MAPLES v. THOMAS

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

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No. 10–63

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CORY R. MAPLES, PETITIONER v. KIM T. THOMAS, COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS

on writ of certiorari to the united states court of appeals for the eleventh circuit

[January 18, 2012]

Justice Ginsburg delivered the opinion of the Court.

Cory R. Maples is an Alabama capital prisoner sentenced to death in 1997 for the murder of two individuals. At trial, he was represented by two appointed lawyers, minimally paid and with scant experience in capital cases. Maples sought postconviction relief in state court, alleging ineffective assistance of counsel and several other trial infirmities. 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 re-turned, 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.

The sole question this Court has taken up for review is whether, on the extraordinary facts of Maples’ case, there is “cause” to excuse the default. Maples maintains that there is, for the lawyers he believed to be vigilantly representing him had abandoned the case without leave of court, without informing Maples they could no longer represent him, and without securing any recorded substitution of counsel. We agree. Abandoned by counsel, Maples was left unrepresented at a critical time for his state postconviction petition, and he lacked a clue of any need to protect himself pro se. In these circumstances, no just system would lay the default at Maples’ death-cell door. Satisfied that the requisite cause has been shown, we reverse the Eleventh Circuit’s judgment.

I A

Alabama sets low eligibility requirements for lawyers appointed to represent indigent capital defendants at trial. American Bar Association, Evaluating Fairness and Accuracy in State Death Penalty Systems: The Alabama Death Penalty Assessment Report 117–120 (June 2006) (hereinafter ABA Report); Brief for Alabama Appellate Court Justices et al. as Amici Curiae 7–8 (hereinafter Justices Brief). Appointed counsel need only be a member of the Alabama bar and have “five years’ prior experience in the active practice of criminal law.” Ala. Code §13A–5–54 (2006). Experience with capital cases is not required. Justices Brief 7–8. Nor does the State provide, or require appointed counsel to gain, any capital-case-specific professional education or training. ABA Report 129–131; Jus-tices Brief 14–16.

Appointed counsel in death penalty cases are also undercompensated. ABA Report 124–129; Justices Brief 12–14. Until 1999, the State paid appointed capital defense attorneys just “$40.00 per hour for time expended in court and $20.00 per hour for time reasonably expended out of court in the preparation of [the defendant’s] case.” Ala. Code §15–12–21(d) (1995). Although death penalty litigation is plainly time intensive, 1 the State capped at $1,000 fees recoverable by capital defense attorneys for out-of-court work. Ibid. 2 Even today, court-appointed attorneys receive only $70 per hour. 2011 Ala. Acts no. 2011–678, pp. 1072–1073, §6.

Nearly alone among the States, Alabama does not guarantee representation to indigent capital defendants in postconviction proceedings. ABA Report 111–112, 158–160; Justices Brief 33. The State has elected, instead, “to rely on the efforts of typically well-funded [out-of-state] volunteers.” Brief in Opposition in Barbour v. Allen, O. T. 2006, No. 06–10605, p. 23. Thus, as of 2006, 86% of the attorneys representing Alabama’s death row inmates in state collateral review proceedings “either worked for the Equal Justice Initiative (headed by NYU Law professor Bryan Stevenson), out-of-state public interest groups like the Innocence Project, or an out-of-state mega-firm.” Brief in Opposition 16, n. 4. On occasion, some prisoners sentenced to death receive no postconviction representation at all. See ABA Report 112 (“[A]s of April 2006, approximately fifteen of Alabama’s death row inmates in the fi-nal rounds of state appeals had no lawyer to represent them.”).

B

This system was in place when, in 1997, Alabama charged Maples with two counts of capital murder; the victims, Stacy Alan Terry and Barry Dewayne Robinson II, were Maples’ friends who, on the night of the murders, had been out on the town with him. Maples pleaded not guilty, and his case proceeded to trial, where he was represented by two court-appointed Alabama attorneys. Only one of them had earlier served in a capital case. See Tr. 3081. Neither counsel had previously tried the penalty phase of a capital case. Compensation for each lawyer was capped at $1,000 for time spent out-of-court preparing Maples’ case, and at $40 per hour for in-court services. See Ala. Code §15–12–21 (1995).

Finding Maples guilty on both counts, the jury recommended that he be sentenced to death. The vote was 10 to 2, the minimum number Alabama requires for a death recommendation. See Ala. Code §13A–5–46(f) (1994) (“The decision of the jury to recommend a sentence of death must be based on a vote of at least 10 jurors.”). Accepting the jury’s recommendation, the trial court sentenced Maples to death. On direct appeal, the Alabama Court of Criminal Appeals and the Alabama Supreme Court affirmed the convictions and sentence. Ex parte Maples, 758 So. 2d 81 (Ala. 1999); Maples v. State, 758 So. 2d 1 (Ala. Crim. App. 1999). We denied certiorari. Maples v. Alabama, 531 U. S. 830 (2000) .

Two out-of-state volunteers represented Maples in postconviction proceedings: Jaasi Munanka and Clara Ingen-Housz, both associates at the New York offices of the Sullivan & Cromwell law firm. At the time, Alabama required out-of-state attorneys to associate local counsel when seeking admission to practice pro hac vice before an Alabama court, regardless of the nature of the proceeding. Rule Governing Admission to the Ala. State Bar VII (2000) (hereinafter Rule VII). 3 The Alabama Rule further prescribed that the local attorney’s name “appear on all no-tices, orders, pleadings, and other documents filed in the cause,” and that local counsel “accept joint and several responsibility with the foreign attorney to the client, to opposing parties and counsel, and to the court or administrative agency in all matters [relating to the case].” Rule VII(C).

Munanka and Ingen-Housz associated Huntsville, Alabama attorney John Butler as local counsel. Notwithstanding his obligations under Alabama law, Butler informed Munanka and Ingen-Housz, “at the outset,” that he would serve as local counsel only for the purpose of allowing the two New York attorneys to appear pro hac vice on behalf of Maples. App. to Pet. for Cert. 255a. Given his lack of “resources, available time [and] experience,” Butler told the Sullivan & Cromwell lawyers, he could not “deal with substantive issues in the case.” Ibid. The Sullivan & Cromwell attorneys accepted Butler’s conditions. Id., at 257a. This arrangement between out-of-state and local attorneys, it appears, was hardly atypical. See Justices Brief 36 (“The fact is that local counsel for out-of-state attorneys in post-conviction litigation most often do nothing other than provide the mechanism for foreign attorneys to be admitted.”).

With the aid of his pro bono counsel, Maples filed a petition for postconviction relief under Alabama Rule of Criminal Procedure 32. 4 Among other claims, Maples asserted that his court-appointed attorneys provided con-stitutionally ineffective assistance during both guilt and penalty phases of his capital trial. App. 29–126. He alleged, in this regard, that his inexperienced and underfunded attorneys failed to develop and raise an obvious intoxication defense, did not object to several egregious instances of prosecutorial misconduct, and woefully underprepared for the penalty phase of his trial. The State responded by moving for summary dismissal of Maples’ petition. On December 27, 2001, the trial court denied the State’s motion.

Some seven months later, in the summer of 2002, both Munanka and Ingen-Housz left Sullivan & Cromwell. App. to Pet. for Cert. 258a. Munanka gained a clerkship with a federal judge; Ingen-Housz accepted a position with the European Commission in Belgium. Ibid. Neither attorney told Maples of their departure from Sullivan & Cromwell or of their resulting inability to continue to represent him. In disregard of Alabama law, see Ala. Rule Crim. Proc. 6.2, Comment, neither attorney sought the trial court’s leave to withdraw, App. to Pet. for Cert. 223a. Compounding Munanka’s and Ingen-Housz’s inaction, no other Sullivan & Cromwell lawyer entered an appearance on Maples’ behalf, moved to substitute counsel, or otherwise notified the court of any change in Maples’ representation. Ibid.

Another nine months passed. During this time period, no Sullivan & Cromwell attorneys assigned to Maples’ case sought admission to the Alabama bar, entered appearances on Maples’ behalf, or otherwise advised the Alabama court that Munanka and Ingen-Housz were no longer Maples’ attorneys. Thus, Munanka and Ingen-Housz (along with Butler) remained Maples’ listed, and only, “attorneys of record.” Id., at 223a.

There things stood when, in May 2003, the trial court, without holding a hearing, entered an order denying Maples’ Rule 32 petition. App. 146–225. 5 The clerk of the Alabama trial court mailed copies of the order to Maples’ three attorneys of record. He sent Munanka’s and Ingen-Housz’s copies to Sullivan & Cromwell’s New York address, which the pair had provided upon entering their appearances.

When those copies arrived at Sullivan & Cromwell, Munanka and Ingen-Housz had long since departed. The notices, however, were not forwarded to another Sullivan & Cromwell attorney. Instead, a mailroom employee sent the unopened envelopes back to the court. “Returned to Sender—Attempted, Unknown” was stamped on the envelope addressed to Munanka. App. to Reply to Brief in Opposition 8a. A similar stamp appeared on the envelope addressed to Ingen-Housz, along with the handwritten notation “Return to Sender—Left Firm.” Id., at 7a.

