counsel in a capital case, does anything happen to the counsel who have been inadequate in a capital case?

John C. Neiman Jr.:

Your Honor, I suppose it would depend on exactly what the allegations are.

Antonin Scalia:

Have you ever heard of anything happening to them?

Other than they are getting another capital case?

[Laughter]

John C. Neiman Jr.:

Your Honor, I have not.

Certainly the rules provide that a breach of the rules of professional responsibility would be sanctionable by that State Bar — both against the Alabama attorney here and the New York attorney.

John G. Roberts, Jr.:

You said — you said a few moments ago that Butler did more than your friend suggested.

What more did he do?

John C. Neiman Jr.:

Well, of course, we discussed in the brief the very — the undisputable fact that Butler filed numerous things, and the act of default occurred in this case.

But even–

John G. Roberts, Jr.:

Well, after the default, sure.

But what did he do before?

John C. Neiman Jr.:

–Butler’s affidavit certainly — the filing in the State court proceedings certainly doesn’t say,

“I was in this only to swear these people in, or move for their admission and nothing else. “

What Butler says–

John G. Roberts, Jr.:

What did he do more than that?

John C. Neiman Jr.:

–Butler says on page 255(a) in the petition appendix that he agreed to serve as local counsel.

“Local counsel” has a specified meaning under Alabama law.

John G. Roberts, Jr.:

You made a fairly serious suggestion that your friend did not accurately represent what he did.

And you still hadn’t told me one thing he did more than move the admission of the out-of-town attorneys.

John C. Neiman Jr.:

Let me withdraw any suggestion that I am saying that Butler had in fact done something that’s — that’s clear on the record.

My time is up, may I finish?

John G. Roberts, Jr.:

Sure.

John C. Neiman Jr.:

The — my point was that Butler did not simply agree just to move these people — move these people’s admission.

Butler said he would be local counsel.

And the role of local counsel is defined by Rule 7 and includes an obligation to attend hearings, conferences and the like.

John G. Roberts, Jr.:

Thank you, counsel.

Thank you.

Mr. Garre, you have four minutes remaining.

Gregory G. Garre:

Thank you, Mr. Chief Justice.

We agree that this is a sue generis case.

The facts are extraordinary, the facts are shocking, and our position is simply that under this Court’s precedence, the extraordinary facts here, Mr. Maples has established cause to excuse the default.

With respect to local counsel, apart from the fact that the State communicated directly with Mr. Maples in extraordinary dissent after the default, maybe the other telling thing is that in 2006, Alabama itself limited the local counsel requirement for pro bono proceedings, recognizing that it could only create problems; it didn’t add anything.

With respect to abandonment, I understand understood at times my counsel, my friend, to acknowledge that abandonment may establish an external event with respect to the client.

If that’s so and I think it’s clear that at we’re at a minimum, we are entitled to a remand.

There were statements about what was clear in the record, and I think at a minimum, the record is not clear on a number of things that this Court would have to get into if it were going to consider adopting the state’s position that Mr. Maples was not abandoned.

Mr. Maples was in a prison cell.

His attorneys of record did not tell him that they had left the firm.

They were required not only to tell the Court–

Antonin Scalia:

We don’t have to adopt the State’s position that he was not abandoned, we have to adopt your position that he was abandoned.

Gregory G. Garre:

–And you have a record of the attorneys leaving without only not notifying Mr. Maples, not notifying the Court, and not obtaining the Court’s approval, which is required by Rule 6.2 of the Alabama Rules of Criminal Procedure–

Samuel A. Alito, Jr.:

What is troubling to me about the abandonment argument is that — is the fear that if the Court says that abandonment is cause, there will be many, many cases in which the allegation is my attorney wasn’t just ineffective and negligent, the attorney was so bad that the attorney in effect abandoned me.

And that will substantially change existing law.

Now how can that be prevented?

Gregory G. Garre:

–Working through agency principles that go back to Justice Storey’s time.

Working through principles established in this Court’s decision in Holland, and will be applied in Holland.

Gregory G. Garre:

The lower court in Holland issued a decision and found that Mr. Collins had abandoned Mr. Holland.

Using this Court’s precedence as a guide.

So I think Holland already recognizes that attorney abandonment can be extreme; we’re just asking the Court to apply the same principles in recognizing that what is external in one context can not be not external in the other context–

Sonia Sotomayor:

Counsel, do you know how often Holland’s brief has been granted — since it’s very recent, but how — how — how frequently Collins relief has been granted by the courts below?

Gregory G. Garre:

–I don’t know the answer to that question.

I am not aware of any flood of relief in such cases.

I expect that this would be very extreme.

I think the facts here are about as extreme as you can get.

Elena Kagan:

Mr. Garre, how do we distinguish between abandonment and simply a botched, very botched, transfer of responsibility within the law firm?

Gregory G. Garre:

When you have counsel of record leaving without obtaining the approval required or telling the Court, I think that is abandonment pure and simple.

Beyond that, you would look to agency principles, whether it’s a breach of loyalty.

This is going to be a fact.

You would want to get into the facts, although I think it is a very high bar.

I think the Holland decision makes it a high bar.

I think this case thoroughly passes that bar, but it’s something that the courts will work out applying agency principles and applying the Court’s decision in Holland.

Recognizing what Holland said in this case isn’t going to create a new rule; it’s simply going to extend logically the recognition that attorney abandonment is external to the client as it always has been under agency principles.

With respect to notice, this Court doesn’t have to find a constitutional violation on the State’s part.

It’s enough for cause that the Court finds that the State’s actions are external.

And I think the key inquiry is what Justice Kagan recognized, which is you look to what a person who is actually desirous of providing notice.

In this situation, the clerk got two notices back, “left firm”.

It opened it up, it would have seen an order for a capital case and it did nothing.

I don’t think anyone who actually desired to provide notice with an inmate with his life on the line would do nothing reasonably in that situation.

Mr. Maples is not asking to be released from prison.

He is asking for an opportunity to present a serious constitutional claim of ineffective assistance of counsel to a Federal habeas court on the merits.

If the claims are as manifest as we think, that clearly will have little burden on it.

But simply allowing those claims to be adjudicated on the merits in Federal court will go a long way to preserve the legitimacy in criminal justice in a case in which a man’s life is at stake.

John G. Roberts, Jr.:

Thank you, counsel.

The case is submitted.