Gibson v. Turpin Motion for Leave to File Brief and Brief Amicus Curiae in Support of Petitioner

    No. 99-77

I n t h e

Suprem e (Ctutri 0£ tip Jintiex'r Jifetus

EXZAVIOUS LEE GIBSON,
P etitioner,

TONY G. TURPIN, WARDEN,
G e o r g ia  d ia g n o s t ic  a n d  C l a s s if ic a t io n  C e n t e r ,

R espondent.

ON p e t it io n  f o r  w r it  o f  c e r t io r a r i to
THE SUPREME COURT OF GEORGIA

M OTION OF THE NAACP LEGAL DEFENSE 
& EDUCATIONAL FUND FO R LEAVE TO 

FILE BRIEF AS AM ICU S CURIAE  AND BRIEF 
AM IC U S CURIAE  IN SUPPORT OF PETITIO N ER

Elaine R. Jones 
D irec tor-C ounse l

George H. Kendall*
Laura E. Hankins 
NAACP LEGAL DEFENSE & 

EDUCATIONAL FUND, INC. 
99 Hudson Street, 16th Floor 
New York, New York 10013 
(212)965-2200

* C ounsel o f  R ecord



IN THE
SUPREME COURT OF THE UNITED STATES

O c t o b e r  T e r m , 1999

No. 99-77

E x z a v io u s  L e e  G ib s o n ,
Petitioner,

V.
TONY G. TURPIN, WARDEN, GEORGIA DIAGNOSTIC

a n d  Cla ssific a tio n  C e n t e r ,
Respondent.

MOTION OF THE NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND FOR LEAVE TO FILE BRIEF AS 

AMICUS CURIAE AND BRIEF AMICUS CURIAE 
IN SUPPORT OF THE PETITIONER

The NAACP Legal Defense and Educational Fund (“LDF”) 
hereby respectfully moves for leave to file the attached brief as 
amicus curiae pursuant to Rule 37.2(b) of the Rules of this Court. 
Petitioner has consented to the filing of this bnef. Respondent has 
refused consent.

INTEREST OF NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND

LDF is a non-profit corporation formed to assist African- 
American citizens to secure their rights under the Constitution and 
laws of the United States and chartered by the Appellate Division 
of the New York Supreme Court as a legal aid society. See NAACP 
v. Button, 371 U.S. 411, 415 (1963) (recognizing LDF’s



3

“corporate reputation for expertness in presenting and arguing the 
difficult questions of law that frequently arise in civil rights 
litigation”).

LDF has long been involved in efforts to provide counsel 
for indigent condemned prisoners in state and federal post­
conviction proceedings. Since this Court’s decisions in 1976 
allowing the resumption of capital punishment, Gregg v. Georgia, 
428 U.S. 153(1976); Proffitt v. Florida, 428 U.S. 242 (1976); 
Jurek v. Texas, 428 U.S. 262 (1976), lawyers employed by LDF 
have represented hundreds of individuals sentenced to death in state 
and federal post-conviction proceedings in Georgia and other states, 
recruited lawyers to provide pro hono publico representation and 
given advice to lawyers who have come forward to provide such 
representation.

Our experience m these matters has taught us, particularly 
in light of jurisprudential changes in habeas corpus since 
Giarratano, that it is now impossible for a condemned inmate to 
represent himself in a minimally adequate fashion in capital post­
conviction proceedings. The states understand this point: only 
specialist in state attorney generals' offices represent the states' 
interests in these proceedings. We believe the time has come for the 
Court to declare that the Fourteenth Amendment's due process 
clause requires the provision of counsel services in these important 
post-conviction proceedings.

For the above-stated reasons, LDF respectfully urges the 
Court to grant this motion for leave to file the attached brief as 
amicus curiae in the present case in the support of the position of 
the Petitioner.



4

Director-Counsel

George H. Kendall*
La\ira E. Hankins
n A \ c p  l e g a l  d e f e n s e  &
EDUCATIONAL FUND, INC.
99 Hudson St, 16th Floor 
New York, NY 10013 
(212) 965-2200

* Counsel of Record



1

TABLE OF CONTENTS
P a g e

Table of Authorities................................................................  ii

Interest of Amicus Curiae........................................................ 1

Summary of Argument............................................................  1

Argument................................................................................. 4

I. The New Habeas Landscape Is More Complex,
More Accelerated and Far Less Tolerant
of Mistakes, However Technical........................... 4

A. Several decisions since 1989 have made
this process more complicated and less 
comprehensible fo r  pro se applicants..........  6

B. Congressional action has accelerated this
complex process...........................................  11

C. Georgia, like other states, has acted to 
speed up its post-conviction review
system ............................................................ 15

II. In Georgia It Is More Likely Than Not That
Harmful Constitutional Error Mars a 
Capital Conviction or Sentence and Is Not 
Remedied on Direct R eview ...............................  18

Conclusion..............................................................................  20



TABLE OF AUTHORITIES

CASES
P a g e (s)

Brady v. Maryland, 373 U.S. 83 (1963).................................  9

Breardv. Greene, 118 S.Ct. 1352 (1998).............................  15

Brecht v. Abrahamson, 507 U.S. 619 (1993)........................ 11

Brown v. Vasquez, 952 F.2d 1164, cert, denied,
503 U.S. 1011 (1992)...................................... ..............  8

Butler v. McKellar, 494 U.S. 407 (1990).............................  10

Buttrum v. Black, 721 F. Supp. 1268 (N.D.Ga. 1989),
affd., 908 F.2d 695 (11th Cir. 1990)............................  19

Calderon v. United States District Court fo r  Central Dist.
Calif, 163 F.3d 530 (9th Cir. 1998) (en banc)............  12