Upon receiving back the unopened envelopes he had mailed to Munanka and Ingen-Housz, the Alabama court clerk took no further action. In particular, the clerk did not contact Munanka or Ingen-Housz at the personal telephone numbers or home addresses they had provided in their pro hac vice applications. See Ingen-Housz Verified Application for Admission to Practice Under Rule VII, p. 1; and Munanka Verified Application for Admission to Practice Under Rule VII, p. 1, in Maples v. State, No. CC–95–842.60 (C. C. Morgan Cty., Ala.). Nor did the clerk alert Sullivan & Cromwell or Butler. Butler received his copy of the order, but did not act on it. App. to Pet. for Cert. 256a. He assumed that Munanka and Ingen-Housz, who had been “CC’d” on the order, would take care of filing an appeal. Ibid.

Meanwhile, the clock ticked on Maples’ appeal. Under Alabama’s Rules of Appellate Procedure, Maples had 42 days to file a notice of appeal from the trial court’s May 22, 2003 order denying Maples’ petition for postconviction relief. Rule 4(a)(1) (2000). No appeal notice was filed, and the time allowed for filing expired on July 7, 2003.

A little over a month later, on August 13, 2003, Alabama Assistant Attorney General Jon Hayden, the attorney representing the State in Maples’ collateral review proceedings, sent a letter directly to Maples. App. to Pet. for Cert. 253a–254a. Hayden’s letter informed Maples of the missed deadline for initiating an appeal within the State’s system, and notified him that four weeks remained during which he could file a federal habeas petition. Ibid. Hayden mailed the letter to Maples only, using his prison address. Ibid. No copy was sent to Maples’ attorneys of record, or to anyone else acting on Maples’ behalf. Ibid.

Upon receiving the State’s letter, Maples immediately contacted his mother. Id., at 258a. She telephoned Sullivan & Cromwell to inquire about her son’s case. Ibid. Prompted by her call, Sullivan & Cromwell attorneys Marc De Leeuw, Felice Duffy, and Kathy Brewer submitted a motion, through Butler, asking the trial court to reissue its order denying Maples’ Rule 32 petition, thereby restarting the 42-day appeal period. Id., at 222a.

The trial court denied the motion, id., at 222a–225a, not-ing that Munanka and Ingen-Housz had not withdrawn from the case and, consequently, were “still attorneys of record for the petitioner,” id., at 223a. Furthermore, the court added, attorneys De Leeuw, Duffy, and Brewer had not “yet been admitted to practice in Alabama” or “entered appearances as attorneys of record.” Ibid. “How,” the court asked, “can a Circuit Clerk in Decatur, Alabama know what is going on in a law firm in New York, New York?” Id., at 223a–224a. Declining to blame the clerk for the missed notice of appeal deadline, the court said it was “unwilling to enter into subterfuge in order to gloss over mistakes made by counsel for the petitioner.” Ibid.

Maples next petitioned the Alabama Court of Criminal Appeals for a writ of mandamus, granting him leave to file an out-of-time appeal. Rejecting Maples’ plea, the Court of Criminal Appeals determined that, although the clerk had “assumed a duty to notify the parties of the resolution of Maples’s Rule 32 petition,” the clerk had satisfied that obligation by sending notices to the attorneys of record at the addresses those attorneys provided. Id., at 234a–235a. Butler’s receipt of the order, the court observed, sufficed to notify all attorneys “in light of their apparent co-counsel status.” Id., at 235a–236a (quoting Thomas v. Kellett, 489 So. 2d 554, 555 (Ala. 1986)). The Alabama Supreme Court summarily affirmed the Court of Criminal Appeals’ judgment, App. to Pet. for Cert. 237a, and this Court denied certiorari, Maples v. Alabama, 543 U. S. 1148 (2005) .

Having exhausted his state postconviction remedies, Maples sought federal habeas corpus relief. Addressing the ineffective-assistance-of-trial-counsel claims Maples stated in his federal petition, the State urged that Maples had forever forfeited those claims. Maples did, indeed, present the claims in his state postconviction (Rule 32) petition, the State observed, but he did not timely appeal from the trial court’s denial of his petition. That procedural default, the State maintained, precluded federal-court consideration of the claims. 6 Maples replied that the default should be excused, because he missed the appeal deadline “through no fault of his own.” App. 262 (internal quotation marks omitted).

The District Court determined that Maples had defaulted his ineffective-assistance claims, and that he had not shown “cause” sufficient to overcome the default. App. to Pet. for Cert. 49a–55a. The court understood Maples to argue that errors committed by his postconviction counsel, not any lapse on the part of the court clerk in Alabama, provided the requisite “cause” to excuse his failure to meet Alabama’s 42-days-to-appeal Rule. Id., at 55a. Such an argument was inadmissible, the court ruled, because this Court, in Coleman v. Thompson, 501 U. S. 722 (1991) , had held that the ineffectiveness of postconviction appellate counsel could not qualify as cause. App. to Pet. for Cert. 55a (citing Coleman, 501 U. S., at 751).

A divided panel of the Eleventh Circuit affirmed. Maples v. Allen, 586 F. 3d 879 (2009) (per curiam). In accord with the District Court, the Court of Appeals’ majority held that Maples defaulted his ineffective-assistance claims in state court by failing to file a timely notice of appeal, id., at 890, and that Coleman rendered Maples’ assertion of “cause” unacceptable, 586 F. 3d, at 891.

Judge Barkett dissented. Id., at 895–898. She concluded that the Alabama Court of Criminal Appeals had acted “arbitrarily” in refusing to grant Maples’ request for an out-of-time appeal. Id., at 896. In a case involving “indistinguishable facts,” Judge Barkett noted, the Alabama appellate court had allowed the petitioner to file a late appeal. Ibid. (citing Marshall v. State, 884 So. 2d 898, 899 (Ala. Crim. App. 2002)). Inconsistent application of the 42-days-to-appeal rule, Judge Barkett said, “render[ed] the rule an inadequate ground on which to bar federal review of Maples’s claims.” 586 F. 3d, at 897. The interests of justice, she added, required review of Maples’ claims in view of the exceptional circumstances and high stakes involved, and the absence of any fault on Maples’ part. Ibid.

We granted certiorari to decide whether the uncommon facts presented here establish cause adequate to excuse Maples’ procedural default. 562 U. S. ___ (2011).

II A

As a rule, a state prisoner’s habeas claims may not be entertained by a federal court “when (1) ‘a state court [has] declined to address [those] claims because the prisoner had failed to meet a state procedural requirement,’ and (2) ‘the state judgment rests on independent and adequate state procedural grounds.’ ” Walker v. Martin, 562 U. S. ___, ___ (2011) (slip op., at 7) (quoting Coleman, 501 U. S., at 729–730). The bar to federal review may be lifted, however, if “the prisoner can demonstrate cause for the [procedural] default [in state court] and actual prejudice as a result of the alleged violation of federal law.” Id., at 750; see Wainwright v. Sykes, 433 U. S. 72 –85 (1977).

Given the single issue on which we granted review, we will assume, for purposes of this decision, that the Alabama Court of Criminal Appeals’ refusal to consider Maples’ ineffective-assistance claims rested on an independ-ent and adequate state procedural ground: namely, Maples’ failure to satisfy Alabama’s Rule requiring a notice of appeal to be filed within 42 days from the trial court’s final order. Accordingly, we confine our consideration to the question whether Maples has shown cause to excuse the missed notice of appeal deadline.

Cause for a procedural default exists where “something external to the petitioner, something that cannot fairly be attributed to him[,] . . . ‘impeded [his] efforts to comply with the State’s procedural rule.’ ” Coleman, 501 U. S., at 753 (quoting Murray v. Carrier, 477 U. S. 478, 488 (1986) ; emphasis in original). Negligence on the part of a prisoner’s postconviction attorney does not qualify as “cause.” Coleman, 501 U. S., at 753. 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. Id., at 753–754. See also Irwin v. Department of Veterans Affairs, 498 U. S. 89, 92 (1990) (“Under our system of representative litigation, ‘each party is deemed bound by the acts of his lawyer-agent.’ ” (quoting Link v. Wabash R. Co., 370 U. S. 626, 634 (1962) )). Thus, when a petitioner’s postconviction attorney misses a filing deadline, the petitioner is bound by the oversight and cannot rely on it to establish cause. Coleman, 501 U. S., at 753–754. We do not disturb that general rule.

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. See 1 Restatement (Third) of Law Governing Lawyers §31, Comment f (1998) (“Withdrawal, whether proper or improper, terminates the lawyer’s authority to act for the client.”). His acts or omissions therefore “cannot fairly be attributed to [the client].” Coleman, 501 U. S., at 753. See, e.g., Jamison v. Lockhart, 975 F. 2d 1377, 1380 (CA8 1992) (attorney conduct may provide cause to excuse a state procedural default where, as a result of a conflict of interest, the attorney “ceased to be [petitioner’s] agent”); Porter v. State, 339 Ark. 15, 16–19, 2 S. W. 3d 73, 74–76 (1999) (finding “good cause” for petitioner’s failure to file a timely habeas petition where the petitioner’s attorney terminated his representation without notifying petitioner and without taking “any formal steps to withdraw as the attorney of record”).

