MCFARLAND v. SCOTT, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION

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Argument of Mandy Welch

Chief Justice Rehnquist: We'll hear argument next in Number 93-6497, Frank McFarland v. James A. Collins.

The Court remains in session, don't talk until you get outside.

Ms. Welch.

Mr. Welch: Mr. Chief Justice and may it please the Court:

Frank McFarland asked the district court to appoint him a lawyer and to stay his execution long enough so that that lawyer could do what was proper and necessary to prepare and file Mr. McFarland's first Federal habeas corpus petition.

The respondents took the position--

Unknown Speaker: When did he ask that, counsel?

Mr. Welch: --He made the request on October 22nd, Justice Scalia.

Unknown Speaker: That was how long after the petition for certiorari had been denied from his original conviction?

Mr. Welch: It was denied June 6th, so it was approximately 4 months, 4-1/2 months.

Unknown Speaker: Why did it take that long to worry about the counsel problem?

Mr. Welch: Well, I'm sure that Mr. McFarland worried about the counsel problem the entire period of time, Your Honor.

Unknown Speaker: Did the Texas Resource Center worry about it?

Mr. Welch: Yes, sir, we worried a great deal about it.

Unknown Speaker: And what was it, 5 days before his execution you came in with this motion?

Mr. Welch: Yes, Your Honor.

We took the position and have taken the position that we should do everything we can in order to get counsel for unrepresented death row inmates in Texas for State court proceedings before we resort to the provisions in Federal court.

Unknown Speaker: And you didn't see the problem arising until 5 days before the execution, having already gotten one extension of the execution, right?

Mr. Welch: Your Honor, we did see the problem arising, and we were worried about the problem.

We were worried about the problem with respect to approximately 65 people in Texas'--

Unknown Speaker: How many lawyers do you have at the Texas Resource Center?

Mr. Welch: --At this time, Your Honor, we have 18, and there are 376 people on death row.

We are involved in at least 220 cases in which people are... in which those prisoners are seeking relief in any State and Federal court.

Unknown Speaker: But this was a man who had been scheduled to be executed in mid-September.

You had already gotten one extension, and nonetheless, you wait until 5 days before the extended execution date to come in with a request for counsel.

Mr. Welch: No, Your Honor, we did not wait until 5 days before.

We did not intend to wait until 5 days before the execution date.

At that point, there was a request pending in State court and we were expecting and hoping the State court would grant an extension, or would grant a modification, and that going to Federal court would be necessary.

It was not something we wanted to happen, Your Honor.

Unknown Speaker: It was not.

Mr. Welch: No.

Unknown Speaker: There were so many easy ways to avoid it.

I find it extraordinary to think it was something you did not want to happen.

Mr. Welch: The Texas Resource Center, or the lawyers at the Texas Resource Center consider the recruitment of counsel for people on death row to be an enormous and important responsibility.

What we are here today for--

Unknown Speaker: Counsel, I am circuit justice for the Fifth Circuit, as you know, and the Texas Resource Center comes in at the last minute regularly.

Mr. Welch: --Your Honor, we do come in at the last minute if the last minute is... if you're talking about shortly before an execution date, but we try to come in earlier.

In Mr. McFarland's case, the execution date was set without notice to us.

We learned about it when Mr. McFarland wrote us and asked us to continue helping him recruit a lawyer.

When... during the month of September, and it's... it may look to an outsider who is only thinking about Frank McFarland's case as though we were sitting around during July, August, and September, with Mr. McFarland's agreement, waiting for an execution date to be set so that we could put into play the circus that goes on down there.

That is not what we were doing, Your Honor.

I assure you, that is not what we were doing.

In the month of September, the month in which Mr. McFarland's execution date was set, there were 10 executions.

Seven of the people who were scheduled for execution, Your Honor, did not have lawyers.

In August, there were... I think there were six executions, and our lawyers were involved in most of those cases.

On September 3rd--

Unknown Speaker: Eighteen lawyers and you?

Mr. Welch: --I can't remember if some of those lawyers... one or two has come on since then, Your Honor.

Of those 18 lawyers... and this is important, although... although it is just piece of a really big picture.

Of those lawyers, five have less than 2 years experience, and only five have more than 5 years experience.

Unknown Speaker: Ms. Welch, don't waste anymore of your argument time on this.

