Cory Maples May Avoid Procedural Default, But Will Anyone Else Ride His Coattails?

The Supreme Court ruled earlier this week that habeas petitioner Cory Maples may not have to bear the consequences of a truly egregious dereliction of duty by his pro bono lawyers.  The lower federal courts had refused to consider Maples’ petition on the merits because he had missed a filing deadline in state court.  Normally, criminal defendants are stuck with the mistakes of their lawyers, but in this case — “a veritable perfect storm of misfortune,” as Justice Alito called it — the defendant will have another opportunity to litigate his claims.  (The full opinion in Maples v. Thomas is here.)

Here’s what happened.  Maples was convicted of murder and sentenced to death by an Alabama state court.  His direct appeals were unsuccessful.  He then launched a collateral attack in state trial court.  The Supreme Court recounted what happened next: 


His petition, filed in August 2001, was written by two New York attorneys serving pro bono, both associated with the same New York-based large law firm. An Alabama attorney, designated as local counsel, moved the admission of the out-of-state counsel pro hac vice. As understood by New York counsel, local counsel would facilitate their appearance, but would undertake no substantive involvement in the case.

In the summer of 2002, while Maples’ postconviction petition remained pending in the Alabama trial court, his New York attorneys left the law firm; their new employment disabled them from continuing to represent Maples.They did not inform Maples of their departure and consequent inability to serve as his counsel. Nor did they seek the Alabama trial court’s leave to withdraw. Neither they nor anyone else moved for the substitution of counsel able to handle Maples’ case.

In May 2003, the Alabama trial court denied Maples’ petition. Notices of the court’s order were posted to the New York attorneys at the address of the law firm with which they had been associated. Those postings were returned, unopened, to the trial court clerk, who attempted no further mailing. With no attorney of record in fact acting on Maples’ behalf, the time to appeal ran out.

Thereafter, Maples petitioned for a writ of habeas corpus in federal court. The District Court and, in turn, the Eleventh Circuit, rejected his petition, pointing to the procedural default in state court, i.e., Maples’ failure timely to appeal the Alabama trial court’s order denying him postconviction relief. Maples, it is uncontested, was blameless for the default.

In order to overcome a procedural default, a habeas petitioner must normally show cause to excuse the default and resulting prejudice.  The Supreme Court granted cert. in Maples’ case to decide whether he satisfied the “cause” prong.  (Thus, although Maples won in the Supreme Court, the Court seems to have left open the possibility that he might still lose on “prejudice” on remand.)

In trying to establish “cause,” Maples’ big problem was Coleman v. Thompson, 501 U.S. 722 (1991), which held that the ineffectiveness of postconviction counsel does not qualify as cause:

That is so, we reasoned in Coleman, because the attorney is the prisoner’s agent, and under “well-settled principles of agency law,” the principal bears the risk of negligent conduct on the part of his agent.  (12)

So, was there something in the conduct of Maples’ lawyers that went beyond mere negligence?  Yes, ruled the Court:

A markedly different situation is presented, however, when an attorney abandons his client without notice, and thereby occasions the default. Having severed the principal agent relationship, an attorney no longer acts, or fails to act, as the client’s representative.  His acts or omissions therefore “cannot fairly be attributed to [the client].” (12-13 (citations omitted))

The Court thus drew a “distinction between attorney negligence and attorney abandonment.” (14 n.7)  And, reviewing the whole course of conduct of Maples’ pro bono attorneys, the Court seemingly had little difficulty concluding that they crossed the line from negligence into abandonment.

One interesting question that all of this raises is whether Maples will provide any benefit to any other habeas petitioners.  The Court’s decision rested on a lengthy analysis of the facts specific to Maples’ situation, and those facts were indeed quite extraordinary.  Certainly, if the Court were so inclined, it would have a ready basis for distinguishing Maples from just about any other case that is likely to arise in the future.  Recall Alito’s remark, in his concurring opinion, that Maples was a “perfect storm.”

Yet, if there is one thing we have learned from more than a quarter century of litigation under the Strickland test for ineffective assistance of counsel, it is that the seemingly stark difference between not having a lawyer and having an ineffective lawyer is illusory.  As a practical matter, the failure to appoint a lawyer at all stands merely as the endpoint in a continuum of failures of representation.  We’ve seen cases of drunk lawyers, sleeping lawyers, depressed and despondent lawyers, lawyers who do absolutely no pretrial preparation, and on and on.  In many of these cases, it seems that the client might actually have been better off not having a lawyer at all — at least that way, the client would have been on notice that he had to look out after his interests.

Similarly, attorney abandonment is not a simple either/or proposition, but is instead a question of degree.  Again, think of a continuum, with simple negligence at one end and the Maples facts at the other.  In between, one may find any number of fact patterns that go beyond mere carelessness and suggest a more thoroughgoing disregard for the client’s interests — even if not quite at the level of Maples’ attorneys.  It seems possible that the Court’s endorsement of a negligence/abandonment distinction may open the door for habeas petitioners in some of these other factual scenarios, too.

Put differently, there seems nothing intrinsic to the concept of “abandonment” that would necessarily limit its reach to the most extreme cases.

This brings us to the most mysterious aspect of the Maples majority opinion: the lengthy discussion of the manifest deficiencies in Alabama’s system for providing indigent defense.  Reading the first few pages of the opinion, one might get the mistaken impression that this was a class-action lawsuit seeking structural reform, rather than a single petitioner litigating over the application of a narrow, technical aspect of habeas law.  So why do we get all of this structural stuff, which seemingly ends up not playing into the Court’s resolution of Maples’ appeal?

Indeed, this is precisely why Alito filed his concurring opinion — to emphasize that “whatever may be said about Alabama’s system, I do not think that Alabama’s system had much if anything to do with petitioner’s misfortune.”  (2)

The motives of Justice Ginsburg, writing for the majority, are not entirely clear in this regard, but perhaps she was trying to suggest that what happened to Maples was not just bad luck, but rather a predicable consequence of systemic failure.  Although the facts of Maples were  particularly extreme, the systemic flaws that produced Maples will also predictably produce many other cases on the abandonment continuum.  And if we keep our eyes on the underlying systemic problems that run through all of these cases, perhaps we will be less inclined to see Maples as so readily distinguishable from the next case of procedural default.

This Post Has One Comment

  1. Ellen Henak

    The extensive discussion of the Alabama system also occurs in the brief on behalf of Mr. Maples. Whether that discussion was an attempt to suggest “this situation is unique because it could only occur in Alabama” or an attempt to suggest “this situation also is not Mr. Maples’ fault because the system itself is so hard to navigate” is not clear to me after reading the brief.

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