Our recent decision in Holland v. Florida, 560 U. S. ___ (2010), is instructive. That case involved a missed one-year deadline, prescribed by 28 U. S. C. §2244(d), for filing a federal habeas petition. Holland presented two issues: first, whether the §2244(d) time limitation can be tolled for equitable reasons, and, second, whether an attorney’s unprofessional conduct can ever count as an “extraordinary circumstance” justifying equitable tolling. 560 U. S., at ___, ___–___ (slip op., at 1, 16–17) (internal quotation marks omitted). We answered yes to both questions.

On the second issue, the Court recognized that an at-torney’s negligence, for example, miscalculating a filing deadline, does not provide a basis for tolling a statutory time limit. Id., at ___ (slip op., at 19); id., at ___–___ (Alito, J., concurring in part and concurring in judgment) (slip op., at 5–6); see Lawrence v. Florida, 549 U. S. 327, 336 (2007) . The Holland petitioner, however, urged that attorney negligence was not the gravamen of his complaint. Rather, he asserted that his lawyer had detached himself from any trust relationship with his client: “[My lawyer] has abandoned me,” the petitioner complained to the court. 560 U. S., at ___–___ (slip op., at 3–4) (brackets and internal quotation marks omitted); see Nara v. Frank, 264 F. 3d 310, 320 (CA3 2001) (ordering a hearing on whether a client’s effective abandonment by his lawyer merited tolling of the one-year deadline for filing a federal habeas petition).

In a concurring opinion in Holland, Justice Alito homed in on the essential difference between a claim of attorney error, however egregious, and a claim that an attorney had essentially abandoned his client. 560 U. S., at ___–___ (slip op., at 5–7). Holland’s plea fit the latter category: He alleged abandonment “evidenced by counsel’s near-total failure to communicate with petitioner or to respond to petitioner’s many inquiries and requests over a period of several years.” Id., at ___ (slip op., at 6); see id., at ___–___, ___ (majority opinion) (slip op., at 3–4, 20). If true, Justice Alito explained, “petitioner’s allegations would suffice to establish extraordinary circumstances beyond his control[:] Common sense dictates that a litigant cannot be held constructively responsible for the conduct of an attorney who is not operating as his agent in any meaningful sense of that word.” Id., at ___ (slip op., at 6). 7

We agree that, under agency principles, a client cannot be charged with the acts or omissions of an attorney who has abandoned him. Nor can a client be faulted for failing to act on his own behalf when he lacks reason to believe his attorneys of record, in fact, are not representing him. We therefore inquire whether Maples has shown that his attorneys of record abandoned him, thereby supplying the “extraordinary circumstances beyond his control,” ibid., necessary to lift the state procedural bar to his federal petition.

B

From the time he filed his initial Rule 32 petition until well after time ran out for appealing the trial court’s denial of that petition, Maples had only three attorneys of record: Munanka, Ingen-Housz, and Butler. Unknown to Maples, not one of these lawyers was in fact serving as his attorney during the 42 days permitted for an appeal from the trial court’s order.

1

The State contends that Sullivan & Cromwell represented Maples throughout his state postconviction proceedings. Accordingly, the State urges, Maples cannot establish abandonment by counsel continuing through the six weeks allowed for noticing an appeal from the trial court’s denial of his Rule 32 petition. We disagree. It is undisputed that Munanka and Ingen-Housz severed their agency relationship with Maples long before the default occurred. See Brief for Respondent 47 (conceding that the two attorneys erred in failing to file motions to withdraw from the case). Both Munanka and Ingen-Housz left Sullivan & Cromwell’s employ in the summer of 2002, at least nine months before the Alabama trial court entered its order denying Rule 32 relief. App. to Pet. for Cert. 258a. Their new employment—Munanka as a law clerk for a federal judge, Ingen-Housz as an employee of the European Commission in Belgium—disabled them from continuing to represent Maples. See Code of Conduct for Judicial Employees, Canon 4(D)(3) (1999) (prohibiting judicial employees from participating in “litigation against federal, state or local government”); Staff Regulations of Officials of the European Commission, Tit. I, Art. 12b (2004) (employees cannot perform outside work without first obtaining authorization from the Commission), available at http://ec.europa.eu/civil_service/docs/toc100_ en.pdf (as visited Jan. 13, 2012, and in Clerk of Court’s case file). Hornbook agency law establishes that the attorneys’ departure from Sullivan & Cromwell and their commencement of employment that prevented them from representing Maples ended their agency relationship with him. See 1 Restatement (Second) of Agency §112 (1957) (hereinafter Restatement (Second)) (“[T]he authority of an agent terminates if, without knowledge of the principal, he acquires adverse interests or if he is otherwise guilty of a serious breach of loyalty to the principal.”); 2 id., §394, Comment a (“[T]he agent commits a breach of duty [of loyalty] to his principal by acting for another in an undertaking which has a substantial tendency to cause him to disregard his duty to serve his principal with only his principal’s purposes in mind.”).

Furthermore, the two attorneys did not observe Alabama’s Rule requiring them to seek the trial court’s permission to withdraw. See Ala. Rule Crim. Proc. 6.2, Comment. Cf. 1 Restatement (Second) §111, Comment b (“[I]t is ordinarily inferred that a principal does not intend an agent to do an illegal act.”). By failing to seek permission to withdraw, Munanka and Ingen-Housz allowed the court’s records to convey that they represented Maples. As listed attorneys of record, they, not Maples, would be the addressees of court orders Alabama law requires the clerk to furnish. See Ala. Rule Crim. Proc. 34.5 (“Upon the entry of any order in a criminal proceeding made in response to a motion, . . . the clerk shall, without undue delay, furnish all parties a copy thereof by mail or by other appropriate means.”) and 34.4 (“[W]here the defendant is represented by counsel, service shall be made upon the attorney of record.”).

Although acknowledging that Munanka and Ingen-Housz severed their agency relationship with Maples upon their departure from Sullivan & Cromwell, the State argues that, nonetheless, Maples was not abandoned. Other attorneys at the firm, the State asserts, continued to serve as Maples’ counsel. Regarding this assertion, we note, first, that the record is cloudy on the role other Sullivan & Cromwell attorneys played. In an affidavit submitted to the Alabama trial court in support of Maples’ request that the court reissue its Rule 32 order, see supra, at 9, partner Marc De Leeuw stated that he had been “in-volved in [Maples’] case since the summer of 2001.” App. to Pet. for Cert. 257a. After the trial court initially denied the State’s motion to dismiss in December 2001, De Leeuw informed the court, Sullivan & Cromwell “lawyers working on this case for Mr. Maples prepared for [an anticipated] evidentiary hearing.” Id., at 258a. Another Sullivan & Cromwell attorney, Felice Duffy, stated, in an affidavit submitted to the Alabama trial court in September 2003, that she “ha[d] worked on [Maples’] case since October 14, 2002.” App. 231. But neither De Leeuw nor Duffy described what their “involve[ment]” or “wor[k] on [Maples’] case” entailed. And neither attorney named the lawyers, other than Munanka and Ingen-Housz (both of them still with Sullivan & Cromwell in December 2001), engaged in preparation for the expected hearing. Nor did De Leeuw identify the specific work, if any, other lawyers performed on Maples’ case between Munanka’s and Ingen-Housz’s departures and the firm’s receipt of the telephone call from Maples’ mother. 8

The slim record on activity at Sullivan & Cromwell, however, does not warrant a remand to determine more precisely the work done by firm lawyers other than Munanka and Ingen-Housz. For the facts essential to our decision are not in doubt. At the time of the default, the Sullivan & Cromwell attorneys who later came forward—De Leeuw, Felice Duffy, and Kathy Brewer—had not been admitted to practice law in Alabama, had not entered their appearances on Maples’ behalf, and had done nothing to inform the Alabama court that they wished to substitute for Munanka and Ingen-Housz. Thus, none of these attorneys had the legal authority to act on Maples’ behalf before his time to appeal expired. Cf. 1 Restatement (Second) §111 (The “failure to acquire a qualification by the agent without which it is illegal to do an authorized act . . . terminates the agent’s authority to act.”). 9 What they did or did not do in their New York offices is therefore beside the point. At the time critical to preserving Maples’ access to an appeal, they, like Munanka and Ingen-Housz, were not Maples’ authorized agents.