I just want you to know that I am not happy with the performance of the Texas Resource Center in the cases that come before me as circuit justice.

Let's leave it at that.

Mr. Welch: I understand, Your Honor.

Unknown Speaker: Try harder.

Mr. Welch: Respondent took the position in the court below that the court did not have jurisdiction over this matter because Frank McFarland had not yet filed a legally sufficient habeas petition.

The lower courts agreed and denied a stay.

In this Court, respondent argues that while a Federal court may have authority to appoint counsel before the filing of a petition under these circumstances, there is an absolute jurisdictional bar that prevents that court from keeping the prisoner alive.

Unknown Speaker: Ms. Welch, you said that the petitioner here had not filed... that the reason for the court's denial was he had not filed a legally sufficient habeas petition.

Had he filed any habeas petition in the Federal court?

Mr. Welch: No.

He had only filed a motion requesting appointment of counsel, notifying the court that he was a State prisoner under sentence of death, that he did want to seek relief under 2254, and that he needed a lawyer under... that he needed a lawyer to prepare a petition in order to seek that relief.

He specifically asked for the lawyer under--

Unknown Speaker: Did he ask for a stay at the same time?

Mr. Welch: --Yes, Justice O'Connor, he asked for a stay in order to have a lawyer appointed, and so that that lawyer could do what was necessary to file the petition that was needed under the State's position to invoke the court's jurisdiction.

Unknown Speaker: Just to clarify, when the district court did finally obtain counsel for McFarland... I think that was on the very eve of execution... then counsel did file a pleading entitled, petition for writ of habeas corpus, did he not?

Mr. Welch: That's not... I mean, the court did not obtain counsel.

What happened is the counsel that... Danny Burns was the lawyer that did end up filing a petition.

He called us that afternoon and told us that he had gotten a call from the Federal magistrate asking him if he would accept an appointment in this case, and he was calling to find out about the case in order to try to decide whether or not he was in a position to accept an appointment.

Unknown Speaker: But he then did file a petition, did he not?

Mr. Welch: He did.

He was never appointed, and in fact he was never contacted by the judge.

Unknown Speaker: And the district court xx denied the stay based upon the merits of an incomplete petition, right?

Mr. Welch: That is correct, Your Honor.

Unknown Speaker: And a divided panel then issued the stay.

Mr. Welch: Well, this Court issued a stay at the same time on the petition for certiorari from the lower... from the district court and the Fifth Circuit's denial of the appointment of counsel and stay motion in the first proceeding.

Those are two separate proceedings.

They were filed at the insistence of the court clerk, I believe, in the Federal court, under two separate case numbers, and there were two stays that were simultaneously granted.

No one disputes... no one before this Court disputes that when Congress enacted 848 it intended to authorize and require district courts to appoint counsel to assist with the preparation and filing of a habeas petition, and there is good reason why no one disputes that, and in fact the respondent's amicus Criminal Justice Legal Foundation explicitly adopts that interpretation of 848.

They know--

Unknown Speaker: It isn't clear that the State agrees, is it?

Mr. Welch: --You're right, Justice O'Connor, it's not agreed that they concede it.

They don't dispute it.

they have said, in the event, if the Court determines, they have really not taken a position on it as far as I can tell.

Unknown Speaker: In any event, you take the position that 848 does allow the appointment of counsel by the court prior to the filing of a petition for habeas?

Mr. Welch: Yes, Your Honor.

Yes, we definitely do, and as the Criminal Justice Legal Foundation's brief indicates, they explicitly agree that 848 authorizes the prepetition appointment of counsel, and in fact--

Unknown Speaker: It does have language of, in any post conviction proceeding under 2254 or 2255 the appointment can be made, but you think that doesn't limit it to--

Mr. Welch: --No, and in paragraph... I can't find it.

I thought I had it here, but in paragraph (8) under that provision, the court indicates that counsel appointed in accordance with those provisions shall do whatever is necessary, including six stays of execution, and it refers to the post conviction process, and it uses language that suggests that counsel is intended to be available at all critical stages.

Unknown Speaker: --And the district court in the Fifth Circuit in this case, what is the position, now, on that point, the appointment of counsel?

Mr. Welch: They did not... the Fifth Circuit did not specifically address the right to counsel, but the district court specifically refused to appoint counsel, apparently relying upon the jurisdictional bar that respondents urge.

