Transcript

IN THE SUPREME COURT OF THE UNITED STATES

RONALD D. CASTILLE, etc., et al. Petitioners v. MICHAEL PEOPLES

No. 87-1602

December 6, 1988

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 12:59 o'clock p.m.

APPEARANCES:

GAELE M. BARTHOLD, ESQ., Deputy District Attorney of Philadelphia County, Philadelphia, Pennsylvania; on behalf of the Petitioners.

ROBERT E. WELSH, JR., ESQ., Philadelphia, Pennsylvania; on behalf of the Respondent.

PROCEEDINGS

12:59 p.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument now in No. 87-1602, Ronald D. Castille v. Michael Peoples.

Ms. Barthold, you may proceed whenever you're ready.

ORAL ARGUMENT OF GAELE M. BARTHOLD ON BEHALF OF THE PETITIONERS

MS. BARTHOLD: Thank you. Mr. Chief Justice, and may it please the Court.

State court prisoners seeking federal habeas corpus relief are generally required first to exhaust state court remedies. Instantly, the Third Circuit found that Prisoner Peoples' mere presentation of his claims to the highest state court was sufficient. It did so although those claims were presented in violation of state court practices and procedures with the result that there was no reasonable likelihood that they would or could have been considered on their merits.

This Court should reverse that decision and make clear that such token presentation does not comport with the comity-based requirement of 28 U.S.C. 2254. Prisoners like Prisoner Peoples should be required Instead to pursue the state collateral review remedies which here exist.

Prisoner Peoples is now serving a 15 to 30 year sentence as a consequence of his participation in a particularly vicious robbery in which the victim was set on fire. Post-verdict, he unsuccessfully filed trial level post-verdict motions, an intermediate superior court appellate court appeal, a pro se pleading requesting the appointment of counsel and the grant of discretionary Supreme Court review, and finally after counsel was appointed in accordance with his request, a counsel petitioned for discretionary Pennsylvania Supreme Court review.

He then filed the instant habeas corpus raising five separate claims. This was dismissed on exhaustion grounds because it was determined that his claims had not been presented to the highest state court in a posture reasonably permitting their consideration.

On appeal, Prisoner Peoples claimed that the mere presentation of his claims to the highest state court was sufficient. In so doing, he ignored prior procedural defaults and the fact that as a matter of state court practice, Pennsylvania Supreme Court practice, his pro se petition would not be considered on the merits once counsel was appointed in accordance with his request.

He also erroneously assumed that ineffectiveness claims raised for the first time in a discretionary review petition with no underlying state court fact-finding or substantiating record could be considered on their merits.

The Third Circuit, based upon its prior panel decision in Chaussard v. Fulcomer, found exhaustion because defendant's claims, Petitioner Prisoner Peoples' claims, had all been presented to the State Supreme Court in some form or fashion. In so doing, the Third Circuit did not show deference to state court practices and procedures and what I believe should be the essential presumption that state courts follow those practices and procedures.

QUESTION: Ms. Barthold, may I inquire of you? If a claim had been preserved at trial and was properly raised before the Superior Court and so forth, and then raised in a pro se petition in Pennsylvania for allocatur, which asked for substantive relief and the appointment of counsel, and if the Supreme Court in Pennsylvania simply denied that petition, would the claim be exhausted in your view?

MS. BARTHOLD: Yes, I believe it would be because I think that is unlikely to happen in Pennsylvania because it's Pennsylvania practice, as this Court recalls from Pennsylvania v. Finley, to liberally appoint counsel when counsel is requested. So, here once the prisoner filed a pro se petition raising substantive claims and requesting counsel, the State Supreme Court granted the request for counsel and the order which they filed, which is found at page 61 of the appendix, is I think very clear --

QUESTION: Well, I think what troubles me is if your answer to my question is yes, is that because the court had the opportunity to address the claim?

MS. BARTHOLD: Yes, if they chose not to appoint counsel. I mean, the point I think is that state courts have practices and procedures which, if not always explicit or formalized, nevertheless control the way in which they do business. And under the hypothetical you have given me which is, as I say, unlikely to happen in Pennsylvania, everything is properly preserved. There is no prior procedural default, and it comes before the court in a form and fashion so that it can come in in the pro se petition. I mean, I think you're assuming we're not having any belatedly raised ineffectiveness claims that don't --

QUESTION: Right.

MS. BARTHOLD: -- have substantiating records. We don't have any of those sorts of problems.

So, in that circumstance, if they simply denied the pro se petition, yes, I would have to say there was a fair opportunity. But I must also say that will not happen in Pennsylvania because you have here a pro se petition saying I've got substantive claims and I want the appointment of counsel, and the court liberally grants counsel, makes clear that all substantive claims have to be raised in the subsequent counsel's allocatur, and that is precisely what happened here.

QUESTION: So, if -- if the Supreme Court of Pennsylvania denies the request for appointment of counsel in that case, that means, in effect, they say you can get no relief on the merits.

MS. BARTHOLD: Yes. I -- I think I would have to concede that although, as I say, that's not what happened here, and I think it's not what is likely to happen. And it also assumes that everything is properly raised below.

QUESTION: Are there any Pennsylvania cases or rules or statutes that outline the procedure you say the Pennsylvania Supreme Court follows in these cases?

MS. BARTHOLD: There is not any statute or rule of procedure with respect to the appointment of counsel other than practice. And when one looks at the record --

QUESTION: Are there reported cases describing the procedure?

MS. BARTHOLD: No, not that I am aware of. But there is, as I say, an order which was entered in this case at page 61 at the Joint Appendix in which it is very clear that in appointing counsel, the court is permitting the filing of an allocatur at that point and that all claims have to be raised in that counsel's allocatur. I believe that is quite clear.

And, of course, the issue of whether the pro se pleadings should be considered is only one of the issues in this case. When the Third Circuit granted relief and ordered a hearing on the merits, they ignored the fact that as a matter of state court practice and procedure, pro se pleadings are not considered in the posture this one was in because counsel was appointed. They also ignored prior procedural default with respect to many of the claims, and they also I think erroneously assumed that belatedly raised ineffectiveness claims without any sort of fact-finding or substantiating record can magically be decided on their merits on -- in a petition for discretionary review.