2

Maples’ only other attorney of record, local counsel Butler, also left him abandoned. Indeed, Butler did not even begin to represent Maples. Butler informed Munanka and Ingen-Housz that he would serve as local counsel only for the purpose of enabling the two out-of-state attorneys to appear pro hac vice. Supra, at 5–6. Lacking the necessary “resources, available time [and] experience,” Butler told the two Sullivan & Cromwell lawyers, he would not “deal with substantive issues in the case.” Ibid. That the minimal participation he undertook was inconsistent with Alabama law, see Rule VII, supra, at 5, underscores the absurdity of holding Maples barred because Butler signed on as local counsel.

In recognizing that Butler had no role in the case other than to allow Munanka and Ingen-Housz to appear pro hac vice, we need not rely solely on Butler’s and De Leeuw’s statements to that effect. App. to Pet. for Cert. 255a–258a. Other factors confirm that Butler did not “operat[e] as [Maples’] agent in any meaningful sense of that word.” Holland, 560 U. S., at ___ (Alito, J., concurring in part and concurring in judgment) (slip op., at 6). The first is Butler’s own conduct. Upon receiving a copy of the trial court’s Rule 32 order, Butler did not contact Sullivan & Cromwell to ensure that firm lawyers were taking appropriate action. Although Butler had reason to believe that Munanka and Ingen-Housz had received a copy of the court’s order, see App. 225 (indicating that Munanka and Ingen-Housz were CC’d on the order), Butler’s failure even to place a phone call to the New York firm substantiates his disclaimer of any genuinely representative role in the case.

Notably, the State did not treat Butler as Maples’ actual representative. Assistant Attorney General Hayden addressed the letter informing Maples of the default directly to Maples in prison. See supra, at 8. Hayden sent no copy to, nor did he otherwise notify, any of the attorneys listed as counsel of record for Maples. Lawyers in Alabama have an ethical obligation to refrain from communicating directly with an opposing party known to be represented by counsel. See Ala. Rule of Professional Conduct 4.2 (2003); Ala. Rule Crim. Proc. 34.4 (requiring that the service of all documents “be made upon the attorney of record”). In writing directly and only to Maples, notwithstanding this ethical obligation, Assistant Attorney General Hayden must have believed that Maples was no longer represented by counsel, out-of-state or local. 10

In sum, the record admits of only one reading: At no time before the missed deadline was Butler serving as Maples’ agent “in any meaningful sense of that word.” Holland, 560 U. S., at ___ (opinion of Alito, J.) (slip op., at 6).

3

Not only was Maples left without any functioning attorney of record, the very listing of Munanka, Ingen-Housz, and Butler as his representatives meant that he had no right personally to receive notice. See supra, at 16. He in fact received none or any other warning that he had better fend for himself. Had counsel of record or the State’s attorney informed Maples of his plight before the time to appeal ran out, he could have filed a notice of appeal himself 11 or enlisted the aid of new volunteer attorneys. 12 Given no reason to suspect that he lacked counsel able and willing to represent him, Maples surely was blocked from complying with the State’s procedural rule.

C

“The cause and prejudice requirement,” we have said, “shows due regard for States’ finality and comity interests while ensuring that ‘fundamental fairness [remains] the central concern of the writ of habeas corpus.’ ” Dretke v. Haley, 541 U. S. 386, 393 (2004) (quoting Strickland v. Washington, 466 U. S. 668, 697 (1984)). In the unusual circumstances of this case, principles of agency law and fundamental fairness point to the same conclusion: There was indeed cause to excuse Maples’ procedural default. Through no fault of his own, Maples lacked the assistance of any authorized attorney during the 42 days Alabama allows for noticing an appeal from a trial court’s denial of postconviction relief. As just observed, he had no reason to suspect that, in reality, he had been reduced to pro se status. Maples was disarmed by extraordinary circumstances quite beyond his control. He has shown ample cause, we hold, to excuse the procedural default into which he was trapped when counsel of record abandoned him without a word of warning.

III

Having found no cause to excuse the failure to file a timely notice of appeal in state court, the District Court and the Eleventh Circuit did not reach the question of prejudice. See supra, at 10–11. That issue, therefore, remains open for decision on remand.

*  *  *

For the reasons stated, the judgment of the Court of Appeals for the Eleventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

__________________________________

1  One study of federal capital trials from 1990 to 1997 found that de-fense attorneys spent an average of 1,480 out-of-court hours prepar-ing a defendant’s case. Subcommittee on Federal Death Penalty Cases, Committee on Defender Services, Judicial Conference of the United States, Federal Death Penalty Cases: Recommendations Concerning the Cost and Quality of Defense Representation 14 (May 1998).

2  In 1999, the State removed the cap on fees for out-of-court work in capital cases. Ala. Code §15–12–21(d) (2010 Cum. Supp.). Perhaps not coincidentally, 70% of the inmates on Alabama’s death row in 2006, including Maples, had been convicted when the $1,000 cap was in effect. ABA Report 126.

3  In 2006, Alabama revised Rule VII. See Rule Governing Admission to the Ala. State Bar VII (2009). Under the new rule, the State allows out-of-state counsel to represent pro bono indigent criminal defendants in postconviction proceedings without involvement of local counsel. Ibid.

4  Originally filed in August 2001, the petition was resubmitted, with only minor alterations, in December 2001. See App. 22–24, 28–142.

5  One of Maples’ attorneys observed, without contradiction, that the trial court’s order was a “word for word copy of the proposed Order that the State had submitted [with] its [December 2001] Motion to Dismiss.” Id., at 300.

6  In opposing Maples’ request for an out-of-time appeal, the State argued to the Alabama Supreme Court that such an appeal was unwarranted. In that context, the State noted that Maples “may still present his postconviction claims to [the federal habeas] court.” 35 Record, Doc. No. 55, p. 22, n. 4. The State’s current position is in some tension with that observation.

7  Holland v. Florida, 560 U. S. ___ (2010), involved tolling of a federal time bar, while Coleman v. Thompson, 501 U. S. 722 (1991) , concerned cause for excusing a procedural default in state court. See Holland, 560 U. S., at ___ (slip op., at 18). We see no reason, however, why the distinction between attorney negligence and attorney abandonment should not hold in both contexts.

8  The unclear state of the record is perhaps not surprising, given Sullivan & Cromwell’s representation of Maples after the default. As amici for Maples explain, a significant conflict of interest arose for the firm once the crucial deadline passed. Brief for Legal Ethics Professors et al. as Amici Curiae 23–27. Following the default, the firm’s interest in avoiding damage to its own reputation was at odds with Maples’ strongest argument—i.e., that his attorneys had abandoned him, therefore he had cause to be relieved from the default. Yet Sullivan & Cromwell did not cede Maples’ representation to a new attorney, who could have made Maples’ abandonment argument plain to the Court of Appeals. Instead, the firm represented Maples through briefing and oral argument in the Eleventh Circuit, where they attempted to cast responsibility for the mishap on the clerk of the Alabama trial court. Given Sullivan & Cromwell’s conflict of interest, Maples’ federal habeas petition, prepared and submitted by the firm, is not persuasive evidence that Maples, prior to the default, ever “viewed himself” as represented by “the firm,” see post, at 4, rather than by his attorneys of record, Munanka and Ingen-Housz.

9  The dissent argues that the Sullivan & Cromwell attorneys had no basis “to infer that Maples no longer wanted them to represent him, simply because they had not yet qualified before the Alabama court.” Post, at 6–7. While that may be true, it is irrelevant. What the attorneys could have inferred is that Maples would not have wanted them to file a notice of appeal on his behalf prior to their admission to practice in Alabama, for doing so would be “illegal,” post, at 7 (internal quotation marks omitted). See also 1 Restatement (Second) §111, Comment b, quoted supra, at 16. For the critical purpose of filing a notice of appeal, then, the other Sullivan & Cromwell attorneys had no authority to act for Maples.

10  It bears note, as well, that the State served its response to Maples’ Rule 32 petition only on Munanka at Sullivan & Cromwell’s New York address, not on Butler. App. 26. While the State may not be obligated to serve more than one attorney of record, its selection of New York rather than local counsel is some indication that, from the start, the State was cognizant of the limited role Butler would serve. Conforming the State’s Rule to common practice, in 2006, the Alabama Supreme Court amended the provision on appearances by out-of-state counsel to eliminate the requirement that such attorneys associate local counsel when representing indigent criminal defendants pro bono in postconviction proceedings. See supra, at 5, n. 3.

11  The notice is a simple document. It need specify only: the party taking the appeal, the order or judgment appealed from, and the name of the court to which appeal is taken. Ala. Rule App. Proc. 3(c) (2000).

12  Alabama grants out-of-time appeals to prisoners proceeding pro se who were not timely served with copies of court orders. See Maples v. Allen, 586 F. 3d 879, 888, and n. 6 (CA11 2009) (per curiam) (citing Ex parte Miles, 841 So. 2d 242, 243 (Ala. 2002), and Ex parte Robinson, 865 So. 2d 1250, 1251–1252 (Ala. Crim. App. 2003) (per curiam)). Though Maples was not a pro se petitioner on the record, he was, in fact, without authorized counsel.