Unknown Speaker: Would it be simpler to take the position that a proceeding does require the filing of a petition, but that in order to give effect to the statutory counsel guarantee, it would be an abuse of discretion to act on the pro forma petition before the appointed lawyer has had time to investigate and to amend, if the lawyer sees fit?

Mr. Welch: I think that that would just... yes, Justice Souter, I think that would certainly address the problem that Frank McFarland was faced with and that is being presented to the Court, but only if it is clear to the inmate that an insufficient petition does not invoke the court's jurisdiction and insofar as it requires the Barefoot standard to be met.

Unknown Speaker: That's right.

Of course, I suppose the answer to Barefoot is that the statutory provisions for appointment of counsel have come after Barefoot, and Barefoot should be at least narrowed at least not to frustrate the counsel guarantee.

Mr. Welch: Yes, Justice Souter, but in addition to that, I think it is important to note that Barefoot paid a lot of attention to the fact that in that case he had had competent counsel throughout the proceedings, and to some extent both the Fifth Circuit and this Court relied upon that in approving the standards that have since become the--

Unknown Speaker: No, I realize that.

Maybe I'm not getting the point, but it seems to me that the enactment of the statutory guarantees for counsel in both the State and the federally derived habeas proceedings reflects in effect a congressional judgment that there ought to be more counsel, i.e., that there ought to be a guarantee of counsel at the habeas stage in the Federal court, and I don't suppose that we could in effect honor that guarantee that Congress has chosen to provide if Barefoot were not narrowed to a degree in order to allow counsel time to do what counsel is supposed to be there to do.

Mr. Welch: --I absolutely agree with you, Justice Souter.

I do think that there could be circumstances where someone files a piece of paper asking for counsel and attempts to prepare what would be considered a petition, but the court might find that it's not a petition, and in those circumstances I think that the All Writs Act would provide a habeas court with the necessary authority to issue a stay to protect its jurisdiction over--

Unknown Speaker: What jurisdiction?

Jurisdiction over what?

I mean, it seems to me no matter how liberally you interpret the requirement, despite Barefoot, the provision for counsel only applies to someone who is seeking habeas corpus, and it seems to me that you need some assertion of an error in the State court, not simply an assertion, I don't know whether there's an error or not, appoint a lawyer for me to see if there was one.

That's certainly not what Congress said.

Congress said, if there's an error that you're claiming, you're entitled to a lawyer to prosecute it, but don't you need some assertion of an error, at least?

Mr. Welch: --Yes, Your Honor, but Congress also recognized that in order for a death row inmate to articulate an error sufficiently to benefit from habeas corpus review, a lawyer is necessary.

Unknown Speaker: To help him prosecute his claim of error, but he has to have a claim of error.

It's not saying anybody, whether he has a claim of error or not, is entitled to get a lawyer to see if he might have a claim of error.

That's not what Congress said.

Mr. Welch: Your Honor, I do think that that is what Congress said, that a lawyer is required in order to assist a death row inmate in identifying those claims which must be reviewed by habeas corpus in order to provide an effective remedy for people who are sentenced to death in violation of the Constitution.

Unknown Speaker: Well, of course, the further question is the authority to issue a stay, and turning your attention to Justice Souter's suggestion that a skeletal petition be filed, is that consistent with Rule 4 of the habeas rules, which requires that a petition be dismissed unless it appears on its face that there's a probability of relief?

Mr. Welch: I think that it could conflict with Rule 4 if Rule 4 is construed as an absolute, automatic bar to proceeding, but that is not what Rule 4 is, nor what it was intended.

While the court might have discretion under some circumstances to do that, I think that 848 makes it clear that it would be an abuse of that discretion, as Justice Souter indicated, if that were done in a case... in a death case without counsel.

Unknown Speaker: So if it plainly appears from the facts of the petition that he's not entitled to relief, nevertheless it would be an abuse of discretion to dismiss it in a death case.

Mr. Welch: Your Honor, I think that it would be an abuse of discretion to determine from that pleading whether or not someone is clearly entitled, or clearly not entitled.

Unknown Speaker: Or would you say that you could not determine from the pleading whether or not he is clearly entitled?

Mr. Welch: Yes, Your Honor.

I think that the rule should be that the court is not committed to determine from an uncounseled petition that--

Unknown Speaker: And would this apply in... just in death cases, because that's the only time in which counsel are appointed under the statute, or would you extend this rule to any habeas petition in Federal courts?