Coleman v. Thompson, 501 U.S. 722 (1991)...............  6, 7, 8

Douglas v. California, 372 U.S. 353 (1963)....................... 14

Duncan v. Henry, 513 U.S. 364 (1995)..............................  8

Fay v. Noia, 372 U.S. 391 (1963)............ ...........................  6

Fisher v. Johnson, 1999 WL 284954 (5th Cir. 1999)........  11

Fulhvood v. Sivley, — S.E.2d 1999 WL 343724
(Ga. 1999)...............................................................  7, 17

Gibson v. Turpin, 513 S.E.2d 186 (Ga. 1999).............  16, 18

ii



Gibson v. Turpin, No. 95-V-648
(Super. Ct. Butts County Sept. 12, 1996)...................... 17

Graham v. Collins, 506 U.S. 461 (1993)..............................  10

Hill v. Turpin, 135 F.3d 1411 (11th Cir. 1998)..................... 20

Hines v. Tensing, 1998 WL 603397
(E D. La. Sept. 9, 1998)................................................. 15

Jackson v. State, 1999 WL 33904 (Miss. 1999)
(not yet released for publication)...................................  19

Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992)....................... 9

Kotteakos v. United States, 328 U.S. 750 (1946)...............  11

Lambrix v. Singletary, 520 U.S. 518 (1997)...... ................  10

Massiah v. United States, 377 U.S. 201 (1964).................... 7

McCleskeyv. Zant, 499 U.S. 467 (1991)...........................  7-8

McDougald v. Lockhart, 942 F.2d 508 (8th Cir. 1991)......  8

McFarland v. Scott, 512 U.S. 849 (1994).................... passim

Murray v. Carrier, A ll  U.S. 478 (1986).............................  4

Murray v. Giarratano, 492 U.S. 1 (1989)....................passim

Myre v. Iowa, 53 F.3d 199 (8th Cir. 1995)..........................  8

O'Dell v. Netherland, 521 U.S. 151 (1997)

iii

10



IV

O'Sullivan v. Boerchel, 67 U.S.L.W. 4389
(June 7, 1999)...............................................................  6

Penry v. Lynaugh, 492 U.S. 302 (1989).............. ..............  10

Roberts v. Zant, No. 3:92-CV-28-GET
(N.D.Ga. 1992)   19

Ross v. Kemp, 393 S.E.2d 244 (Ga. 1990).............. .......... 20

Royal v. Netherland, 4 F. Supp.2d 540
(E D. Ya. 1998).......   15

Saffle v. Parks, 494 U.S. 484 (1990).................................. 10

Slack v. McDaniel, No. CV-95-194-DWE1
(9th Cir. July 7, 1998) (order denying request for 
certificate of probable cause), cert, granted,
67 U.S.L.W.3511 (U.S. February 22, 1999)
(No. 98-6322)..............................................................  13

Strickland v. Washington, 466 U.S. 668 (1984)................  9

Swain v. Alabama, 380 U.S. 202 (1965)............................ 20

Teague v. Lane, 489 U.S. 298 (1989)............. ..............  9-10

Wainwright v. Sykes, 433 U.S. 72 (1977)....... ..................  14

STATUTES

21 U.S.C. §848(q)(4)(B) (1996)........................................  15

Ga. Ct. R. 44............   16



O.C.G.A. § 9-14-48(d), 4 9 .................................................. 14

O.C.G.A. § 9-14-52 ........................................................... 16

Pub. L. 104-132, 110 Stat. 1214 (1996), codified as 
28 U.S.C. §§ 2241-55,2261-66 
(West Supp. 1998).......................................... passim

Wyo. Stat. Ann. § 7-6-104(c)(ii)( 1999).............................  18

OTHER AUTHORITIES

American Bar Association Amicus Curiae Bnef,
Murray v. Giarratano, No. 88-411........................... 18

Mark D. Cunningham and Mark P. Vigen, Without 
Appointed Counsel in Capital Postconviction 
Proceedings: A Study o f the Self-Representation 
Competency o f Mississippi Death Row Inmates,
Crim. Just - Behav. (forthcoming 1999)................  17

Fulton County Daily Report, June 14, 1999 at 2 0 ...........  18

Roscoe C. Howard, Jr., The Defunding o f the Post-Conviction 
Defense Organizations as a Denial o f the Right to 
Counsel, 98 W.Va L.Rev. 863, 912-15 (1996).........  1

James S. Liebman & Randy Hertz, FEDERAL HABEAS 
C o r pu s  P r a c t ic e  a n d  P r o c e d u r e  § 5. lb 
(3d ed. 1998) ("FHCFP")..........................................  12

Richard J. Wilson & Robert L. Spangenberg, Sta te  
P o s t -C o n v ic t io n  R epr e se n t a t io n  of 
D e fe n d a n t s  Se n t e n c e d  t o  D e a t h ..............................  18

V



1

INTEREST OF AMICUS CURIAE1

The NAACP Legal Defense and Educational Fund (LDF) has 
repeatedly observed the crucial role lawyers play in capital post­
comiction proceedings, both in vindicating the constitutional rights 
of poor people sentenced to death and in ensuring the even-handed 
administration of justice. This has been particularly true in Georgia, 
where relief has been granted as to conviction or sentence for over 
half of the individuals who first sought and were denied direct 
appeal relief, and who thereafter initiated and pursued post­
conviction remedies.

Amicus has observed the problem of lack of representation in 
post-conviction proceedings grow well beyond the crisis stage smce 
the demise of the post-conviction defender organizations five years 
ago.2 While lawyers employed by LDF continue to handle a small 
number of capital post-conviction cases, recruit volunteer lawyers, 
and assist lawyers they and the American Bar Association’s Death 
Penalty Representation Project have recruited, there remain more 
death-sentenced individuals without counsel than lawyers willing to 
represent them.

