LOCATION: Environmental Protection Agency
DOCKET NO.: 83-218
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Fourth Circuit
CITATION: 468 US 1 (1984)
ARGUED: Mar 27, 1984
DECIDED: Jun 27, 1984
Barry Nakell - on behalf of the Respondent
Edwin S. Kneedler - as amicus curiae
Richard N. League - on behalf of the Petitioners
Facts of the case
Media for Reed v. Ross
Audio Transcription for Oral Argument - March 27, 1984 in Reed v. Ross
Warren E. Burger:
Mr. League, I think you may proceed whenever you're ready.
Richard N. League:
Mr. Chief Justice, and may it please the Court:
This case is presenting the issue of whether or not cause is sufficient grounds to excuse the procedural default in the context of a habeas corpus proceeding.
Our position is that in this particular case it isn't.
Briefly, the facts of this case are that Daniel Ross in 1969 was convicted in Wake County, North Carolina of first degree murder in a trial that he put on evidence of self-defense in.
The instructions of the trial judge gave the state the benefit of a presumption of unlawfulness and malice because a deadly weapon was used, and also put the burden of proof in one of two contexts on Mr. Ross to negate self-defense.
Mr. Ross appealed his case.
He did not assign this error, the instructions in this regard, and that is where we urge that the procedural default comes in, at that time and under present day law as well, although it's now changed in terms of the particular statute.
North Carolina required an issue that could be raised on appeal to be so raised.
It could not be raised if it were a matter of record on post-conviction review after the appeal under ordinary circumstances.
We have an initial problem in this case as to whether we do have a forfeiture because of some language in the North Carolina Supreme Court's decision on the matter, and I'll address that first.
And the language they used was this: that the burden of proof was properly allocated in the case.
That was used, however, not in the context of an issue being raised about this matter, but it was made as a part of a discussion that... whether or not... on whether or not it was proper for the court not to have charged on the offense of involuntary manslaughter.
There's a reference in the instructions on down the line that the court... or pardon me... in the opinion on down the line that the court was waiving its rule with regard to assignments of error to parts of the charge.
However, this, too, was made in the context of referring to the matter, whether or not the instruction on involuntary manslaughter was properly not given.
It was not made in connection with the reference to the burden of proof some paragraph and a half, two paragraphs above that.
On thing that's occurred to me with regard to this matter that might provide the Court some assistance in determining whether this rather cursory reference should amount to a waiver of the state's forfeiture rule is something that comes out of exhaustion law.
And when an issue is presented in a state court, a fact situation is presented in a state court on the basis of one legal theory, that's not viewed as an exhaustion of a... of a separate legal theory.
Therefore, to the extent this Court may feel that the North Carolina Supreme Court to some extent waived its procedural default rule, I would argue that the most they were looking for... and it was on their own initiative... would be somewhat of a plain error approach; that it was not a complete waiver of the state's forfeiture rule.
At most it would be sort of a pro tanto type thing.
And the interest in comity that the courts recognized underline the recognition of procedural defaults over in the habeas corpus proceeding ought to apply to the same extent that the state court recognized and followed its own rule, and that would be the large extent in this case.
At the post-conviction level there's an additional problem as well, unfortunately, and that stems from the judge at the Superior Court level saying in rejecting the man's post-conviction proceeding or petition that no grounds for relief were stated.
Then he goes on to say that under the Post-Conviction Relief Act... and I argue to you that that certainly is most likely construed as a procedural waiver, particularly in the context in which it was said... after recitation of the man's efforts, including his appeal and his lack of success there.
There wasn't any... any reference to a substance obviation, whether it was right or wrong.
We've suggested to the Court in our brief the Hayes case from Alabama, U.S. District Court case, provides a good basis for approaching this.
And the points they make or that are made by the court in that case... the fact that there's a well-established body of procedural default rule that would... procedural default law that would apply here; and the fact that it would be correctly applied here as shown by a number of cases we cite on page 12 in the footnote to our brief; the fact that the state pled forfeiture, as it did at its first opportunity... that would be at the appeal level.
Now, in state post-conviction proceedings in North Carolina, often an answer is not required from the District Attorney's Office, and that was the case here.
The adjudication is made just from a survey of the writ itself or the petition itself initially.
It's only if some concern is raised by it to the reviewing court that they will go ahead and call for an answer from the state.