Mr. Welch: --No.

I would--

Unknown Speaker: The Federal court is sort of a filing cabinet until the petition is fleshed out?

Mr. Welch: --No, Your Honor.

I think that when Congress passed 848 it make an absolute determination that counsel is required in every capital case.

It has not made that determination with regard to other habeas provisions.

That would have to be addressed--

Unknown Speaker: Yes, but you're interpreting Rule 4 saying it's an abuse of discretion to dismiss until counsel has been obtained.

Mr. Welch: --But that is because of the intent expressed by Congress in 848.

There are counsel provisions that are within the discretion of the court when the interests appear to require appointment of counsel under the Criminal Justice Act, but I think that what Congress did in 848 is enact an unrebuttable presumption that the interests of justice requires the appointment of counsel in all capital cases.

Unknown Speaker: Is it essentially your argument that 848 contemplates that there will be a lawyer-drawn petition, and not that there will be a petition... that the petition will be drawn pro se by the prisoner, so that it is 848 that would inform everything else and would take precedence over any rule?

If 848 entitles the defendant or petitioner to a lawyer-drawn petition, then the question about... the other questions become moot.

Mr. Welch: Yes.

Unknown Speaker: But that's... you're reading 848 to say, not only are you entitled to counsel in a capital proceeding, but you are entitled to counsel to draw your habeas petition.

Mr. Welch: Yes, Your Honor.

Yes, Justice Ginsburg, that's--

Unknown Speaker: Why do you do that?

That's a very roundabout way to say that.

I mean, it would be very easy for Congress to say, anyone who desires to file a habeas petition is entitled to a lawyer for that purpose.

It did not say that.

It said, in any post conviction proceeding.

Mr. Welch: --Yes, but if you take into account the need for a lawyer, and the difference between the right to a lawyer, the discretionary right to a lawyer under 3006A and that mandatory right to a lawyer under 848, it makes no sense to create a situation where a pro se habeas petitioner would go into court, ask for a lawyer, be executed because his petition was inadequate, regardless of whether or not he had any claims that a lawyer could have presented and obtained relief on.

That makes no sense.

Unknown Speaker: Ms. Welch, your opponents say that the Pennsylvania case, or our case of Pennsylvania Bureau of Corrections v. U.S. Marshall's, militates against your contention that the All Writs Act is available to you.

What is your response to that?

Mr. Welch: That case involved issuing of... is it issuing of subpoenas?

Anyway--

Unknown Speaker: Subpoenas ad testificandum, yes.

Mr. Welch: --Right.

That... in that case, there was a specific statute that dealt with the specific thing that was before the court.

In this case--

Unknown Speaker: Isn't there a specific statute dealing with stays--

Mr. Welch: --There is a specific statute dealing with stays, and if you interpret it as we do, it gives the court jurisdiction when a request for counsel is filed.

If you interpret it as the State does and limit its application to that period of time after a petition is filed, then there is nothing... it is void.

There's a void.

There's a blank for that period of time when uncounseled petitioner is seeking his rights under 848, and so you have a totally different situation.

Unknown Speaker: --Well, you know, if you're reading things into section 848 simply because fairness or logic requires it, why do you have to read into it that a stay of execution would be available?

It seems to me the most you would read into it is that if he comes in soon enough to request counsel, counsel will be given an opportunity to draw a habeas petition, and if that petition has merit, then a stay can be issued, but if you come in 5 days before the execution with no claim at all and ask for counsel, should you be able to get a stay?

You've had 180 days.

Mr. Welch: Your Honor, the question before this Court is whether or not the Court has jurisdiction to stay an execution--

Unknown Speaker: To stay.

Mr. Welch: --when it's necessary in order to appoint counsel and protect its habeas review over claims that are then presented in a counsel petition.

Unknown Speaker: And what I'm suggesting is that your necessity argument that 848 must operate even before a meritorious habeas petition has been filed, that argument only carries you to the point where you have to allow them to file it within a reasonable time before a stay of execution is necessary, but not 5 days before, that requires Federal courts to stay the process of State justice.

Mr. Welch: I don't agree with you, Justice Scalia, and I don't think that it's necessary to read the stay provisions into 848.