SUMMARY OF ARGUMENT

This case presents an important issue for the administration of 
the death penalty: Whether the Fourteenth Amendment's promise 
that life not be taken without due process requires states to provide

1 This brief was prepared by counsel of record for amicus, with abundant 
assistance from LDF summer intern Deborah Cornwall. No party or third party 
made any financial contribution in support of these efforts.

2 See Roscoe C. Howard, Jr., The Defunding o f  the Post-Conviction Defense 
Organizations as a Denial o f  the Right to Counsel, 98 W. Va. L. R e v . 863, 912- 
15 (1996) (describing the elimination of funding for the resource centers).



2

competent counsel to indigent prisoners for capital state post­
conviction proceedings?

Ten years ago, this Court considered this question in Murray 
v. Giarratano, and, in a 5-4 decision, held narrowly that the 
Constitution did not require the states to provide counsel.3 Justice 
Kennedy, a member of the majority, wrote that his vote rested in 
part on the fact that Virginia provided by statute for the appointment 
of counsel in state post-conviction proceedings and that no inmate 
in that state had been left to negotiate those waters without legal 
assistance 4 The four dissenting Justices concluded that because of 
the complexity of the capital post-conviction process, the limited 
reading and writing skills of many condemned inmates, and the fact 
that certain claims raised in such proceedings require investigation 
and the presentation of evidence, the Constitution indeed requires 
the provision of counsel in such proceedings.5

In the decade since Giarratano, changes to post-conviction 
practice mandated by the Court, Congress, and many states 
including Georgia have transformed this remedy for wrongful 
incarceration. Today, state and federal remedies operate more 
swiftly than before, are governed by law considerably more 
complicated than a decade ago, and seldom tolerate mistakes, even 
those made in good faith. Prisoners must now bring their cases to 
the state and federal courts more promptly, include in the initial 
petition every possible meritorious claim, and support each with all 
relevant facts. Much more so than a decade ago, any failure to 
timely present both the claim and the supporting facts, regardless of

3 492 U.S. 1, 11 (1989).

4 Id. at 14.

5 Id. at 19,27.



3

the merit of the claim, will result in the claim not being heard in 
either state or federal proceedings. Due process requires the 
provision of counsel in this newly accelerated, more final, more 
rigid capital post-conviction review system.

In this case, Exzavious Gibson, an indigent, mentally impaired, 
African-American condemned man in Georgia, asks that the Court 
revisit this question. Unlike Virginia, and now every other state that 
utilizes the death penalty, Georgia makes no provision for the 
appointment of competent counsel to its indigent condemned 
persons for post-conviction proceedings. Consequently, Mr. Gibson 
was forced to represent himself at his state post-conviction hearing. 
The record leaves no room to doubt his patently inadequate 
performance in a role for which he had neither relevant training nor 
experience.

We urge the Court to grant review here because significant 
changes in the law governing post-convictions proceedings compel 
reconsideration of Murray v. Giarratano. During the past decade, 
federal and state habeas law has become more complex, and it has 
become virtually impossible for imprisoned, often illiterate and 
mentally impaired individuals like Gibson to master and comply 
with the rules governing post-conviction review. Moreover, these 
changes have led fewer attorneys to volunteer to represent the 
condemned in these proceedings. Our experience in post-conviction 
cases from Georgia during this time shows that (1) more often than 
not, harmful constitutional errors mar state trials, (2) these errors 
are not corrected on direct review, and (3) often the merit of these 
claims are demonstrated in post-conviction proceedings only after 
considerable investigation and record supplementation, essential 
tasks that cannot be accomplished from a death row cell.



4

ARGUMENT

I. The New Habeas Landscape is More Complex, More 
Accelerated and Far Less Tolerant of Mistakes,
However Technical.

When this Court decided Giarratano, several Justices noted 
that capital post-conviction procedure was already complicated and 
well beyond the ability of most condemned inmates to navigate 
effectively without the aid of counsel. If the “Court’s death penalty 
jurisprudence unquestionably [was] difficult for a trained lawyer to 
master,”5 then, as Justice Kennedy’s concurrence noted, its 
“complexity... [made] it unlikely that capital defendants [would] be 
able to file successful petitions for collateral relief without the 
assistance of persons learned in the law.”6 7

Not long thereafter, the Court squarely recognized as much. In 
McFarland v. Scott, the Court held that the complexity of the 
federal habeas process could require the appointment of counsel for 
indigent capital prisoners even before a petition is filed.8 McFarland 
had been convicted of capital murder and had repeatedly filed 
unsuccessful requests to stay his execution date in state court to 
allow time to locate volunteer counsel to represent him in post­
conviction appeals.9 The state court refused to appoint counsel, and 
McFarland’s skeletal pro se motion in federal district court seeking 
a stay of execution and the appointment of counsel to prepare a

6 Giarratano, 492 U.S. at 27 (Stevens, J., dissenting).

1 Id. at 14 (joined by O ’Connor, J., concurring in the judgment); see Murray 
v. Carrier, A ll  U.S. 478, 496 (1986) (federal habeas review is a “procedural 
maze of enormous complexity.”) (Stevens, J., concurring).

8 512 U.S. 849, 858 (1994).