The Third Circuit I think has adopted an extreme minority view. There is one case in the Ninth Circuit, Turner v. Compoy, in which certiorari is now pending, in which the Ninth Circuit acted similarly in an ineffectiveness context. But the -- most of the circuits that have spoken on this issue either presume that state courts follow their practices and procedures or at the very least will look at the state law, will look at the history of the case and make an individualized determination as to whether there was a fair opportunity to consider and correct the alleged violation.

There are I think some very unfortunate effects from the Third Circuit's approach. You have an approach which condones forum shopping which invites criminal defendants to hold back on their claims as they proceed through the state court system, and then when they get to discretionary review in the state court system to magically raise this claim for the first time when it cannot be considered because of prior procedural defaults and other defects and then assure that they can get into federal court, I think this is unwise.

I think this breeds disrespect for state court practices and procedures.

I think it permits cases to come prematurely into the federal system without state court fact-finding, without state court evidentiary hearings. And that is precisely what will happen in this case if the Third Circuit is not reversed.

This increases the federal caseload.

It's I think destructive to the principles of comity and, in fact, carves out an exception to the comity-based exhaustion requirement. In Duckworth v. Serrano, this Court made clear that you would not carve out exceptions to the exhaustion requirement even in cases of clear constitutional violations.

And I think the case here is in many ways most, analogous to the situations which this Court considered in Ex parte Hawk and in Pitchess v. Davis. In those cases, the Court made clear that the mere presentation of claims to a high state court, either as an original action or as in the form of an extraordinary writ, was not sufficient to comply with the exhaustion doctrine. And the Court did so because such token, irregular presentation did not constitute a fair opportunity to consider the claims on the merits as a matter of state law.

QUESTION: May I -- may I interrupt? I may have missed something, but I just want to be sure I have it correct in my mind.

In this case the -- after the lawyer was appointed, he or she asserted some claims but not others.

MS. BARTHOLD: Yes.

QUESTION: And the Supreme Court just entered a one-line order denying everything. Is that right?

MS. BARTHOLD: That is correct.

QUESTION: Now, supposing the Petitioner just wanted to pursue the claims that the lawyer had put in the -- in his or her petition, would those claims have been exhausted?

MS. BARTHOLD: Oh, yes.

QUESTION: They would have been.

MS. BARTHOLD: Oh, yes, assuming they were otherwise property before the court --

QUESTION: Right.

MS. BARTHOLD: -- and that we don't have any prior procedural defaults or any problems with a lack of substantiating records.

QUESTION: So, is it -- is it correct that the practical effect of the rule that you ask us to adopt is that the lawyer in this situation should always include every claim in the petition of the Supreme Court to be sure there will be complete exhaustion?

It seemed to me here there might be merit in the lawyer just selecting those that seem to have the most merit and almost saying, well, I'm pretty sure the others are going to be denied, so I didn't include those.

MS. BARTHOLD: Well, of course, and that's part of counsel's job to make reasoned determinations as to what claims should be raised in an appellate forum.

QUESTION: But the -- but the lawyer has to pay a price for doing that because having done that, it means that -- that the -- the case won't go over to federal court until the prisoner refiles with respect to those claims. Is that right?

MS. BARTHOLD: Well, presumably -- I'm not sure it's that the lawyer pays a price.

QUESTION: Well, the prisoner.

MS. BARTHOLD: Presumably the litigant consults with his attorney and discusses what claims should be raised.

QUESTION: And then the lawyer decides, well, I don't think those three claims have any merit at all. I think it will hurt your case for me to put them. So, I just want to put in two, which I suppose the lawyer could do. But -- but that would mean that there would have to be another round of proceedings on those other three claims.

MS. BARTHOLD: It could happen. Of course, this Court has made very clear that lawyers should exercise their professional skills in determining what claims to raise after they consult with their clients. And there is a value in requiring these claims then to go through state collateral review procedures.

QUESTION: Well, is there if -- say you presume the lawyer knows what -- he's a good lawyer. If the lawyer thinks there is absolutely no merit to those three claims, wouldn't it maybe expedite things to just say, well, we'll presume that -- that there was exhaustion in the sense that the lawyer thought they were not worthwhile and the Petitioner had an opportunity to put them before the court, and we'll get the whole matter disposed of more promptly by just going ahead with them.

MS. BARTHOLD: Well, with all due respect, I think a question of simply expediting things is -- is not what is crucial and critical here.

QUESTION: As long as the state has a fair opportunity. But part -- what I'm suggesting is that part of the protection of the state is the lawyer's own judgment that there's really no merit to these three. And I guess in this case they're fairly weak claims, aren't they?

MS. BARTHOLD: Oh, they absolutely are fairly weak claims, but the point is --

QUESTION: So, we're going through a lot of extra procedure. It's just going to spin a lot of wheels is what I'm wondering about.

MS. BARTHOLD: Well, the point is, though, I think, Justice Stevens, that state courts promulgate procedures in terms of how they are going to do business for good reason. I mean, the entire purpose of appointing counsel was to allow the claims, this prisoner's claims, to work their way through the state court system in an orderly and clear manner. And this prisoner was the party who said I do not want to proceed pro se. I want the advantage of a lawyer. And Pennsylvania is liberal in appointing counsel when criminal defendants ask for it.

I mean, it simply seems to me he cannot have it both ways. He can proceed pro se if he wants to, but if he wants to get counsel, he has got to get counsel under the terms and conditions in which the Pennsylvania Supreme Court will give him counsel, which is to say if you want counsel, we're going to proceed in an orderly way. And the order at page 61a of the appendix makes that very clear I think.

I mean, I'm fearful of the devastating effects you have in terms of damage to the comity requirement, damage to state court practices and procedures and an increase in the federal caseload and cases prematurely coming in if you accept this sort of helter-skelter approach.

