EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, May 5, 2017

Why the State's Attempt to Restrict Curtis in the Adnan Syed Appeal Wouldn't Work

In its Reply Brief and Appendix of Cross-Appellee, the State makes the following argument:

Screen Shot 2017-05-04 at 8.04.38 PM

The State, however, didn't mention an equally important development in Maryland law that occurred in 2002.

In Stovall v. State, 800 A.2d 31 (Md.App. 2002), Darren Stovall was convicted of felony murder and robbery. After he was convicted, Stovall brought a first PCR petition, which was denied. Thereafter,  Stovall filed two motion to reopen, claiming, inter alia, that "appellate counsel rendered ineffective assistance of counsel, based on his failure to raise two issues on appeal." After the circuit court denied the second motion to reopen, the Court of Special Appeals of Maryland granted Stovall's Application for Leave to Appeal.

After that appeal, the Court of Special Appeals concluded that a postconviction petitioner:

(1) is entitled to the effective assistance of post conviction counsel, and (2) has a right to reopen a post conviction proceeding by asserting facts that-if proven to be true at a subsequent hearing-establish that post conviction relief would have been granted but for the ineffective assistance of the petitioner's post conviction counsel.

As I noted on Monday, this was based upon the conclusion that the right to counsel and the right to the effective assistance of counsel are coterminous. 

So, what does this mean for the State's argument and Adnan's appeal? The State is claiming that the legislative narrowing of the Uniform Postconviction Procedure Act ("UPPA") in 1995 so that a petitioner can only file one PCR petition "reinforces the aspiration of finality" because it only allows one bite at the apple. If a petitioner's first PCR petition is unsuccessful, he can't file another one. This is why, according to the State, the Court of Special Appeals should overrule or at least circumscribe the ruling in Curtis v. State, 284 Md. 132 (1978). Otherwise, a petitioner could bring PCR petition after PCR petition, claiming that he received the ineffective assistance of trial counsel, and the Maryland courts would have to entertain them, unless the State could prove "intelligent and knowing" waiver.

But Stovall illustrates why this claim doesn't hold water. Assume, for instance, that defense counsel fails to properly handle forensic hair evidence at a trial in 2017, with that evidence being the most important evidence against the defendant, who is convicted of murder and sentenced in July 2017. Later, the defendant's appellate attorney files a PCR petition in 2026 that does not raise a viable ineffective assistance/hair evidence claim, and the defendant's PCR petition is denied in 2028. Under Judge Welch's reading of Curtis, the defendant could now file a motion to reopen and bring the ineffective assistance/hair evidence claim in, say, 2029 as long as he could establish that his Post conviction counsel didn't discuss the hair evidence with him, meaning that he didn't intelligently and knowingly waive the claim.

Conversely, what would happen if we apply the State's destruction/construction of Curtis, meaning that Curtis/the "intelligent and knowing" waiver standard (1) doesn't apply to ineffective assistance claims at all; or (2) only applies to issues that require an in court colloquy? The answer is that we have the same result; we just get there a different way. In this scenario, pursuant to Stovall, the defendant (1) had the right to the effective assistance of post conviction counsel; and (2) has the right to reopen the PCR proceeding because he has a meritorious ineffective assistance/hair evidence claim that would have been granted but for the ineffective assistance of post conviction counsel.

Therefore, the State's claim about a broad reading of Curtis undermining finality and promoting serial petitions is misplaced. All a limited reading of Curtis would do is shift successor claims of ineffective assistance of trial counsel into claims of ineffective assistance of post conviction counsel. The defendant would still get just as many bites at the apple.

 

-CM

http://lawprofessors.typepad.com/evidenceprof/2017/05/in-itsreply-brief-and-appendix-of-cross-appellee-the-state-makes-the-following-argument-d.html

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Comments

It has been suggested that if CSA rules in Adnan's favor on the waiver issue, it would cause a flood of previously thought to be waived additional claims to be filed.

That seems wrong to me. As I understand it, timely filed PCR petitions can be amended with additional claims until they are finally resolved, which requires the defendant not to appeal, or be denied ALA, or a ruling from the appellate court. Some such a small number of cases are granted leave to appeal, it is hard for me to see where the flood would come from.

Also, wasn't Adnan only able to add his cell tower claim because it had not been knowingly and intelligently waived by him?

Posted by: Michael | May 5, 2017 12:03:44 PM

Michael: There are (primarily) two ways that COSA could find that the cell tower claim was not waived. The first is to find that Poole applies to Adnan’s case and that amendments to timely filed PCR petitions are freely allowed until COSA finally litigates the issues in a petition. Even assuming that this isn’t already the law, it would only extend Poole to one situation: the situation where COSA grants leave to appeal and then remands. As far as we know, Adnan’s case is the only case where COSA has done this. Therefore, there would be no flood of litigation.