9 Id. at 851-52.



5

habeas petition was denied.10 Reversing the Fifth Circuit, the Court 
adopted the reasoning of Justice Kennedy’s Giarratano 
concurrence and held that “[a]n attorney’s assistance prior to the 
filing of a capital defendant’s habeas corpus petition is crucial,” 
because “[t]he complexity of our jurisprudence in this area ... 
makes it unlikely that capital defendants will be able to file 
successful petitions for collateral relief without the assistance of 
persons learned in the law.”11 Mindful of the exceedingly intricate 
habeas jurisprudence and strict default rules, six Justices 
acknowledged that “[requiring an indigent capital petitioner to 
proceed without counsel in order to obtain counsel . . . would 
expose him to the substantial risk that his habeas claims never 
would be heard on the merits.”12

As the McFarland Court observed, since 1989 the system has 
grown considerably more difficult for attorneys — much less 
indigent capital prisoners on their own — to navigate effectively. As 
we show below, during the last decade several decisions from this 
Court as well as Congressional amendments to federal habeas law, 
have reconfigured the post-conviction remedy so that it works 
faster, is more complicated, is more final, and is less tolerant of 
litigants’ uninformed mistakes and errors on even highly technical 
matters. Thus, while the need for counsel to ensure even-handed 
administration of justice was indeed strong in 1989, it is 
overwhelming today.

10 Id. at 852-53.

11 Id. at 855-56, citing Giarratano, 492 U.S. at 14 (Kennedy, J., concurring).

12McFarland, 512 U.S. at 856.



6

A. Several decisions since 1989 have made this process 
more complicated and less comprehensible fo r  pro se 
applicants.

Since considering this issue in Giarratano, the Court has 
significantly changed the habeas remedy. On each occasion, it has 
replaced rules that were generally tolerant of negligent mistakes 
made by prisoners and their counsel with rules that foreclose relief 
except in very limited circumstances. The collective effect of these 
changes has transformed habeas from a flexible process to one 
governed by strict procedural rules, and thus requires the Court to 
make one further change: to hold that due process requires the 
provision of counsel services in capital post-conviction proceedings.

For example, in Coleman v. Thompson, a case in which 
volunteer counsel inadvertently filed a state habeas appeal three 
days late, the Court held that subsequent federal review was 
foreclosed because the judgment dismissing the state habeas appeal 
as untimely constituted adequate and independent state grounds.13 
This rule replaced a more flexible standard that presumed federal 
merits review remained available absent clear evidence that the 
prisoner had deliberately bypassed the appeal.14 In this same vein, 
the Court recently announced in O'Sullivan v. Boerckel that a 
similar default rule applies to state discretionary appeals where a 
prisoner fails to include all claims she wishes to present in federal 
habeas proceedings.15 If competent attorneys occasionally forfeit 
claims by failing timely to meet and satisfy state procedural rules,

13 501 U.S. 722(1991).

u Fqy v. Noia, 372 U.S. 391 (1963).

15 67 U.S.L.W. 4389 (June 7, 1999).



7

indigent pro se prisoners are even more likely to run afoul of them.16 17 18

One year after Coleman, the Court in McCleskey v. Zant again 
replaced a more forgiving standard with a strict default rule, this 
time barring the consideration of claims presented for the first time 
in second or subsequent federal habeas petitions.1' McCleskey 
claimed in his initial state habeas petition that the state's use at his 
trial of conversations with a jailhouse informant violated his Sixth 
Amendment rights under Massiah v. United States™ but did not 
repeat that claim in his initial federal habeas petition because he 
lacked evidence to prove it.19 One month before filing his second 
federal habeas petition, McCleskey received previously undisclosed 
state documents which strongly supported his claim.20 The District 
Court held extensive hearings and granted relief.21 However, this 
Court held that the second petition was an “abuse of the writ” that 
precluded consideration on the merits.22 In so doing, the Court 
rejected its prior “deliberate abandonment” standard for a more 
stringent test requiring petitioners to show “cause and prejudice” for

16 See, e.g., Full-wood v. Sivley, -  S.E.2d 1999 WL 343724 (Ga. 1999) 
(pro se prisoner’s timely filing ofnotice of appeal from adverse state habeas rule 
did not timely preserve right to appeal as state law also requires timely filing of 
application for certificate of probable cause).

17 499 U.S. 467 (1991).

18 377 U.S. 201 (1964).

19 499 U.S. at 472-73.

20 Id. at 474.

21 Id. at 475-76.

22 Id. at 497-503.



8

“inexcusable neglect” in failing to include the claim in initial federal 
habeas petitions.23

McCleskey's lesson for habeas petitioners, as Justice O’Connor 
later warned, is that “the Court’s reformed waiver and abuse of the 
writ doctrines make it especially important that the first petition 
adequately set forth all of a state prisoner’s colorable grounds for 
relief.”24 In other words, petitioners must timely and adequately 
plead specific federal constitutional violations in the initial state 
habeas proceedings to preserve and exhaust them for federal 
review.25

The Court has since extended the reasoning of Coleman and 
McCleskey to bar in federal habeas the introduction of facts that

n  Id. at 490.

24 McFarland, 512 U.S. at 860 (O’Connor, J., concurring in the judgment 
and concurring in part) (emphasis added).

25 See Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam) (to exhaust 
state remedies, petitioners must “fairly presen[t]” federal claims to state courts 
to give states the “opportunity to pass upon and correct” violations of its 
prisoners’ constitutional rights) (citations omitted); Myre v. Iowa, 53 F.3d 199, 
200 (8th Cir. 1995) (finding federal claim barred in state habeas because 
petitioners must “refer to ‘a specific federal constitutional right, a particular 
constitutional provision, a federal constitutional case, or a state case raising a 
pertinent federal constitutional issue’ in a claim before the state courts.”) 
(citations omitted); Brown v. Vasquez, 952 F.2d 1164,1166-68 (9th Cir.), cert, 
denied, 503 U.S. 1011 (1992) (underMcCleskey, habeas petitioners have the 
“substantial burden” of “asserting] all possible violations of [their] 
constitutional rights in his initial application or run the risk of losing what might 
be a viable claim”); see also McDougald v. Lockhart, 942 F.2d 508, 510 (8th 
Cir. 1991) (“Explicit citation to the Constitution or to a federal case is necessary 
for fair presentation of a constitutional claim m state court”).