Now, we have specified in our brief at very great length the defects which we see with respect to each of the prisoner's five claims. I am not going to belabor them now. I anticipate that what the prisoner's counsel is going to attempt to do is to turn this into a simple state law question and try to persuade this Court that each and every one of his claims were properly raised to the Pennsylvania Supreme Court. So, what are we all doing here today?

I think it's very clear what we're all doing here today. We are looking at cases coming out of the Third Circuit and the Ninth Circuit that have were presentation rules, token presentation rules, which in fact encourage criminal defendants not to proceed in an orderly fashion in the state courts. And here the difficulties -- the deficiencies include, as I've indicated, prior procedural defaults, the fact that ineffectiveness claims were raised late in the game and could not be considered on their merits by the Pennsylvania Supreme Court in the form and fashion in which they arrived there --

QUESTION: Let me ask you one other question. If you concede that the two claims that were in the counsel's petition would be considered exhaustion, what if the petition that counsel had added in his petition or brief, or whatever it was called, a paragraph at the end saying petitioner has also raised these three other claims which are not being discussed in this paper?

MS. BARTHOLD: Let me just backtrack a minute. What I conceded is that any claims in the counsel's petition which were otherwise properly --

QUESTION: Yes.

MS. BARTHOLD: -- preserved, et cetera, et cetera --

QUESTION: Of course, yes.

MS. BARTHOLD: -- would have been exhausted. And I'm not conceding that any claims in the counsel's petition here were, in fact, exhausted because there were other difficulties with those claims. Either they were different claims or they rested on a different constitutional analysis.

But if he referenced those claims and made clear that he was not putting them in front of the Supreme Court, then I think they were not -- would not be exhausted.

QUESTION: But he did tell the court that the petitioner had filed a pro se document trying to put them before the Supreme Court. So, just by reading the counsel's submission, the court would know those claims had all been -- at least been raised.

MS. BARTHOLD: The --

QUESTION: That would not be enough either.

MS. BARTHOLD: The -- no, absolutely not, because the court -- it is very clear -- treated that pro se pleading as a request for counsel, granted counsel and said we are appointing counsel for you and counsel must file within 30 days of that appointment his allocatur petition. They didn't say another allocatur petition that we'll also consider. They made it very clear that if you want counsel, you're going to proceed in an orderly fashion like every other litigant in that court.

QUESTION: Then what would have been counsel's next step or petitioner -- the petitioner's next step under Pennsylvania law? To file a petition with the Supreme Court of Pennsylvania? The Supreme Court has now appointed -- the Supreme Court of Pennsylvania has now appointed counsel for him when he -- because of what he filed there. What -- what does counsel now do under your view of Pennsylvania law?

MS. BARTHOLD: Counsel, after being appointed, filed a counsel discretionary review petition in the State Supreme Court, and that was denied on a naked order. And now his remedy is to proceed under the state collateral review statute which will permit him to raise and litigate in the state forum all of the various arguments that he has not properly put before the state courts already.

QUESTION: And he has the same counsel on that collateral review?

MS. BARTHOLD: No. He would file a pro se PCHA, actually now a PCRA, and as the Court recalls from Pennsylvania v. Finley, Pennsylvania practice is quite literal with regard to the appointment of counsel for first state collateral review petitions. So, he will have new counsel appointed for him if he wishes it.

QUESTION: Well, this wouldn't be a new petition. It would be a second state petition presumably to raise these claims.

MS. BARTHOLD: This would be the first state collateral review petition.

QUESTION: I'm not quite certain about the procedural posture of the allocatur. This was an application to the Supreme Court of Pennsylvania. Was it in the course of direct review of the convict?

MS. BARTHOLD: Yes. Yes. And allocatur in Pennsylvania, Pennsylvania discretionary review, is almost identical to the grant of certiorari by this Court. It is only for cases of exceptional importance and to resolve conflicts and so on and so forth. It is in many ways an extraordinary exercise of jurisdiction.

I -- I think one thing I should point out --

QUESTION: You know, given that, I'm surprised that you concede there would be exhaustion as to the--even the claims that the lawyer raised because I should think the Pennsylvania Supreme Court might well say, well, there might be merit in it, but let's let it go to collateral review where a trial judge can take a first look at it.

MS. BARTHOLD: Well, of course, the entire premise underlying the exhaustion doctrine in comity is that the state courts have a fair opportunity to consider and correct alleged violations. So if, for example, a claim was properly preserved in the trial court and in the Pennsylvania Superior Court, he then has to go forward to the State Supreme Court to give the state courts a fair opportunity.

QUESTION: Yes, but if they have the --

MS. BARTHOLD: But they don't have to decide it on the merits.

QUESTION: Well, that's the same kind of authority we have on our certiorari docket. We often deny cert on something we think can be better presented in collateral review. And I would think -- I would think at least arguably that claim isn't even exhausted. I suppose the lawyer could on collateral review reassert the claims that had been presented to the Supreme Court and say I'm afraid they just denied it for discretionary reasons. I'd like to have the trial judge look at it.

MS. BARTHOLD: Yes, he can because those claims are not under Pennsylvania law, Commonwealth v. Tarver, finally litigated claims. So, they can go back in state collateral review if they wish to.

QUESTION: See, I'm -- I'm puzzled that you concede those are exhausted.

MS. BARTHOLD: Well, I'm conceding they're exhausted if they're otherwise properly before the State Supreme Court. If they're properly preserved, if they have substantiating records, then all that the prisoner has to do is give the state court a fair opportunity to pass upon those claims. But the problem here is the claims don't give the State Supreme Court a fair opportunity because there are prior procedural defaults. There are ineffectiveness claims that don't have substantiating record, and also because as a matter of state court practice and procedure, the Supreme Court would not consider the pro se pleading once it granted counsel.