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–63

_________________

CORY R. MAPLES, PETITIONER v. KIM T. THOMAS, COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS

on writ of certiorari to the united states court of appeals for the eleventh circuit

[January 18, 2012]

Justice Scalia, with whom Justice Thomas joins, dissenting.

The Alabama Court of Criminal Appeals held that Cory Maples’ appeal from the denial of his state postconviction petition was barred because he had not filed a notice of appeal within the allotted time. The Court now concludes that Maples has established cause for his procedural default by reason of abandonment by his attorneys. Because I cannot agree with that conclusion, and because Maples’ alternative argument fares no better, I would affirm the judgment.

I A

Our doctrine of procedural default reflects, and furthers, the principle that errors in state criminal trials should be remedied in state court. As we have long recognized, federal habeas review for state prisoners imposes significant costs on the States, undermining not only their practical interest in the finality of their criminal judgments, see Engle v. Isaac, 456 U. S. 107 –127 (1982), but also the primacy of their courts in adjudicating the constitutional rights of defendants prosecuted under state law, id., at 128. We have further recognized that “[t]hese costs are particularly high . . . when a state prisoner, through a procedural default, prevents adjudication of his constitutional claims in state court.” Coleman v. Thompson, 501 U. S. 722, 748 (1991) . In that situation, the prisoner has “deprived the state courts of an opportunity to address those claims in the first instance,” id., at 732, thereby leaving the state courts without “a chance to mend their own fences and avoid federal intrusion,” Engle, 456 U. S., at 129. For that reason, and because permitting federal-court review of defaulted claims would “undercu[t] the State’s ability to enforce its procedural rules,” ibid., we have held that when a state court has relied on an adequate and independent state procedural ground in denying a prisoner’s claims, the prisoner ordinarily may not obtain federal habeas relief. Coleman, 501 U. S., at 729–730.

To be sure, the prohibition on federal-court review of defaulted claims is not absolute. A habeas petitioner’s de-fault in state court will not bar federal habeas review if “the petitioner demonstrates cause and actual prejudice,” id., at 748—“cause” constituting “something external to the petitioner, something that cannot fairly be attributed to him,” that impeded compliance with the State’s procedural rule, id., at 753. As a general matter, an attorney’s mistakes (or omissions) do not meet the standard “because the attorney is the petitioner’s agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must ‘bear the risk of attorney error.’ ” Ibid. (quoting Murray v. Carrier, 477 U. S. 478, 488 (1986) ). See also Link v. Wabash R. Co., 370 U. S. 626 –634, and n. 10 (1962).

When an attorney’s error occurs at a stage of the proceedings at which the defendant has a constitutional right to effective assistance of counsel, that error may constitute cause to excuse a resulting procedural default. A State’s failure in its duty to provide an effective attorney, as measured by the standard set forth in Strickland v. Washington, 466 U. S. 668 (1984) , makes the attorney’s error chargeable to the State, and hence external to the defense. See Murray, supra, at 488. But when the client has no right to counsel—as is the case in the postconviction setting, see Pennsylvania v. Finley, 481 U. S. 551, 555 (1987) —the client bears the risk of all attorney errors made in the course of the representation, regardless of the egregiousness of the mistake. Coleman, supra, at 754 (“[I]t is not the gravity of the attorney’s error that matters, but that it constitutes a violation of petitioner’s right to counsel, so that the error must be seen as an external factor”).

B

In light of the principles just set out, the Court is correct to conclude, ante, at 14, that a habeas petitioner’s procedural default may be excused when it is attributable to abandonment by his attorney. In such a case, Coleman’s rationale for attributing the attorney’s acts and omissions to the client breaks down; for once the attorney has ceased acting as the client’s agent, “well-settled principles of agency law,” 501 U. S., at 754, no longer support charging the client with his lawyer’s mistakes. The attorney’s mistakes may therefore be understood as an “external factor,” ibid., and in appropriate circumstances may jus-tify excusing the prisoner’s procedural default.

I likewise agree with the Court’s conclusion, ante, at 15, that Maples’ two out-of-state attorneys of record, Jaasi Munanka and Clara Ingen-Housz, had abandoned Maples by the time the Alabama trial court entered its order denying his petition for postconviction relief. As the Court observes, ante, at 15–16, without informing Maples or seeking leave from the Alabama trial court to withdraw from Maples’ case, both Munanka and Ingen-Housz left Sullivan & Cromwell’s employ and accepted new positions that precluded them from continuing to represent Maples. This conduct amounted to renunciation of their roles as Maples’ agents, see 1 Restatement (Second) of Agency §119, Comment b (1957) (hereinafter Restatement 2d), and thus terminated their authority to act on Maples’ behalf, id., §118. As a result, Munanka’s and Ingen-Housz’s failure to take action in response to the trial court’s order should not be imputed to Maples.

It is an unjustified leap, however, to conclude that Maples was left unrepresented during the relevant window between the Alabama trial court’s dismissal of his postconviction petition and expiration of the 42-day period for filing a notice of appeal established by Alabama Rule of Appellate Procedure 4(a)(1) (2009). Start with Maples’ own allegations: In his amended federal habeas petition, Maples alleged that, at the time he sought postconviction relief in Alabama trial court, he “was represented by Sullivan & Cromwell of New York, New York.” App. 256. Although the petition went on to identify Munanka and Ingen-Housz as “the two Sullivan lawyers handling the matter,” id., at 257, its statement that Maples was “represented” by the firm itself strongly suggests that Maples viewed himself as having retained the services of the firm as a whole, a perfectly natural understanding. “When a client retains a lawyer who practices with a firm, the presumption is that both the lawyer and the firm have been retained.” 1 Restatement (Third) of the Law Governing Lawyers §31, Comment f, p. 222 (1998). Admittedly, in connection with the attempt before the Alabama trial court to extend the time for appeal, Sullivan & Cromwell partner Marc De Leeuw submitted an affidavit stating that the firm’s lawyers “handle pro bono cases on an individual basis” and that the lawyers who had appeared in Maples’ case had followed that practice, “attempt[ing] not to use the firm name on correspondence or court papers.” App. to Pet. for Cert. 257a. But Maples’ habeas petition is the pleading that initiated the current litigation; and surely the allegations that it contained should be given priority over representations made to prior courts.*

In any case, even if Maples had no attorney-client relationship with the Sullivan & Cromwell firm, Munanka and Ingen-Housz were surely not the only Sullivan & Cromwell lawyers who represented Maples on an individual basis. De Leeuw’s affidavit acknowledged that he had “been involved in [Maples’] case since the summer of 2001,” ibid., roughly a year before Munanka and Ingen-Housz left Sullivan & Cromwell, and it further stated that after “Ms. Ingen-Housz and Mr. Munanka” learned of the court’s initial order denying the State’s motion to dismiss Maples’ postconviction petition in December 2001, “the lawyers working on this case for Mr. Maples prepared for the evidentiary hearing” Maples had requested, id., at 258a. Moreover, when Sullivan & Cromwell attorney Felice Duffy filed a motion to appear pro hac vice before the Alabama trial court in connection with the attempt to extend the deadline, she stated that she had “worked on [Maples’] case since October 14, 2002,” App. 231, months before the procedural default took place.

According to the Court, see ante, at 17, De Leeuw’s affidavit does not make clear how he was “involved” in Maples’ case or whether lawyers other than Munanka and Ingen-Housz were among those who prepared for the anticipated evidentiary hearing; and Duffy’s motion does not make clear what her “wor[k]” entailed. But there is little doubt that Munanka and Ingen-Housz were not the only attorneys who engaged in the preparations; and that De Leeuw was “involved” and Duffy “worked” as lawyers for Maples (what other role could they have taken on?). De Leeuw’s distinction between “Ms. Ingen-Housz and Mr. Munanka” and “the lawyers working on his case for Mr. Maples” would have been senseless if the latter category did not extend beyond the two named attorneys.

In sum, there is every indication that when the trial court entered its order dismissing Maples’ postconviction petition in May 2003, Maples continued to be represented by a team of attorneys in Sullivan & Cromwell’s New York office. The Court nonetheless insists that the actions of these attorneys are irrelevant because they had not been admitted to practice law in Alabama, had not entered appearances in the Alabama trial court, and had not sought to substitute for Munanka and Ingen-Housz. See ante, at 18–19. The Court does not, however, explain why these facts establish that the attorneys were not Maples’ agents for the purpose of attending to those aspects of the case that did not require court appearance—which would certainly include keeping track of orders issued and filing deadlines. The Court’s quotation from the Restatement of Agency, ante, at 18, that the “failure to acquire a qualification by the agent without which it is illegal to do an authorized act . . . terminates the agent’s authority to act,” 1 Restatement 2d, §111, at 290, omits the crucial condition contained at the end of the section: “if thereafter he [the agent] should infer that the principal, if he knew the facts, would not consent to the further exercise of the authority.” There was no basis whatever for these attorneys to infer that Maples no longer wanted them to represent him, simply because they had not yet qualified before the Alabama court. Though it would have been “illegal” for these attorneys to file a notice of appeal without being authorized to practice in Alabama, nothing prevented them from first seeking to secure admission to practice, as Munanka and Ingen-Housz initially had done, and then filing a notice of appeal.