9

were not timely presented in state post-conviction proceedings.26 In 
Keeney v. Tamayo-Reyes, the Court held that state habeas counsel ’ s 
negligence did not constitute cause excusing the failure to develop 
critical facts supporting the claim that petitioner did not understand 
the mens rea element of his nolo contendere plea due to an 
interpreter’s faulty translation.

WTiile these decisions are intended to preserve and support the 
dignity of the States’ judicial branches, they may substantially 
increase the risk of erroneous conviction and sentence, including in 
capital cases. Keeney, for example, has significantly elevated the 
importance of finding and presenting all relevant facts m the first 
state post-conviction proceedings. In the absence of the guiding 
hand of counsel and access to investigative resources, indigent 
petitioners — like Gibson — appearing pro se will lack the ability to 
develop critical facts and will forfeit review of potentially 
meritorious claims as a result.27 Fact-intensive claims that often 
require extensive prefiling investigation, such as Brady and 
Strickland violations in particular,28 will be impossible for pro se 
petitioners to make out.

In the same year it decided Giarratano, the Court held in 
Teague v. Lane that federal courts could no longer grant relief if 
domg so would require the court to announce or apply a new rule

26 Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992).

27 See, e.g., Giarratano, 492 U.S. at 19 (Stevens, I ,  dissenting); cf. 
McFarland, 512 U.S. at 855 (“The services of investigators and other experts 
may be critical in the preapplication phase of a habeas corpus proceeding, when 
possible claims and their factual bases are researched and identified.”).

28 Brady v. Maryland, 373 U.S. 83 (1963); Strickland v. Washington, 466 
U.S. 668 (1984).



10

of criminal procedure.29 Teague left open the precise definition of 
“new rules.”30 Subsequent cases reveal that the Court has still not 
agreed on the criteria for identifying new rules.31 Teague and its 
progeny present a particularly formidable challenge to indigent pro 
se petitioners, who axe even more unlikely than the Court or counsel 
to know whether a decision rendered after the date of finality is one 
that can or cannot be utilized in post-conviction proceedings 
because it announced or did not announce a new rule.

Finally, the Court adopted a more labor-intensive harmless

29 489 U.S. 298(1989).

30 Id. at 301 (“It is admittedly difficult to determine when a case announces 
a new rule, and we do not attempt to define the spectrum of what may or may not 
constitute a new rule for retroactivity purposes. In general. . .  a case announces 
a new rule when it breaks new ground or imposes a new obligation on the States 
or the Federal Government. . . [A] case announces a new rule if the result was 
not dictated by precedent existing at the time the defendant’s conviction became 
final.”) (citations omitted); Penry v. Lynaugh, 492 U.S. 302 (1989) (applying 
Teague to capital as well as noncapital prisoners).

31 See e.g. O ’Dell v. Netherlands 521 U.S. 151, 156, 170 (1997) (5-4) 
(disagreeing over whether case in question involves a new rule); Lambrix v. 
Singletary, 520 U.S. 518, 528, 541 (1997) (5-4) (same); Saffle v. Parks, 494 
U.S. 484, 488 (1990) (5-4) (“[I]t is ... difficult ... to determine whether we 
announce a new rule when a decision extends the reasoning of our prior cases.”); 
Butler v. McKellar, 494 U.S. 407, 418 (1990) (5-4) (Brennan, J., dissenting) 
(“ [T]he analytical distinction between legal rules ‘prevailing’ at the time of 
conviction and ‘new’ legal rales is far from sharp.”). Compare id. at 415 
(stating that a rule is new if characterized by “significant difference of opinion 
on the part of several lower courts that had considered the question previously”), 
with Graham v. Collins, 506 U.S. 461, 467 (1993) (5-4) (“[UJnless reasonable 
jurists hearing petitioner’s claim at the time his conviction became final ‘would 
have felt compelled by existing precedent’ to rale in his favor, we are barred from 
doing so now.”) (citation omitted).



11

error standard for habeas cases in 1993.32 The Brecht standard 
requires scrutiny of the entire record with the goal of determining 
whether the error had a “substantial and injurious effect or influence 
in determining the jury’s verdict.”33 Although the rule imposes this 
demanding burden on both parties, a thorough review of the record 
is disproportionately burdensome to indigent inmates, who often 
lack access to the full record, to legal materials, and legal training 
to identify error.34

B. Congressional action has accelerated this complex 
process.

Congress' passage in 1996 of the Antiterrorism and Effective 
Death Penalty Act (“AEDPA”) further complicated habeas law.35 
The habeas amendments contained therein set forth a statute of 
limitations (one year for most petitioners after exhaustion of state 
remedies) for habeas actions.36 This provision has shortened the 
time available to investigate and prepare for post-conviction review 
generally,37 and has had the effect of accelerating the state habeas

32 Brechtv. Abrahamson, 507 U.S. 619 (1993).

33 507 U.S. at 622, citing Kotteakos v. United States, 328 U.S. 750, 776 
(1946).

34 See, e.g., Giarratano, 492 U.S. at 27 (Stevens, J., dissenting).

35 Pub. L. 104-132,110 Stat. 1214 (1996), codified as 28 U.S.C.A. §§ 2241- 
55, 2261-66 (West Supp. 1998).

3628 U.S.C.A. § 2244(d) (West Supp. 1998).

37 See, e.g., Fisher v. Johnson, 1999 WL 284954, at *3-4 (5th Cir. 1999) 
(holding pro se petitioner’s federal habeas petition time-barred and that neither 
the fact that he did not receive notice of AEDPA's statute of limitations until 43 
days after its effective date, when a copy of the provision arrived in the prison



12

filing process. The tolling provisions in § 2244(d) are unclear and 
remain so,38 not firmly establishing whether the statute of limitation 
is tolled for a stay of execution,39 while a prefiling petition for 
appointment of counsel is pending,40 while a case is between state 
courts,41 or when petitions for certiorari are pending.42 Yet any 
prisoner mistake during the state habeas filing process likely forfeits 
all later review.