Now, I should note I think that this case raises in the exhaustion context an issue similar to that already before the Court this term in the procedural default, adequate and independent state basis context in Harris v. Reed which was argued in October. And in Harris v. Reed, of course, this Court is being asked to apply a plain statement rule of Michigan v. Lorg and, in fact, conclude that unless the state appellate court specifically says it's denying something on procedural or default grounds, then you've got to assume it's a decision on the merits.

I would point out that while there was an opinion filed in Harris, that is not always the case in all intermediate courts in all states in all cases. Here we go one step further. I mean, we're in the exhaustion context, so we're only talking about the deferral of access to the federal courts. But you have claims being raised for the first time in a petition for discretionary review which there is no reasonable opportunity for the Pennsylvania Supreme Court to make clear the basis of its reasoning.

QUESTION: If you follow the logic of our Pitchess decision, it seems to me you probably would respond differently to Justice Stevens' earlier question where we said there that the denial of a -- of an original writ in the appellate court, a writ of prohibition, was not to be considered an exhaustion of the claim. But then isn't he right that even if the -- the denial of review by the Supreme Court of Pennsylvania, no matter what the status of the claim, can't be regarded as exhaustion if there's collateral review available?

MS. BARTHOLD: Well, I -- I think that is perhaps going too far. I mean, I -- I am willing to concede -- perhaps it's unwisely. But I am willing to concede if the claim is otherwise properly before the state courts and it has gone through the system in an orderly way -- I mean, we're not trying to make life unbearable for criminal defendants. That is not our --

QUESTION: Well, of course, it's not up to you really. I mean, it's up to the federal law regarding habeas corpus. And our case of Pitchess interpreted the federal habeas statute and its requirement of exhaustion.

MS. BARTHOLD: It did, and as I understand that decision -- and perhaps I -- I misunderstand it -- what you said is there was not a fair opportunity as a matter of state law for the Court to consider the claim because it came before it in such an unusual posture although discretionary review in Pennsylvania is extraordinary in the sense that it's like this Court's exercise of extraordinary jurisdiction. If the claim otherwise comes before it in a -- in a proper fashion, I had not until this point -- perhaps I could change my mind -- thought that I should argue that criminal defendants should go back and proceed under PCHA under collateral review.

I mean, we just simply want to be sure that the state courts have a full and fair opportunity to consider claims.

QUESTION: Well, I -- I thought you -- I thought you were pretty strongly indicating that the State Supreme Court, when the lawyer filed the petition, actually passed on the merits.

MS. BARTHOLD: They have the opportunity to pass on the merits.

QUESTION: Well, I know but they -- they appointed counsel to present these claims to it.

MS. BARTHOLD: Yes.

QUESTION: And it seems like a sort of a useless procedure if they weren't going to pass on the merits of these claims. It just wasn't a discretionary denial, was it?

MS. BARTHOLD: We do not know why they denied. It -- probably they denied because of the fact that there were defaults, there were ineffectiveness claims that didn't have substantiating records. They --

QUESTION: Well, what about passing -- just passing on the merits of the --

MS. BARTHOLD: If the claim is properly preserved, we are willing to say that the State Supreme Court and therefore the state courts had a fair opportunity to pass on the merits.

QUESTION: Well, and not only a fair opportunity but they passed on the merits.

MS. BARTHOLD: Yes, but --

QUESTION: Is that the -- is that the law in Pennsylvania that if a Pennsylvania Supreme Court denies discretionary review, which is what I understand happened here, that the Supreme Court of Pennsylvania has passed on the merits?

MS. BARTHOLD: No. It is not a finally litigated claim. It's a matter of state law. In other words, if they simply deny it -- deny discretionary review, it then can be litigated in the state collateral review forum. It's not a finally litigated claim.

QUESTION: Well, to make an analogy to our practice, it's as though we appointed counsel to file a certiorari petition, and the counsel does it and files two or three claims but not some others his client would like him to file, and we deny certiorari. We may or may not have thought there was merit to the claims. Isn't that the same analogy?

MS. BARTHOLD: You may or may not, but --

QUESTION: We had a fair opportunity to take the case and decide it, but we just said cert denied.

MS. BARTHOLD: But the position we suggest to the Court is that --

QUESTION: You --

MS. BARTHOLD: -- if it's unclear, you must presume that the state court followed its practices and procedures including prior procedural defaults. In other words, you don't assume something is on the merits. If there is something defective about the claim or claims, you assume to the contrary. And the reason for that is to the extent that there is any confusion that exists in cases such as this case, it exists because of the mismanagement of the litigants in bringing their claims before the state courts in an orderly fashion.

QUESTION: Justice Stevens is suggesting that it's unreasonable to assume that it's on the merits even when they have been presented in an orderly fashion, just as it's unreasonable to assume that our denial of certiorari has anything to say about the claims.

MS. BARTHOLD: Well, as I say -- and you may be right -- I had not thought of that aspect of saying that you should go through state collateral review even where you go to the -- the State Supreme Court. I mean, perhaps I have conceded too much.

If I might, I would like to reserve the bulk of my time -- what's left for rebuttal, and I would ask the Court to reverse the Third Circuit.

QUESTION: It's not the bulk of your time, but you may reserve whatever is left.

(Laughter.)

MS. BARTHOLD: Thank You.

QUESTION: Mr. Welsh?

ORAL ARGUMENT OF ROBERT E. WELSH, JR. ON BEHALF OF THE RESPONDENT

MR. WELSH: Mr. Chief Justice, and may it please the Court.

I wonder if I might propose the following outline for my presentation. First I'd like to make clear what I think is before this Court and what is not before this Court and make clear that I'm not urging this Court to adopt any sort of mere presentation rule.

I'd next like to address Pennsylvania law and where I think reported decisions support my interpretation as opposed to what Ms. Barthold relies upon which is her expertise which, though extraordinary, I don't think carries the day.

Then I'd like to address federal law in very brief terms with specific reference to Justice Stevens' point.

The Third Circuit in Chaussard may be read to create a mere presentation rule, I must say that I cited Chaussard in my initial brief in the Third Circuit without reading it to establish such a rule because I think such a rule is not in keeping with any of the precedent of this Court. In fact, I don't even think the Third Circuit, with the possible exception of this unreported panel decision in this case, reads Chaussard to create --

QUESTION: You're not defending the panel decision in this case.