It would create a huge gap in our Coleman jurisprudence to disregard all attorney errors committed before admission to the relevant court; and an even greater gap to disregard (as the Court suggests) all errors committed before the attorney enters an appearance. Moreover, even if these attorneys cannot be regarded as Maples’ agents for purposes of conducting the Alabama litigation, they were at least his agents for purposes of advising him of the impending deadline. His unawareness was the fault of counsel who were his agents, and must be charged to him. What happened here is simply “[a]ttorney ignorance or inadvertence” of the sort that does not furnish cause to excuse a procedural default. Coleman, 501 U. S., at 753.

But even leaving aside the question of Maples’ “unadmitted” attorneys at Sullivan & Cromwell, Maples had a fully admitted attorney, who had entered an appearance, in the person of local counsel, John Butler. There is no support for the Court’s conclusion that Butler “did not even begin to represent Maples.” Ante, at 19. True, the affidavit Butler filed with the Alabama trial court in the proceeding seeking extension of the deadline stated that he had “no substantive involvement” with the case, and that he had “agreed to serve as local counsel only.” App. to Pet. for Cert. 255a. But a disclaimer of “substantive involvement” in a case, whether or not it violates a lawyer’s ethical obligations, see ante, at 19, is not equivalent to a denial of any agency role at all. A local attorney’s “nonsubstantive” involvement would surely include, at a minimum, keeping track of local court orders and advising “substantive” counsel of impending deadlines. Nor did Butler’s explanation for his failure to act when he received a copy of the trial court’s order sound in abandonment. Butler did not say, for instance, that he ignored the order because he did not consider Maples to be his client. Instead, based on “past practice” and the content of the order, Butler “assumed” that Maples’ lawyers at Sullivan & Cromwell would receive a copy. App. to Pet. for Cert. 256a.

The Court gets this badly wrong when it states that “Butler’s failure even to place a phone call to the New York firm” demonstrates Butler’s “disclaimer of any genuinely representative role.” Ante, at 19. By equating the very attorney error that contributed to Maples’ procedural default with the absence of an agency relationship, the Court ensures that today’s opinion will serve as a template for future habeas petitioners seeking to evade Coleman’s holding that ineffectiveness of postconviction counsel will not furnish cause to excuse a procedural default. See 501 U. S., at 752–754. The trick will be to allege, not that counsel was ineffective, but rather that counsel’s ineffectiveness demonstrates that he was not a genuinely representative agent. No precedent should be so easily circumvented by word games, but the damage is particularly acute when the affected precedent is so firmly “grounded in concerns of comity and federalism.” Id., at 730.

The Court’s last-gasp attempt to justify its conclusion that Butler was not Maples’ agent is to point out that a prosecutor sent a letter to Maples directly, informing him of the defaulted appeal. See ante, at 20. The Court reasons that the prosecutor must have thought that Maples had been abandoned by his lawyers, since to communicate with a represented party would have been a violation of ethical standards. Ibid. But even if this supposition is correct, it is hard to understand what it proves. What matters, after all, is not whether the prosecutor thought Maples had been abandoned, but whether Maples really was abandoned. And as it turns out, Butler’s conduct after learning about the default further belies any such contention. Almost immediately, Butler began to cooperate with Maples’ lawyers at Sullivan & Cromwell, filing papers as “Counsel for Mr. Maples” or “Local Counsel for Petitioner Cory Maples” in multiple courts in an attempt to rectify the mistake. See App. 229, 230, 236, 238. Had Butler reassumed his representational duties after having abandoned them? Hardly. There is no proper basis for a conclusion of abandonment interruptus.

II

Maples argues in the alternative that his default should be excused because his right to due process was violated when the trial-court clerk failed to take action after Munanka’s and Ingen-Housz’s copies of the court’s dismissal order were returned undeliverable. According to Maples, our decision in Jones v. Flowers, 547 U. S. 220 (2006) , establishes that the clerk had a duty to do more.

We held in Jones that, when a mailed notice of a tax sale is returned unclaimed, a State must take additional reasonable steps to attempt to provide notice to the property owner before selling his property. See id., at 234. It is questionable whether that holding has any relevance to the circumstances here, which involved not the institution of proceedings against an unwitting litigant, but rather the issuance of an order in a pending case that was instituted by Maples himself. Indeed, I think it doubtful whether due process entitles a litigant to any notice of a court’s order in a pending case. The Federal Rules certainly reject the notion that notice is an absolute requirement. Federal Rule of Civil Procedure 77(d)(2) provides that “[l]ack of notice of the entry [of an order or judgment] does not affect the time for appeal or relieve—or authorize the court to relieve—a party for failing to appeal within the time allowed, except as allowed by Federal Rule of Appellate Procedure (4)(a).” And although Federal Rule of Appellate Rule 4(a)(6) in turn provides that the time for filing an appeal can be reopened when a litigant did not receive notice, it establishes 180 days after the judgment or order is entered as the outer limit by which a motion to reopen must be filed. See Fed. Rule App. Proc. 4(a)(6)(B).

There is no need to grapple with this question, however, because Butler received a copy of the trial court’s order. “Under our system of representative litigation, ‘each party . . . is considered to have notice of all facts, notice of which can be charged upon [his] attorney.’ ” Irwin v. Department of Veterans Affairs, 498 U. S. 89, 92 (1990) (quoting Link v. Wabash R. Co., 370 U. S. 626, 634 (1962) ). The notice to Butler was therefore constitutionally sufficient.

*  *  *

One suspects that today’s decision is motivated in large part by an understandable sense of frustration with the State’s refusal to waive Maples’ procedural default in the interest of fairness. Indeed, that frustration may well explain the Court’s lengthy indictment of Alabama’s general procedures for providing representation to capital defendants, ante, at 2–4, a portion of the Court’s opinion that is so disconnected from the rest of its analysis as to be otherwise inexplicable.

But if the interest of fairness justifies our excusing Maples’ procedural default here, it does so whenever a defendant’s procedural default is caused by his attorney. That is simply not the law—and cannot be, if the states are to have an orderly system of criminal litigation conducted by counsel. Our precedents allow a State to stand on its rights and enforce a habeas petitioner’s procedural default even when counsel is to blame. Because a faithful application of those precedents leads to the conclusion that Maples has not demonstrated cause to excuse his procedural default; and because the reasoning by which the Court justifies the opposite conclusion invites future evisceration of the principle that defendants are responsible for the mistakes of their attorneys; I respectfully dissent.

__________________________________

1 * The Court says that the allegations in Maples’ own habeas petition are not “persuasive evidence,” ante, at 17–18, n. 8, because Maples’ lawyers at Sullivan & Cromwell labored under a conflict of interest when they prepared the document. This is a curious point, since the effect of Maples’ statement was to implicate Sullivan & Cromwell as a firm in missing the filing deadline. The conflict would have induced the Sullivan & Cromwell lawyers to exonerate the firm. To be sure, as the case later developed (at this stage abandonment had not yet been conceived as the litigating strategy), it would have been in Maples’ interest to say he had no lawyers. But the issue the petition’s statement raises is not whether Maples was cleverly represented; it is whether the statement was true. And if Sullivan & Cromwell’s involvement in preparing the petition has any bearing upon that, it only reinforces the truth.

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–63

_________________

CORY R. MAPLES, PETITIONER v. KIM T. THOMAS, COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS

on writ of certiorari to the united states court of appeals for the eleventh circuit

[January 18, 2012]

Justice Alito, concurring.

I join the opinion of the Court. Unbeknownst to petitioner, he was effectively deprived of legal representation due to the combined effect of no fewer than eight unfortunate events: (1) the departure from their law firm of the two young lawyers who appeared as counsel of record in his state postconviction proceeding; (2) the acceptance by these two attorneys of new employment that precluded them from continuing to represent him; (3) their failure to notify petitioner of their new situation; (4) their failure to withdraw as his counsel of record; (5) the apparent failure of the firm that they left to monitor the status of petitioner’s case when these attorneys departed; (6) when notice of the decision denying petitioner’s request for state postconviction relief was received in that firm’s offices, the failure of the firm’s mail room to route that important communication to either another member of the firm or to the departed attorneys’ new addresses; (7) the failure of the clerk’s office to take any action when the envelope containing that notice came back unopened; and (8) local counsel’s very limited conception of the role that he was obligated to play in petitioner’s representation. Under these unique circumstances, I agree that petitioner’s attorneys effectively abandoned him and that this abandonment was a “cause” that is sufficient to overcome pe-titioner’s procedural default.