Given the ambiguity of the tolling provisions and the 
inflexibility of the one-year statute of limitations in § 2244(d), 
petitioners are well advised to err on the side of filing federal habeas

library, nor his 17 days spent in psychiatric ward, medicated, without glasses, 
and so rendered legally blind, and denied meaningful access to legal materials, 
held to constitute exception justifying equitable tolling).

38 § 2244(d)(2) provides that “the time during which a properly filed 
application for State post-conviction or other collateral review with respect to the 
pertinent judgment or claim is pending shall not be counted toward any period 
of limitation under this subsection.” For divergent precedent interpreting this 
section and the tolling question, see generally James S. Liebman & Randy Hertz, 
Fe d er a l  H abeas C orpus  Pr a c tic e  and  Pro ced u r e  § 5.1b (3d ed. 1998) 
(“FHCPP”).

39 See generally FHCPP, supra note 38, at § 5. lb  (surveying cases on statute 
of limitations and tolling); see, e.g., Calderon v. United States Dist. Court fo r  
Cent. Dist. Calif., 163 F.3d 530, 541 (9th Cir. 1998) (en banc) (stating that a 
stay of execution motion coupled with McFarland motion for the appointment 
of counsel tolls statute of limitations).

40 See FHCPP at §§ 3.4a, at 150 n. 14, 5.1b, at 242-43 n.90 (surveying cases 
on tolling of statute of limitations for McFarland petitions).

41 See id. at § 5. lb, at 238 n.65 (surveying cases).

42 See id. at 238 n.65, 245 n.102 (surveying cases).



13

claims sooner rather than later in order to preserve the opportunity 
for a hearing on the merits of their claims. However, rushing to file 
federal habeas petitions can carry dire consequences. First, a hastily 
prepared federal habeas petition that does not plead all colorable 
federal claims will forfeit later review under the strict successor rule 
in § 2244(b)(2),43 and might well constitute some type of default 
that bars review m the original petition.44 Second, § 2244(d) 
compels prisoners to file state habeas petitions sooner in order to 
stop the federal clock and properly exhaust claims for federal 
review under § 2254(b)(1).45 Yet hastily filing state habeas claims

43 “A claim presented in a second or successive habeas corpus application 
under section 2254 that was not presented in a prior application shall be 
dismissed unless (A) the applicant shows that the claim relies on a new rule of 
constitutional law, made retroactive to cases on collateral review by the Supreme 
Court, that was previously unavailable; or (B)(i) the factual predicate for the 
claim could not have been discovered previously through the exercise of due 
diligence; and (ii) the facts underlying the claim, if proven and viewed in light 
of the evidence as a whole, would be sufficient to establish by clear and 
convincing evidence that, but for constitutional error, no reasonable factfinder 
would have found the applicant guilty of the underlying offense.” 28 U.S.C.A. 
§ 2244(b)(2) (West. Supp. 1998).

44 The Court has granted review of this question. Slack v. McDaniel, No. 
CV-95-194-DWH (9th Cir. July 7, 1998) (order denying request for certificate 
of probable cause), cert, granted, 67 U.S.L.W. 3511 (U.S. February 22, 1999) 
(No. 98-6322) (Question Presented: Ifa person's petition for habeas corpus under 
28 U.S.C. § 2254 is dismissed for failure to exhaust state remedies and he 
subsequently exhausts his state remedies and refiles the § 2254 petition, are 
claims included within the petition that were not included within the initial § 
2254 filing "second or successive" habeas applications?).

45 “An application for a writ of habeas corpus on behalf of a person in 
custody pursuant to the judgment of a State court shall not be granted unless it 
appears that (A) the applicant has exhausted the remedies available in the courts 
of the state.” 28 U.S.C. § 2254(b) (1). Although federal habeas courts cannot 
entertain claims until they are exhausted in state courts, state claims need not be



14

comes with an even greater price, as in many cases that proceeding 
will be the first and last opportunity to develop facts.46 Claims that 
are not properly investigated or pleaded m state habeas will be 
defaulted under § 2254(e)(2),47 and leave a “barren record”48 that 
will effectively foreclose federal habeas review.49 Some 
constitutional claims such as ineffective assistance of counsel may 
only be raised for the first time on state habeas. Violations of these 
fundamental rights go unremedied when rushed petitions, sloppy 
pleading and inadequate factual development foreclose meaningful

exhausted for federal habeas courts to dismiss a petition on the merits. 28 
U.S.C.A. § 2254(b)(2) (West Supp. 1998).

46 “In a proceeding instituted by an application for a writ of habeas corpus by 
a person in custody pursuant to the judgment of a State court, a determination of 
a factual issue made by a State court shall be presumed to be correct.” 28 
U.S.C.A. § 2254(e)(1) (West Supp. 1998). See,e.g.,O.C.G.A.§ 9-14-49 (“[T]he 
judge of the superior court hearing the case shall make written findings of fact 
and conclusions of law ... [which] shall be recorded as part of the record of the 
case.”).

47 “If the applicant has failed to develop the factual basis of a claim in State 
court proceedings, the court shall not hold an evidentiary hearing on the claim 
unless (A) the claim relies on (i) a new rule of constitutional law, made 
retroactive to cases on collateral review by the Supreme Court, that was 
previously unavailable; or (ii) a factual predicate that could not have been 
previously discovered through the exercise of due diligence; and (B) the facts 
underlying the claim would be sufficient to establish by clear and convincing 
evidence that but for constitutional error, no reasonable factfinder would have 
found the applicant guilty of the underlying offense.” 28 U.S.C.A. § 2254(e)(2) 
(West Supp. 1998).