MR. WELSH: I am not defending it as read by Ms. Barthold. There is a way I can defend it, Justice White, if you'll bear with me.

I think that in O'Halloran v. Ryan, the Third Circuit made fairly clear in a published opinion that they do not recognize a "mere presentation rule."

I think that what this case comes down to are some very unusual idiosyncracies of Pennsylvania procedure which are unlike anything you have seen both in your careers as federal judges, and those of you who have served on the state bench probably have not seen it either. And unlike Ms. Barthold's position, I do not agree that the untidy record here is due to the "mismanagement" of the litigants because I believe that this untidy record flows directly from what Pennsylvania requires litigants to do in these cases.

Now, if this were a criminal case and -- and a criminal defendant failed to raise a claim in the court of appeals, it would be unlikely that it could be raised here. There may be an escape hatch by way of the plain error rule.

Pennsylvania is one of the most vigorous states in the use of waiver rules. I will not bore this Court with some examples, but they're staggering, and they give lawyers nightmares. But one of the waiver rules, which should not surprise you, is that if you fail to raise something in the Court of Common Pleas, the trial level court, or the Superior Court, and if you later do not raise it in the Supreme Court, if you go back again to the collateral attack route suggested by Ms. Barthold, if you did not raise it on direct appeal, you waived it. So, born of this rule is the implication that if you have a claim of ineffectiveness of counsel and if it was not raised at all prior levels, you must raise it on direct appeal.

In fact, there are a number of cases --

QUESTION: When you -- when you say direct appeal, Mr. Welsh, you mean direct appeal to the Supreme Court of Pennsylvania?

MR. WELSH: That's correct, Mr. Chief Justice. I think that if you look at the cases I cited, none of those cases support Ms. Barthold's assertions. In fact, if you look at those cases -- and I'm referring to Turner, Hubbard and Morin -- in each case there was a significant and conceded default of a claim at some lower level. The claim is, in effect, rejuvenated because it was alleged that the failure to raise it in the lower level was due to the ineffectiveness of counsel.

QUESTION: When I asked you about the appeal, it is not an appeal as a matter of right, is it, from the -- is it the Superior Court or the commonwealth court to the Supreme Court?

MR. WELSH: It depends on the type of case.

QUESTION: In a -- in a case like this.

MR. WELSH: It depends on whether it's a homicide case versus a non-homicide case and when it happened, in essence.

QUESTION: Well --

MR. WELSH: In this case it would not be an appeal as of right.

QUESTION: So, it's something like our certiorari jurisdiction?

MR. WELSH: I think that's a very good analogy.

My point, though, is this, Your Honor.

QUESTION: Excuse me. Before you go on, when it is raised collaterally, what is the issue that is allowed to be raised collaterally, that counsel was ineffective with the burden that that requires, or simply that the issue is a valid issue?

MR. WELSH: It is precisely the same issue that would be raised on direct appeal. That is, you must demonstrate that the failure to maintain the claim constituted the ineffectiveness of counsel and, number two, that you are correct on the merits.

And this is where my record in this case is different than Pitchess v. Davis and Ex parte Hawk. In those cases, which I think should not be analogized to certiorari review or allocatur review, it was more akin to a petition for a writ of mandamus, absolutely extraordinary review. Here in Pennsylvania allocatur review is virtually the same as certiorari review. I see no significant differences or no differences helpful to this analysis.

But the important thing is is that in cited, reported cases, Pennsylvania courts look at the merits of otherwise defaulted claims when the default is alleged to constitute the ineffectiveness of counsel.

QUESTION: Is it -- is it your position, Mr. Welsh, that for purpose of -- purposes of exhaustion, taking a criminal conviction up through the direct appeal process and allocatur, if that's the word, to the Supreme Court of Pennsylvania on direct appeal suffices?

MR. WELSH: No, certainly, Your Honor. Let me explain why. This goes back to I think Justice Stevens' position or query.

This Court has not expressly articulated an analysis of the comity implications of -- of whether that constitutes exhaustion. I think there is much to be gleaned from this Court's cases to suggest that discretionary review by a state court does constitute exhaustion. Moreover, I think it is the universal position of all the federal courts, the lower courts that I know of, that the denial of discretionary review does constitute exhaustion. And I have a couple of reasons to suggest.

Number one, they had an opportunity. It just so happens that discretionary review is the way they exercised that opportunity.

Secondly, if discretionary review does not constitute exhaustion, even if you send Mr. Peoples back down to Common Pleas Court in a collateral attack, his -- his -- his last stop on the train is going to be the denial or grant of discretionary review. That's the way state courts are more and more exercising their jurisdiction.

I'd like to point out that I don't think the parties have really addressed this because I believe that it is the universal -- and I must -- I must hesitate only somewhat, but it is the universal practice in the lower courts to treat that discretionary review unless there is a default as constituting exhaustion.

QUESTION: Why should we treat it for the federal rule as an unexhausted claim where Pennsylvania affords the collateral review process?

MR. WELSH: I -- I see at least three reasons, Justice O'Connor. Number one, it is -- it is a very common mode of managing cases in the states now to have discretionary review. That's the way it gets done. And I think that this Court cannot read in any inference about whether they wanted to address the merits, whether they didn't want to address the merits, whether it was a bad day. Who knows why?

But I think secondly -- and this is the most important thing and is a matter that I believe you have written on more than any other Justice in recent days -- the underlying comity interests are advanced when you grant or find exhaustion on discretionary review. There is simply no reason to send back someone like Mr. Peoples to the Court of Common Pleas when in fact the Supreme Court of Pennsylvania had every opportunity -- and I'll get to the alleged defaults in a minute. But the Supreme Court of Pennsylvania can address the merits. They may not think it's quite as important as some other cases. They may limit their exercise of jurisdiction for reasons dealing with caseload and the like, but it seems to me that it will invite this Court to get too much into the minutia of state court practice to try to --

QUESTION: But at least -- at least in most cases, if the supreme court of a state denies discretionary review, the issues presented there will have been passed on by lower courts.