In an effort to obtain relief for his client, petitioner’s counsel in the case now before us cast blame for what occurred on Alabama’s system of providing legal representation for capital defendants at trial and in state collateral proceedings. See Brief for Petitioner 3–6. But 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. The quality of petitioner’s representation at trial obviously played no role in the failure to meet the deadline for filing his notice of appeal from the denial of his state postconviction petition. Nor do I see any important connection between what happened in this case and Alabama’s system for providing representation for prisoners who are sentenced to death and who wish to petition the state courts for collateral relief. Unlike other States, Alabama relies on attorneys who volunteer to represent these prisoners pro bono, and we are told that most of these volunteers work for large, out-of-state firms. Id., at 4. Petitioner’s brief states that the Alabama system had “a direct bearing on the events giving rise . . . to the procedural default at issue,” id., at 3, but a similar combination of untoward events could have occurred if petitioner had been represented by Alabama attorneys who were appointed by the court and paid for with state funds. The firm whose lawyers represented petitioner pro bono is one of the country’s most prestigious and expensive, and I have little doubt that the vast majority of criminal defendants would think that they had won the lottery if they were given the opportunity to be represented by attorneys from such a firm. See id., at 9 (stating that it “seemed as though Maples had won the lottery when two attorneys working at an elite New York law firm . . . agreed to represent Maples pro bono”).

What occurred here was not a predictable consequence of the Alabama system but a veritable perfect storm of misfortune, a most unlikely combination of events that, without notice, effectively deprived petitioner of legal rep-resentation. Under these unique circumstances, I agree that petitioner’s procedural default is overcome.

Print this transcript Transcript: 

ORAL ARGUMENT OF GREGORY G. GARRE ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We will hear argument first this morning in Case 10-63, Maples v. Thomas.

Mr. Garre.

Mr. 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.

Chief Justice John G. Roberts: 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?

Mr. 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.

Chief Justice John G. Roberts: Well, put -- putting that -- that to one side, what if only one of the three notices had been returned?

Mr. Garre: I think -- if only one from the out-of-State pro bono counsel?

Chief Justice John G. Roberts: Right.

Mr. 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--

Justice Antonin Scalia: Who says so?

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.

Mr. Garre: --That's correct, Justice Scalia.

Justice 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?

Mr. 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.

Justice 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?

Mr. 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--

Justice Elena Kagan: Well, who says that, Mr. Garre?

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

Mr. 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--

Justice 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.

Mr. Garre: --Well--

Justice Sonia Sotomayor: How is he supposed to know the difference between those that do, and those that don't?

Mr. 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--

Justice 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.

Mr. Garre: --Of course.

But the point is--

Justice Antonin Scalia: He didn't perform that function.

Mr. 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--

Justice Anthony Kennedy: But he didn't have a mail drop?

I just didn't hear what you said.

Mr. Garre: --My point was that ordinarily a local counsel would serve as a mail drop; he would forward notice.

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--

Justice 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?

Mr. Garre: --It's in his affidavit, Your Honor, the petition appendix page 256.

Justice Antonin Scalia: His affidavit after -- after the fact, right?

Mr. Garre: That's right, Your Honor.

Justice Antonin Scalia: Did -- did he tell the clerk of the court that that was the case?

Mr. Garre: He did not.

Justice 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?

Mr. Garre: He did not tell the clerk.

But the State itself, Your Honor--

Justice Antonin Scalia: Extraordinary.

Mr. 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.

Justice 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?

Mr. 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--

Justice 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?

Mr. Garre: --He did not.

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.

Justice 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.

Mr. 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.

Justice 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?

Mr. Garre: Well--

Justice Antonin Scalia: The Federal rules don't -- don't require notice, do they.

Mr. Garre: --The Constitution doesn't say that explicitly.

Justice Antonin Scalia: And the Federal rules don't say it.

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

Mr. 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--

Justice 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--

Mr. Garre: --I think under the--

Justice Antonin Scalia: --No, I mean, it's either a rule for all criminal cases or it's not a rule.

Mr. Garre: --Well--

Justice Antonin Scalia: And if -- if it's a rule for all criminal cases, the Federal rules are unconstitutional, you are saying.

Mr. 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--

Justice 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.

Mr. 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.

Chief Justice John G. Roberts: 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?

Mr. 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.

Justice Samuel Alito: 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.

Mr. 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.

Justice 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.

Mr. Garre: Well, clearly that's right.

Justice 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.

Mr. 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--

Justice 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?

Mr. Garre: --Certainly they knew that they were counsel of record in the proceeding.

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.

Justice 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?

Mr. 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.

Justice 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?

Mr. Garre: Yes.

Justice Stephen G. Breyer: Yes, okay.

Mr. Garre: The very actions it took, Justice Breyer.

Justice 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?

Mr. Garre: That's true, Justice Breyer.

Justice 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?

Mr. Garre: Right.

And I think the State's actions--

Justice Antonin Scalia: Do we know that he knew all of those facts?

Mr. Garre: --No, Justice Scalia.

Justice Antonin Scalia: Of course we don't know that.

Mr. 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.

Justice Elena Kagan: Counsel, can I--

Justice Anthony 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?

Mr. 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.

Chief Justice John G. Roberts: 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?

Mr. Garre: That's right.

Chief Justice John G. Roberts: So their conduct prior to that time would be attributed to him, right?

Mr. Garre: I think that's right.

Chief Justice John G. Roberts: 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?

Mr. 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.

Justice 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?

Mr. Garre: The direct proceedings had concluded.

Justice Antonin Scalia: The direct proceedings were over.

He had appealed up to the State supreme court.

Did he seek cert here, too?

Mr. Garre: He did.

Justice Antonin Scalia: He did.

And this was a post-conviction--

Mr. 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.

Justice Antonin Scalia: --That may be, but I don't think it's extraordinary that there be no appeal post conviction.

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

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

Justice Anthony 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?

Mr. 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.

Justice Anthony Kennedy: I'm -- I'm aware of the allegations.

Mr. 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--

Justice 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?

Mr. 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--

Justice Sonia Sotomayor: But the vast majority do?

Mr. Garre: --Absolutely.

Justice Sonia Sotomayor: In capital cases.

Mr. Garre: The vast majority do.

Justice 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--

Mr. Garre: Yes.

Justice Sonia Sotomayor: --in a -- to excuse a procedural bar in a State court.

Mr. Garre: Right.

And that is--

Justice Sonia Sotomayor: So we have to decide first whether we extend Holland to this setting.

Mr. Garre: --Well, I think they're independent grounds.

If the Court concludes that the State's own actions--

Justice Sonia Sotomayor: That's the due process.

I'm talking about -- yes, both we would have to decide.

But assuming -- we have to decide the first question.

Mr. Garre: --Well--

Justice Sonia Sotomayor: Will we extend Holland to this type of situation.

Mr. 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--

Justice Sonia Sotomayor: Yes, I understand.

Mr. Garre: --But with respect to the attorneys, that's right.

Justice Sonia Sotomayor: Yes.

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

Mr. Garre: It would be the line established by agency law going back to Justice Story's time.

Justice 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?

Mr. 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--

Justice Samuel Alito: 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?

Mr. Garre: --The Court could.

Justice Samuel Alito: 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?

Mr. 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--

Justice 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.

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?

Mr. 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--

Justice Elena Kagan: --What do we know about Mr. De Leeuw's role, Mr. Garre.

Mr. 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.

Justice 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?

Mr. 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--

Justice 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?

Mr. 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.

Justice 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?

Mr. Garre: I think there are conflicts of interest here.

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.

Justice Ruth Bader Ginsburg: We do know, though, that they were not counsel of record.

Mr. Garre: We absolutely know that they were not.

Justice 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.

Mr. 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.

Justice 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.

Mr. Garre: We asked--

Justice 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.

Mr. 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.

Justice Antonin Scalia: When did you first make the abandonment claim?

Mr. Garre: Well, I think we've argued--

Justice Antonin Scalia: Wasn't it -- wasn't it first made in the -- in the request for rehearing?

Mr. Garre: --I think explicitly.

Now, we think -- two points on this--

Justice Antonin Scalia: That's rather late.

Mr. 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--

Justice Antonin Scalia: That isn't abandonment.

That isn't abandonment.

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

Mr. 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.

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.

Chief Justice John G. Roberts: Thank you, Mr. Garre.

Mr. Neiman.

ORAL ARGUMENT OF JOHN C. NEIMAN, JR., ON BEHALF OF THE RESPONDENT

Mr. 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.

Chief Justice John G. Roberts: 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?

Mr. Neiman Jr.: In that case, Your Honor, there would be a much more substantial argument.

Chief Justice John G. Roberts: 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?

Mr. 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.

Justice 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?

Mr. Neiman Jr.: Yes, Your Honor.

Justice Antonin Scalia: But does that necessarily mean that they've abandoned the case?

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

Mr. Neiman Jr.: That's correct, Your Honor.

Justice Antonin Scalia: Isn't that the only thing it means for sure, these lawyers are no longer here at Sullivan & Cromwell?

Mr. Neiman Jr.: Yes, Your Honor.

Justice 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?

Mr. 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.

Justice 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.

Mr. 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.

Justice 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?

Mr. 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.

Justice 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?

Mr. 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.

Justice 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.