48 Douglas v. California, 372 U.S. 353, 356 (1963).

49 See Wainwright v. Sykes, 433 U.S. 72 (1977); O.C.G.A. § 9-14-48(d).



15

state habeas review,50 a reality with particularly dire consequences 
for indigent capital petitioners compelled to appear pro se.

Congress itself recognized the need to appoint counsel in 
federal habeas capital cases,51 and provided that states could receive 
even more expedited federal review if competent counsel services 
are provided in state post-conviction proceedings. However, while 
every state that uses capital punishment other than Georgia makes 
some provision for counsel in state post-conviction proceedings, no 
state known to us has yet established legal assistance programs 
sufficient to trigger this special status. Moreover, as the American 
Bar Association points out, the complexity of the new federal 
habeas rules have ironically functioned to deter attorneys from 
taking on capital cases.

C. Georgia, like other states, has acted to speed up its post­
conviction review system.

In the wake of these significant changes to the federal habeas

50 See, e.g., Breardv. Greene, 118 S.Ct. 1352,1353-54 (1998) (per curiam) 
(holding that § 2254(e)(2) applies to case and bars federal hearing because 
petitioner “failfed] to raise the claim in the state courts” and never sought state 
court hearing to establish facts essential for prevailing on claim); Hines v. 
Sensing, 1998 WL 603397, at *1 (E.D. La. Sept. 9, 1998) (stating that § 
2254(e)(2) bars federal hearing on claim of ineffective assistance m failing to 
investigate because petitioner could have, but did not, support request for state 
court hearing with “[a]ffidavits, exhibits [or] other materials . . .  to make an 
initial showing of the circumstances he believes should have been investigated”); 
Royal v. Netherlcmd, 4 F. Supp. 2d 540, 554 (E.D. Va. 1998) (stating that § 
2254(e)(2) bars hearing on claim that trial counsel was ineffective in failing to 
interview prosecution witnesses, because “petitioner did not take or seek the 
opportunity to develop . . .  the factual basis of the claim in . . . state court”).

51 28 U.S.C.A. § 2263(a) (West Supp. 1998); cf. 21 U.S.C. § 848(q)(4)(B) 
(1996) (providing post-conviction counsel in capital cases for federal habeas 
corpus proceedings).



16

remedy, Georgia has taken no step whatsoever to ensure that its 
post-conviction remedy is more available to identify and correct 
serious harmful violations of the federal constitution. Indeed, in the 
Death Penalty Habeas Corpus Reform Act of 1995, Georgia 
amended its habeas statute to accelerate review. Yet it made no 
provision whatsoever for the provision of counsel or investigative 
services despite the fact that only very experienced counsel from the 
Attorney General’s Office handle capital cases in post-conviction 
proceedings. These amendments provide that all pretrial habeas 
motions must be filed within 60 days and discovery must be 
completed within 120 days of filing a petition.52 An evidentiary 
hearing must be held within 180 days of the petition’s filing,53 and 
“[f]ailure to meet these requirements will result in the absence of 
any hearing on the merits for the habeas petitioner.”54

Construction of these amendments has been strict. Recently the 
Georgia Supreme Court held that notwithstanding the practical 
reality that the short appeal window would “force [the petitioner] to 
file his application for certificate of probable cause before the 
habeas record has even been prepared,”55 the procedural default for 
failure to meet the strict 30-day timetable for appealing an adverse 
state habeas ruling56 would bar further review of the claims, even

52 Ga. Ct. R.44.

53 Id.

54 Gibson v. Turpin, 513 S.E.2d 186, 197 (Ga. 1999) (Fletcher, P.J., 
dissenting) (emphasis added).

55 Id. at *9 (Sears, J., dissenting).

56 O.C.G.A. § 9-14-52.



17

for indigent pro se petitioners.57 The dissent accused the majority of 
construing the state statute as another “trap for the unwary, a means 
of preventing consideration of the merits that amounted to a blanket 
denial of the Great Writ, in fact, to a suspension of the writ.”58

Indigent pro se state habeas petitioners like Gibson, who lack 
basic education, much less legal training, or even adequate access 
to legal materials,59 cannot reasonably be expected to be able to 
comply with these demanding technical requirements in order to 
present even meritorious claims. In this case, the Warden's 
attorney, a highly expenenced assistant Attorney General, 
specifically warned Mr. Gibson that he “should be aware that this 
is his first [state] habeas corpus proceeding and, if he chooses to file 
another one anything that he doesn’t raise in this one is going to 
probably found to be waived under Georgia law.”60 Gibson, whose 
IQ is 76, was unable to articulate a federal constitutional claim, but 
stated only, “I don’t have an attorney... I don’t waive any rights.”61

Thus, on these several fronts, changes in post-conviction law 
since 1989 have made it virtually impossible for a condemned

57 Fullwoodv. Sivley, -  S.E.2d 1999 WL 343724, at *5 (Ga. 1999).

58 Id. at *6 (Benham, C.J., dissenting).

59 See, e.g., Mark D. Cunningham, and Mark P. Vigen, Without Appointed 
Counsel in Capital Postconviction Proceedings: A Study o f  the Self- 
Representation Competency o f  Mississippi Death Row Inmates, Crxm. Ju st  - 
B e h a v . (forthcoming 1999) (assessing death row inmates’ abilities, relevant 
aptitudes, legal knowledge and psychological ability to represent themselves).