MR. WELSH: That will be -- that will be often the case, but Pennsylvania --

QUESTION: Well, now what about that? I would think -- I would think that probably there's exhaustion there.

But are you just talking now in your presentation about some issue that was not presented below but then is presented at the State Supreme Court?

MR. WELSH: I believe that with Justice O'Connor I was addressing the general proposition of whether discretionary review in a state court constitutes exhaustion.

QUESTION: But at least the -- the -- a lower court has passed on it.

MR. WELSH: That's true, but there's an irony to the point you're making. Ms. Barthold argues vehemently that if you find exhaustion here, it will constitute the throwing of a monkey wrench into the -- the judiciary of Pennsylvania. I contend that if you don't find exhaustion here, you will require Pennsylvania to change it's rules, and here's why.

As a matter of judicial economy, Pennsylvania has said that you must raise otherwise defaulted claims on direct appeal. And if you don't, you waive them. Ms. Barthhold now asks this Court to hold that those -- that those claims are not exhausted so that even though the Pennsylvania Supreme Court believes that those claims, as a matter of judicial review, are justiciable, she asks you to send them back to PCHA court. That is the irony that I think lies here.

And I suggest to this Court that here the cases I cite show that despite how untidy the record may be -- and make no mistake about it. This record is untidy. I realize that. But in the cases that I've cited, the Pennsylvania Supreme Court on discretionary review at times, other times under appeal as of right in homicide cases, can address the merits of a claim and, one, affirm finding no arguable merit. Two, they can reverse convictions on claims otherwise defaulted. Or three --and this is the important point that I think relates to this case -- the Pennsylvania Supreme Court can lock at the claim, find it to be of merit on its face, not unlike the way a 12(c)(6) motion might be dealt with in the federal civil rules, and if there's not a record, remand it, not necessarily send it around for a collateral attack, but remand it for further hearings.

Now, Ms. Barthold argues vehemently that Pennsylvania has some standard practice by way of denying review and sending the matter to a PCHA court. I know of no reported decisions on that.

QUESTION: Are you in a position to say whether it happens with any frequency that after a proceeding like this on direct review, a PCHA court, if that's what you call it, would grant some sort of relief?

MR. WELSH: I am in a position to say -- I'm a little reluctant to answer based on my understanding of the question. Let me make sure I understand the question. Is there a remedy of PCHA -- in the PCHA court available to me?

QUESTION: Yes.

MR. WELSH: I don't concede that.

QUESTION: Well, but I was just asking for information. You say then that it's either impossible or very unlikely after proceedings like this on direct review that any PCHA court would -- would consider your claims on the merits?

MR. WELSH: I don't believe I said that, Chief Justice Rehnquist.

QUESTION: Well, okay. Well, tell me what you did say.

MR. WELSH: The PCHA statute does provide for a means of collateral attack. It has now been substantially tightened up, which I find also ironic, to limit the class of cases that can go into the state collateral attack route. What I'm saying to you is --

QUESTION: Well, can you file such a petition and could it ever be granted for collateral review at the state level following one of these discretionary denials by the Supreme Court?

MR. WELSH: I understand. The answer is, yes, it can in general. Ms. Barthold is correct in that that would be available in -- in general.

My point to this Court, though, is -- is --

QUESTION: I thought you said but -- but not for issues that had not been presented to the Supreme Court. Is that -- is that --

MR. WELSH: No. My point on that is this, Justice Scalla. If Mr. Peoples had new counsel or did not have the burden of former counsel, counsel who dropped the ball, if in the Supreme Court of Pennsylvania he did not allege that the failure to maintain the viability of all claims constituted the ineffectiveness of counsel, they would be waived on collateral attack.

That is, Pennsylvania -- when Mr. Peoples lost his lawyer for whatever reason -- and that's not in the record why it happened, but Superior Court counsel on the -- on an issue that I'll use as an example -- denial of a non-jury trial. That was not raised in the Superior Court. If Mr. Peoples proceeded to file a petition for allocatur in the Supreme Court of Pennsylvania without that new -- without that lawyer -- that is, with a new lawyer or by himself -- and if he did not allege that the failure to raise that claim in the intermediate court was due to that lawyer's ineffectiveness, that claim is deemed waived forever.

As a natural and logical consequence of that, Pennsylvania, when claims are raised, otherwise defaulted claims are raised, they're justiciable.

Ms. Barthold would seem to concede this, but claims somehow that there must be a "record." That is, that if there's no record, cases cannot be within this ineffectiveness of counsel exception to the waiver rule.

And make no mistake. That rule is -- I -- I know of no other court that has that. And I have -- I have looked into it. It is -- it is --

QUESTION: That has what? The ineffectiveness or the waiver rule?

MR. WELSH: The ineffectiveness exception to the waiver rule.

QUESTION: On the ineffectiveness exception to the waiver rule, it sounds like the court never inquires into whether there was, in fact, ineffectiveness of counsel by some objective standard. You bypass that by a mere allegation to reach the substance of whatever the other claim --

MR. WELSH: That has change, Justice O'Connor. Let me explain how.

Before this Court's decisions -- decision in Strickland, there was simply an examination under Pennsylvania law of whether there was merit to the underlying claim allegedly waived due to the ineffectiveness of counsel. And if the claim was found meritorious, the inference was drawn that counsel was ineffective.

Post Strickland and the Pennsylvania case on that, which is Commonwealth v. Pierce, they've added somewhat more of an analysis. That is, they've looked to see whether there was a strategic element to that decision, et cetera. And I won't burden the record with that.

But even post strickland, the Pennsylvania appellate courts continue to use this exception. And there's a case from 1987, Commonwealth v. Glaze, 531 A.2d 796 where they simply looked at whether or not there was merit to the claim, whether there was possibly any strategic purpose in counsel's decision to waive a claim and prejudice.