Mr. Neiman Jr.: Your Honor, the record does not reveal why Mr. Hayden decided to send the letter to Mr. Maples alone--

Justice Antonin Scalia: Of course, he didn't have to send the letter.

That letter had no legal effect, did it?

Mr. Neiman Jr.: --That's correct, Your Honor.

Justice 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.

Mr. Neiman Jr.: That's correct, Your Honor.

Justice Antonin Scalia: So he just made this extraneous volunteered statement to Maples instead of to his lawyer.

I don't know what that proves.

Mr. 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.

Chief Justice John G. Roberts: 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?

Mr. 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--

Justice 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?

Mr. 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.

Justice Sonia Sotomayor: In a capital case.

Justice Anthony Kennedy: Particularly in a capital case.

Mr. 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.

Justice Anthony 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"?

Mr. 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--

Justice Anthony Kennedy: I mean, it's pretty clear that they didn't get the mail, get the letter, because it's sent back.

Mr. Neiman Jr.: --That's correct, Your Honor.

Justice Anthony 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?

Mr. 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.

Justice Anthony Kennedy: Has Alabama ever waived lack of timely appeal in a capital case?

Mr. Neiman Jr.: I'm not aware, Your Honor.

Justice 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?

Mr. Neiman Jr.: Perhaps, Your Honor.

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

Justice 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.

Mr. 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--

Chief Justice John G. Roberts: 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.

Mr. 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.

Chief Justice John G. Roberts: Okay.

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

Right?

Mr. Neiman Jr.: That's correct.

Chief Justice John G. Roberts: From your perspective.

Mr. 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.

Justice 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.

Mr. Neiman Jr.: Your Honor--

Justice 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.

Mr. Neiman Jr.: --I disagree with that assessment, Your Honor.

Justice 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.

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

Right?

Mr. 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.

Justice 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?

Mr. 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.

Justice 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?

Justice 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?

Mr. 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--

Justice Samuel Alito: 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.

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?

Mr. 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.

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

No extension?

Mr. 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--

Justice Samuel Alito: 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?

Mr. 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.

Justice Anthony 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?

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

Justice Ruth Bader Ginsburg: Did you oppose it?

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

Mr. 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--

Justice Anthony Kennedy: Could the state in the Federal litigation have waived the procedural default?

Mr. 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--

Chief Justice John G. Roberts: 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.

Mr. 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.

Justice 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?

Mr. 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.

Justice 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?

Mr. Neiman Jr.: Your Honor--

Justice Stephen G. Breyer: Or should they have known.

Mr. 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.

Justice Stephen G. Breyer: Do they check -- do they check the docket every so often to see what's happened?

Mr. 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--

Justice Stephen G. Breyer: Why did--

Justice 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?

Mr. 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.

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

Mr. Neiman Jr.: No, Your Honor, I don't think that's -- I don't think that's an accurate characterization of--

Justice Sonia Sotomayor: Well--

Mr. Neiman Jr.: --of what exactly happened in this case, but in the very least his lawyers had missed -- had missed the deadline.

Justice 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.

Mr. Neiman Jr.: Well, more so than that, Your Honor.

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

Mr. 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--

Justice Sonia Sotomayor: --Counsel, could you tell me -- I'm assuming you have practiced in your State for a while.

Mr. Neiman Jr.: --Yes, Your Honor.

Justice 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?

Mr. 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.

Justice 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.

Mr. Neiman Jr.: Your Honor, a remand would not be appropriate in this case on those -- on grounds for a number of reasons.

Justice Stephen G. Breyer: Because?

Mr. 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--

Justice 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.

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?

Mr. 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--

Justice Stephen G. Breyer: I think in the briefs -- there is certainly a lot in the briefs that seems to say that.

Mr. 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.

Justice 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?

Mr. Neiman Jr.: That is correct, Your Honor.

Justice Antonin Scalia: It can only go to one, right?

Mr. Neiman Jr.: That's right.

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

Mr. Neiman Jr.: That's correct, Your Honor.

Chief Justice John G. Roberts: 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?

Mr. Neiman Jr.: Yes, Your Honor.

The notice--

Chief Justice John G. Roberts: Well, then he knew he wasn't the only one getting notice.

Mr. Neiman Jr.: --Right.

Chief Justice John G. Roberts: Or he knew that he was the only one who was supposed to get notice.

Mr. 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.

Justice 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?

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.

Mr. Neiman Jr.: Yes, well--

Justice Sonia Sotomayor: What's the difference between "I don't care" and abandonment?

Mr. 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.

Justice Sonia Sotomayor: We are not talking about the notice issue, we are talking about the abandonment question.

Mr. 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.

Justice 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?

Mr. Neiman Jr.: Your Honor, I suppose it would depend on exactly what the allegations are.

Justice Antonin Scalia: Have you ever heard of anything happening to them?

Other than they are getting another capital case?

[Laughter]

Mr. 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.

Chief Justice John G. Roberts: You said -- you said a few moments ago that Butler did more than your friend suggested.

What more did he do?

Mr. 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--

Chief Justice John G. Roberts: Well, after the default, sure.

But what did he do before?

Mr. 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--

Chief Justice John G. Roberts: What did he do more than that?

Mr. 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.

Chief Justice John G. Roberts: 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.

Mr. 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?

Chief Justice John G. Roberts: Sure.

Mr. 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.

Chief Justice John G. Roberts: Thank you, counsel.

Thank you.

Mr. Garre, you have four minutes remaining.

REBUTTAL ARGUMENT BY GREGORY G. GARRE ON BEHALF OF THE PETITIONER

Mr. 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--

Justice 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.

Mr. 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--

Justice Samuel Alito: 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?

Mr. 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.

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--

Justice 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?

Mr. 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.

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

Mr. 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.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.

Print this transcript Transcript: 

Chief Justice John G. Roberts: Justice Ginsburg has not been doodling.

She has the opinion of the Court in three cases today.

Justice Ruth Bader Ginsburg: The first case is Number 10-63, Maples v. Thomas.

Petitioner Cory Maples was sentenced to death after an Alabama jury found him guilty of capital murder.

On direct appeal, the Alabama Supreme Court upheld his conviction and sentence.

Maples then filed a habeas corpus petition in the Alabama trial court.

He alleged that the State failed to secure his constitutional right to an effective trial attorney.

The two attorneys appointed to represent him at trial, Maple stated, lacked experience and were minimally paid, and as a result he asserted his counsel made crucial errors.

Maple state court petition was prepared and submitted by two New York attorneys serving pro bono both associated with the same New York based law firm.

Because the two New York lawyers were not admitted to the bar in Alabama, they enlisted an Alabama attorney to move their admission and serve as local counsel.

The Alabama attorney agreed with the caveat that he would undertake no substantive work in the case.

Maples' attorneys filed his state court petition in August 2001.

In the summer of 2002, while the petition was still pending, the two New York lawyers left their law firm and commence employment that precluded them from service as Maples' counsel.

Neither attorneys sought the Alabama trial court permission to withdraw and neither told Maples' they would no longer able to represent him.

No other attorney at the law firm entered an appearance on Maples' behalf.

Several months later, the Alabama trial court denied Maples' habeas petition.

The court clerk set notice of the denial to the two New York attorneys.

Those notices were returned unopened by the law firms' mailroom.

The clerk also sent a notice to a local counsel who assumed the New York lawyers would pursue an appeal.

He therefore took no action in response to the notice.

With no attorney of record in fact acting on Maples' behalf, the time to appeal ran out.

The Alabama courts subsequently refused Maples' request to file an out-of-time appeal.

Maples then filed a habeas corpus petition in federal court, again asserting he had been denied his right to an effective trial attorney.

The District Court and the Eleventh Circuit rejected the petition relying on Maples' procedural default in state court his failure to file a timely notice of appeal.

The sole question before this Court is whether on the extraordinary facts of this case, there is cause to excuse Maples state court default.

We hold that there is and therefore reversed the Eleventh Circuit's judgment.

Attorney negligence or oversight, we have held, does not provide cause to excuse a procedural default and we do not hold otherwise today.

But Maples alleges something graver than attorney oversight.

He contends that his attorneys abandon him.

"I was unknowingly left without an attorney of record," he complains or still, he pleads, "I have no right to receive and in fact did not receive notice myself because on the record, I had counsel.

Absent any reason to believe I was unrepresented and therefore would have to act personally to preserve my right to appeal," Maple stated, no just system would hold him accountable for the default.

We agree, the attorneys Maples thought were vigilantly representing him had abandoned his case.

They did not so informed Maples or the Alabama court nor did any other lawyer at the New York firm timely seek the Alabama court's permission to serve as substitute counsel.

To no fault of his own, Maples and inmate on death row was left unrepresented at a critical time for his state habeas petition.

And he lacked any clue that he better fend for himself.

The uncommon combinations of mishaps in Maples' case, we hold, provide just cause to excuse the procedural lapse in state court.

Justice Alito has filed a concurring opinion.

Justice Scalia has filed a dissenting opinion, in which Justice Thomas joins.