60 Record at 70, Gibson v. Turpin, No. 95-V-648 (Super. Ct. Butts County 
Sept. 12, 1996).

61 Id. at 94-95.



18

inmate, from his or her cell, fairly to plead and prove his entitlement 
to habeas relief. Moreover, while the average state post-conviction 
case required at least 600 hours of legal work in 1989, the time 
necessary today is even greater.62 Yet Georgia provides no counsel 
for capital habeas petitioners.63

II. In Georgia It Is More Likely Than Not That Harmful 
Constitutional Error Mars a Capital Conviction or 
Sentence and Is Not Remedied on Direct Review.

The availability of counsel for capital post-conviction 
proceedings might be of little concern if the harmful errors that 
occur were usually remedied on direct appeal. In Georgia, however, 
the post-conviction reversal rate for capital cases, as the Southern 
Center for Human Rights’ brief points out, is staggering.

In many of these cases, the harmful error would surely not 
have been detected and proven in the absence of volunteer counsel. 
Indeed, as Mississippi's highest court recognized recently:

The reality [is] that indigent death row inmates are simply not 
able, on their own, to competently engage m this type of

62 See Brief of the American Bar Association (ABA) at 34, Giarratano (No. 
88-411); Richard J. Wilson & Robert L. Spangenberg, State Post-Conviction 
Representation o f  Defendants Sentenced to Death, 72 JUDICATURE 331, 336 
(1989); see also Giarratano, 492 U.S. at 27 n.20 (Stevens, J., dissenting) (citing 
1988 ABA study finding that attorneys spent an average o f992 hours and $3696 
on each capital post-conviction proceeding in Virginia) (citation omitted).

63 Wyoming, the only other state that did not provide counsel to capital habeas 
petitioners at the time of Gibson’s habeas hearing, recently amended its laws to 
give all capital inmates the right to counsel in post-conviction proceedings. See 
Gibson, 513 S.E.2d at 198, n.37 (Fletcher, P.J., dissenting), as amended; Fulton 
County Daily Report, June 14, 1999, p. 20, citing SEA 41, 55th Leg., 1999 
Session (Wyo.) (to be codified at Wyo. Stat. Ann. § 7-6-104(c)(ii)(1999)).



19

litigation. Applications for post-conviction relief often raise 
issues which require investigation, analysis and presentation of 
facts outside the appellate record. The inmate is confined, 
unable to investigate, and often without training in the law or 
the mental ability to comprehend the requirements of [state 
habeas law]. The inmate is in effect denied meaningful access 
to the courts by lack of funds for this state-provided remedy.64

In our post-conviction work on capital cases in Georgia 
since Giarratano, we have handled numerous cases where 
extremely prejudicial error marred the trial, and was either not 
raised or remedied on direct appeal. No court would likely ever 
have determined the effect of these errors on the capital convictions 
or sentences had it been left to the pro se petitioner to raise and 
develop these claims.65

For example, inButtrum v. Black, 721F. Supp. 1268 (N.D. 
Ga. 1989), ajffd, 908 F.2d 695 (11th Cir. 1990), five independent, 
harmful violations of the Constitution were determined to have 
deprived the petitioner of a fundamentally fair sentencing 
determination; Ms. Buttrum was wholly unable to identify these 
issues and ably present and argue them to a court of law.

In Roberts v. Zant, No. 3:92-CV-28-GET (N.D. Ga. 1992), 
the district court found that the trial court's rushing the case to trial 
a mere six weeks after the appointment of inexperienced counsel 
showed an egregious violation of due process and denied petitioner 
the right to effective representation. Both claims were heavily 
dependent upon the testimony of nearly 20 witnesses we presented

64 Jackson v. State, 1999 WL 33904, at *3 (Miss. 1999) (not yet released for 
publication).

65 The amicus curiae brief of the Southern Center for Human Rights discusses 
these cases in detail.



20

at a state habeas corpus hearing. It would have been impossible for 
Mr. Roberts to have assembled any of this evidence from his death 
row prison cell.

InHillv. Turpin, 135 F.3d 1411 (11th Cir. 1998), the court 
granted full habeas relief on a prosecution misconduct claim, and 
thus did not have to reach the merits of several other meritorious 
claims — including one fact-intensive Swain v. Alabama, 380 U.S. 
202 (1965) claim — that were based upon extensive evidence we 
presented in state post-conviction proceedings.

AndinRos,? v. Kemp, 393 S.E.2d 244 (Ga. 1990), the state 
supreme court granted full habeas relief on an ineffective assistance 
of counsel claim. Mr. Ross, an African-American male with a long 
history of serious mental illness, was represented at trial by the 
former Imperial Wizard of the Georgia KKK, who conducted no 
pretrial investigation of any sort. During state habeas hearings, we 
presented numerous lay and expert witnesses whose testimony 
proved compelling enough for the state supreme court to grant full 
relief. Throughout, Mr. Ross was barely competent to proceed.

These experiences have left us with no doubt whatsoever 
that if the capital post-conviction process is to function at all, both 
the state and the indigent condemned must have access to 
competent legal services.

CONCLUSION

There is no way to know whether constitutional error 
deprived Mr. Gibson of a fundamentally fair trial. Surely the State 
of Georgia is in no position to assure the Court that this case is free 
of harmful error, or that we can all be sure that any such error 
would have been detected and remedied on direct appeal. It is time 
for the Court to revisit this issue, and to hold that a right to counsel 
exists for the pursuit of capital state post-conviction proceedings.



Dated: August 6, 1999 Respectfully Submitted,

* Counsel of Record

Elaine R. Jones 
Director-Counsel

George H. Kendall*
Laura E. Hankins 
NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND, INC. 
99 Hudson St., 16th Floor 
New York, NY 10013 
(212) 965-2200



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