The second is to find under Curtis that all claims of ineffective assistance of counsel that aren’t raised in prior PCR petitions can be raised in subsequent petitions unless the defendant intelligently and knowingly waived those claims. The State is right that this reading of Curtis (assuming it’s not the current reading) could lead to a flood of defendants bringing 2nd, 3rd, etc. PCR petitions, claiming ineffective assistance of trial counsel. But my point in this post is that a more restrictive reading of Curtis wouldn’t lead to a different result based upon Stovall. Under Stovall, a defendant who lost on his first PCR petition could then bring 1st, 2nd, 3rd, etc. motions to reopen, claiming ineffective assistance of post conviction counsel.

Posted by: Colin | May 5, 2017 12:25:32 PM

I can't help thinking that the State may have kind of a point here, despite Stovall. Just because you leave the back door unlocked doesn't mean that it makes no difference at all if the front door is too.

It really doesn't make me happy to think that, for more reasons than just that I'm rooting for Adnan. I start from the position that there's no such thing as too many petitioners, just too few courts. And if I were on the appellate bench (which I think I absolutely should be, btw) I ultimately wouldn't come down on the State's side of the argument.

But that wouldn't be because they didn't have one. It would be because per my (imaginary, unqualified) judicial philosophy, (a) IAC actually does deny petitioner of a fundamental right, which really should require a knowing and intelligent waiver; and (b) something that might or might not happen in the future is simply not a good enough reason to trash a precedent that isn't actually causing any problems yet, Thiru, please.

Still, in all intellectual honesty, I think they may kind of have an argument on this one point. .

Posted by: pluscachange | May 5, 2017 8:26:52 PM

In case it's not clear, the reason that I say that Curtis is not causing problems yet is that owing to the unusual procedural posture in which this case comes to us, the court is able to reach a conclusion on waiver via Poole, thus allowing us to kick the can of worms passed to us by the circuit court in the form of Curtis down the road until another day..

Therefore, despite some ambiguity about how the legislature intended the knowing and intelligent waiver standard (Johnson v. Zerbst, blah blah blah) to work in the context of Section 7-103(a) of UPPA, we find that the matter is not yet ripe for disposition.

I have a feeling that I might not be doing this right..

.

Posted by: pluscachange | May 5, 2017 9:33:16 PM

pluscachange: My question would be whether Curtis is really the “front door” while Stovall is the “back door.” Let’s take another look at my hypothetical. Under Judge Welch’s reading of Curtis, the defendant in 2029 has to file a motion to reopen based upon the UPPA’s “one petition” rule. Then, the defendant has to explain why he didn’t intelligently and knowingly waive the ineffective assistance/hair evidence argument so that he can claim he received the ineffective assistance of trial counsel. If the defendant is able to prove non-waiver, the postconviction proceeding is reopened, and the defendant might now be able to prove ineffective assistance.

Under the State’s destruction/construction of Curtis, the defendant has to file a motion to reopen based upon the UPPA’s “one petition” rule. Then. The defendant has to explain why he didn’t knowingly and intelligently waive the ineffective assistance/hair evidence argument so that he can claim he received the ineffective assistance of post conviction counsel. If the defendant is able to prove non-waiver, the postconviction proceeding is reopened, and the defendant might now be able to prove ineffective assistance.

In other words, both defendants have to file motions to reopen, and both defendants need to prove lack of intelligent and knowing waiver.

Posted by: Colin | May 6, 2017 4:14:42 AM

Colin-

Are you going to do an undisclosed episode after oral arguments?

Posted by: Teeter | May 6, 2017 7:07:20 AM

Teeter: Yes.

Posted by: Colin | May 6, 2017 9:58:15 AM

@Colin --

I understand that the law already allows for the thing that the State claims Curtis would wreak havoc by allowing. And that does take the wind out of the State's sails. But if that thing is presumed for the sake of argument to have an adverse effect, aren't two ways of doing it different than one?

Posted by: pluscachange | May 6, 2017 10:59:07 AM

pluscachange: I agree that it’s different, but is it meaningfully different? In my hair evidence example, under the State’s destruction/construction of Curtis, the defendant could only hire new post conviction counsel and file a motion to reopen, claiming that his first post conviction counsel was ineffective for failing to raise the claim. Meanwhile, under Judge Welch’s construction, the defendant could either do this OR use initial or new post conviction counsel to file a motion to reopen, claiming that he never knowingly and intelligently waived his ineffective assistance/hair evidence claim. But he couldn’t do both.

Posted by: Colin | May 6, 2017 12:30:25 PM

That seems right but wrong, which probably means it's right and I'm stubborn.

I think "The State’s destruction/construction of Curtis" would be an excellent title for something. Maybe a lesser-known work by Brecht/Weill.

Posted by: pluscachange | May 6, 2017 7:19:04 PM

Dude, The States Deconstruction of Curtis is what I'm naming my King Crimson'esque prog rock band. After we break up and I do my self aggrandizing solo project entitled "Stovall Thru the Outdoor"

Posted by: Paul | May 15, 2017 5:33:34 PM

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