But my point is this -- and this is why this case is different than Pitchess v. Davis and Ex parte versus Hawk. My client, should he be in PCHA court, would have exactly the same burden; that is, he would have to show a Strickland or a Pierce violation.

QUESTION: But isn't there a difference that the PCH -- PCHA courts -- court must address the merits of any claim that hasn't been waived or defaulted, whereas the Supreme Court of Pennsylvania doesn't have to?

MR. WELSH: You are correct, Chief Justice Rehnquist, but I think there's something that should be borne in mind here.

Pennsylvania's court system in the interpretation of its rules holds that those claims are justiciable. It's not a federal matter. That's why, for example, I do not rely upon the ineffectiveness exception to the preclusive -- preclusion rule of Sykes v. Wainwright which, as I believe Justice O'Connor wrote in Carrier, I have to go to state court for. My simple position is this. State law says it's justiciable, and that's all I think this Court needs to get involved in because I think it would be a morass that would be difficult to get out of if you try to federalize the law, which I think is what you're -- you're going to find yourself doing.

If this Court wants to address the question of whether as a general matter discretionary review constitutes exhaustion, that's another question. That goes back to Justice Stevens' point.

QUESTION: But surely we're not going to take one case from each of the 50 States.

MR. WELSH: I sure hope not.

QUESTION: We're going to have to come down with some --

MR. WELSH: You could appoint me again in those cases, but I think it would be a waste of all of our time.

QUESTION: May I ask another question about your PCHA remedy? Is it correct that that remedy is available for some claims in which the petitioner does not allege ineffective assistance of counsel? Are there any claims covered by your collateral review procedure that are not based on an allegation of ineffective assistance of counsel?

MR. WELSH: I can't answer that yes or no. I can say this. You -- it -- when you're on collateral attack, you must rely upon ineffectiveness to explain away waiver. So, for virtually all class of cases -- classes of cases that I can think of standing before you, ineffectiveness is going to have to be argued.

QUESTION: Well supposing, for example, a prisoner had a Batson claim in which he claimed that the jurors were -- that the prosecutor was motivated by racial prejudice and makes the prima facie case, and the Superior Court says, no, there's no prima facie case, and the Supreme Court denies discretionary review. And the petitioner then says I want a hearing on the claim, and the only place I can get it is on post-conviction relief under your PCHA. Could he get a hearing in the PCHA, or would he have waived it? I mean, is it res judicata because he raised it before?

MR. WELSH: He raised it on direct appeal?

QUESTION: He raised it on direct appeal and lost.

MR. WELSH: That could be a final adjudication that would bar PCHA review.

QUESTION: So, if he raises it, he's barred by res judicata, and if he doesn't raise it, he has waived. He -- it's --

MR. WELSH: Correct.

QUESTION: It's a trap no matter which way he goes.

QUESTION: (Inaudible).

QUESTION: It's a totally useless procedure unless he alleges ineffective assistance of counsel.

MR. WELSH: Correct.

QUESTION: In response to my question on the same point, you said, no, he can get review, collateral review, of that question. Now, which is it?

MR. WELSH: Maybe I -- it wasn't parsed quite as closely when I answered Justice Stevens.

QUESTION: Well, I didn't have specific -- a specific example there, but I said could a substantive claim which had not been waived below and on which the Supreme Court of Pennsylvania simply denied review -- could review be obtained in state collateral proceedings. And you said yes.

MR: WELSH: And I mean yes.

QUESTION: Well?

MR. WELSH: Let me explain --

QUESTION: Then --

MR. WELSH: -- why I said yes to his question. He said -- Justice Stevens simply said when it's raised on appeal. I interpreted that to mean that it had been addressed on appeal, either on appeal as of right to the Superior Court or on a review of the merits by the Supreme Court. I do not back off from my answer to you.

QUESTION: If the Supreme Court simply had denied discretionary review of the Batson claim, you could go get collateral review of it.

MR. WELSH: Yes, under the law that existed at the time this petition was filed. Pennsylvania has -- has as of I believe May of 1988 radically changed that by tightening up on what cases -- or what claims may be brought before it. And there is no binding case law on that.

QUESTION: Why wouldn't -- I still don't understand why you didn't -- you gave me one answer and said, well, it would have been decided on the merits and the appeal to the Superior Court and, therefore, it couldn't be raised. When I ask you, I get one answer, and when my --

MR. WELSH: Justice O'Connor is referring to the denial of allocator as constituting review.

QUESTION: No, but -- but presumably -- I think you've got to assume that the question was raised in the intermediate court of appeals. That would be where the merits would be.

MR. WELSH: Not necessarily. Some cases go directly to the Supreme Court, at least at the time that this was done.

QUESTION: What about this case? This one went through the Superior Court, didn't it?

MR. WELSH: That is correct. That is correct.

QUESTION: So, if it was addressed to the Superior Court, that's the end of the ball game.

MR. WELSH: That is correct. (Inaudible).

QUESTION: And if he didn't raise it in the Superior Court, that's also the end of the ball game unless he alleges ineffective assistance of counsel.

MR. WELSH: Yes.

QUESTION: If -- if the constitutional claim is raised in the trial court, denied, and it goes to the Superior Court -- is that where it goes next?

MR. WELSH: Yes, sir.

QUESTION: Goes to Superior Court and it's denied there, and then discretionary review is denied, you say that you cannot then get into collateral?

MR. WELSH: I'm saying --

QUESTION: Because it has been passed on on direct appeal. Is that what you're saying?

MR. WELSH: I'm saying that the denial of allocatur does not constitute finality so as to preclude

QUESTION: Collateral relief.

MR. WELSH: -- collateral relief.

QUESTION: That's what -- that's the answer you gave Justice O'Connor.

MR. WELSH: And I hope it's the same ones

QUESTION: That isn't the answer you give Justice Stevens.

QUESTION: Well, but now supposing that in Justice Stevens' **hypothesis, the Superior Court passes on the Batson claim and says it has no merit. There is nothing to it. The Supreme Court of Pennsylvania denies allocatur. Your answer to Justice Stevens was you cannot go into state habeas on that?

MR. WELSH: In that situation it depends on why the Superior Court did what it did, bearing in mind that they are a court with appellate jurisdiction as of right. They will presumably have addressed why it was. That's the reason so that if they said that there was an insufficient record, then you may be able to go make a record in the Superior Court.

QUESTION: May I -- I'm sorry, but may I ask you ask you one other? You say some cases go direct to the Supreme Court and some go by way of the Superior Court. Are they more serious cases or the less serious cases that bypass the Superior Court?

MR. WELSH: Historically there was jurisdiction in homicide cases for the -- directly to the Supreme Court.

QUESTION: And -- and there the review is just discretionary though.

MR. WELSH: No, it's as of right I believe.

QUESTION: Oh, there it's as of right. I see.

MR. WELSH: If I may, I'd like to address the individual claims in -- in very brief detail focusing on --

QUESTION: May I -- I -- I really hate to think that we're going to have to get into this kind of an inquiry state by state because I don't even understand it in Pennsylvania, to tell you the truth. And I --

(Laughter.)

QUESTION: Can we not too this off on the courts of appeals by adopting some -- some rule that -- that simply says if -- if -- if one follows Justice Stevens' analysis that if there is still available under the state law a state habeas remedy, there has not been finality within the state and let the -- let the -- let the courts of appeals, who are more familiar with the state procedures, figure out what -- what you've been telling us about?

MR. WELSH: I believe that that rule of law, if adopted, would constitute a very radical change in the way the federal courts, the lower federal courts, administer justice.

QUESTION: For better or worse?

MR. WELSH: For worse because it would kick more cases back to duplicative review on state collateral attack.

Here's the rule I suggest that this Court adopt. I suggest that this Court simply instruct the lower federal courts that where claims were presented to the state court of last resort, even if on discretionary review, in a manner in which they were justiciable. That is, could the state court reach them in accordance with the state court procedures? They are exhausted. That rule simply stated will permit the -- the courts of appeals and the district courts and, probably more than anyone else, the magistrates to sit down and address records such as this.

QUESTION: Even though -- even though there may be cases where in spite of all that procedure you talked about, you could go into state collateral, even though state collateral relief was still available.

MR. WELSH: That's correct because -- because -- and here's -- I'm going to remind the Court of this, as I finish my presentation. As a matter of judicial economy, Pennsylvania appellate courts look at or hold to be justiciable otherwise defaulted claims.

QUESTION: But the problem with your view of the rule is that Pennsylvania Supreme Court has made a considered judgment here that the defendant seeking the discretionary **review would be better served by the appointment of counsel. And so, they've appointed counsel for him, and you want us to ignore that and say everything the pro se litigant raised has been finally reviewed. And that seems to me not to serve the best interests of the state or the litigant.

MR. WELSH: I think that that's probably the most important point that I'd like to leave with, and my response to it is this. My client, Mr. Peoples, filed a facially complete and valid petition. It compiled with the rules. In fact, it was probably better, except for its typographical errors, than what his lawyer filed.

I agree that I must prove that the claims in both petitions are justiciable in order to prove exhaustion here. But here I think that if you look at these two petitions, they will be viewed as one petition which is, indeed, what the Pennsylvania Supreme Court did. They didn't enter an order saying we deny the pro se petition, we deny the counsel petition. An order was simply entered saying petition denied. And I think that by virtue of counsel's cross-reference or invocation or incorporation of the pro se petition, I think you can hold that to be exhausted.

I just have one more point that I will leave with, and that deals with the identification of claims. There is -- has been a vigorous attack here on whether the due process through the impeachment use of convictions claim has been sufficiently identified. I think that's an important claim. There has been some talk about the lack of merit of the claims. I will only say I think this is an extremely important claim where he's on trial for robbery and the jury hears that he has two robberies and theft conviction.

In Pennsylvania, when you cite Bighum, the Pennsylvania case on impeachment, everybody calls it a Bighum hearing. It's a Bighum issue. Bighum undertook a due process analysis looking at this Court's decision in Spencer v. Texas. An invocation of Bighum is tantamount to an express invocation of the Due Process Clause.

Unless the Court has any further questions, I thank you for your attention.

QUESTION: Thank you, Mr. Welsh.

Ms. Barthold, you have two minutes remaining.

REBUTTAL ARGUMENT OF GAELE M. BARTHOLD

MS. BARTHOLD: Thank you, Mr. Chief Justice.

I think there is no question that there is a mere presentation rule which has been adopted by the Third Circuit and to some extent by the Ninth Circuits, that those circuits have held that if there is any conceivable way that a state supreme court could look at an issue, even by violating their own rules, they have to assume that there is exhaustions. I think that that is absolutely wrong, and I would urge this Court not to adopt or to condone such a rule for all of the reasons I've suggested.

I would point the Court to footnote 7 of our brief in which we go through in great detail what is cognizable under the state PCRA, which is the collateral review statute, in Pennsylvania. There is absolutely no question that this prisoner has an available avenue of review in the Pennsylvania state courts in collateral review. And there is absolutely no doubt that the claims which he tried to put belatedly and in the most helter-skelter fashion before the Pennsylvania Supreme Court were not properly before that court.

And with respect to the ineffectiveness claims, I would point the Court to Commonwealth v. Drake which is cited in our principal brief in which the State Supreme Court explicitly said that when you have an ineffectiveness claim being belatedly raised on discretionary review, that is better dealt with in state collateral review procedures. So, I would cite the Court to Drake.

I would also tell the Court that the direct appeal jurisdiction of the Pennsylvania Supreme Court is limited now in criminal cases to merely death cases.

QUESTION: Thank you, Ms. Barthold.

MS. BARTHOLD: Thank you so much.

CHIEF JUSTICE REHNQUIST: The case is submitted.

(Whereupon, at 1:57 o'clock p.m., the case in the above-entitled matter was submitted.)