The stay provisions are within the All Writs Act, which authorizes the Federal habeas court to issue a writ or other orders when it is necessary to protect its prospective jurisdiction over a State conviction and death sentence.

Unknown Speaker: But its jurisdiction comes from 848, and if 848 only guarantees that you get counsel if you apply in a timely fashion and not when you decide 5 days before your execution that there may be something wrong, although you can't really state anything wrong.

Mr. Welch: Your Honor--

Unknown Speaker: We have to go back to 848, it seems to me, whether you use the All Writs Act or not.

Mr. Welch: --There may be circumstances where a death row inmate so abuses the process and so toys with the court and so ignores available processes that it would not be an abuse of discretion to deny a stay or to deny counsel, but those issues are not before this Court.

Unknown Speaker: Well, Ms. Welch, when is the earliest time in this case that you think 848 would have allowed the appointment of counsel?

Mr. Welch: It's... because of the uncertainty about the provisions, Your Honor, it is really difficult for me to say.

We had always approached the right to--

Unknown Speaker: Can you look back and say there is some time after which this request could have been made?

Mr. Welch: --After the State court refused to appoint counsel, or after this, and also refused to allow additional time for other measures to be taken that might have provided counsel.

Unknown Speaker: When was that?

Mr. Welch: That was October 22nd, when the Court of Criminal Appeals denied our request to order the State court to appoint counsel.

Unknown Speaker: And you say no, it would not have been possible to have asked for counsel before that date under 848?

Mr. Welch: Well, that was the position that we had taken that we should pursue all available State remedies for counsel.

Unknown Speaker: Excuse me, you didn't ask the court to appoint counsel until October 22nd.

That's the first time you asked a State court to appoint counsel, isn't it?

Mr. Welch: No.

We asked the State court to appoint counsel in... well, we went before the State court in September, and the judge was not there, and the judge modified the date so that we could come back before the actual trial judge, and there was pending before that judge a request for assistance, for time to recruit counsel.

That judge took the position that Texas law did not authorize him to appoint counsel, and we... and so we were trying to persuade that judge to give us enough time to recruit volunteer counsel, but that judge said explicitly to me over the telephone, with the district attorney on the phone, I do not interpret Texas law as even allowing me to appoint counsel, so I'm not going to do it.

Unknown Speaker: Well, whatever the reason for not asking may have been, the fact is that you did not ask for State appointment of counsel until October 22nd, isn't that right?

Mr. Welch: That is... no.

No, Your Honor, that's not correct.

Mr. McFarland did ask for counsel in September, and that request was held over when another judge modified the execution date until October.

I reserve the rest of my time for rebuttal, Your Honor.

Unknown Speaker: Very well, Ms. Welch.

Ms. Griffey, we'll hear from you.

Argument of Margaret P. Griffey

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

McFarland asks the Court to disregard the plain meaning of 2251 and amend the express limitations enacted by Congress in order to allow a stay of execution to be entered whenever a death sentence inmate approaches the Federal court claiming to be without the assistance of counsel.

In asking the Court to validate his misconstruction of statutory authority, McFarland seeks to effectively overturn the limitations of constitutional review recognized in McCleskey v. Zant, and to indirectly overturn the limitations of Coleman, Giarrantano, and Finley.

McFarland complains that the ruling of the court below effectively foreclosed Federal habeas review because under the Fifth Circuit's analysis a petitioner is unable to obtain a stay, an appointment of counsel, without first filing an application, but is unable to file an application without first obtaining the assistance of counsel in a stay.

Unknown Speaker: Ms. Griffey, what is your position now on this section 848?

Can a defendant facing an execution obtain appointment of counsel by the Federal court before the filing of a petition for habeas?

Mr. Griffey: No. 848(q)(4)(B)--

Unknown Speaker: You think it is not open to that interpretation?

Mr. Griffey: --I think it is not open to that interpretation.

Unknown Speaker: Some of the amici supporting your views in the case take a different view, do they not?

Mr. Griffey: One did.

Unknown Speaker: Yes.

Mr. Griffey: The amicus of the Criminal Justice Legal Foundation took the position that counsel could be appointed beforehand.

However, it is clear--

Unknown Speaker: Of course, normally, you would expect if the habeas petition were going to be prepared properly that some advance preparation might be required by counsel and possibly investigators.

Mr. Griffey: --That is not what Congress provided for.

There is a specific provision, 848(q)(4)(B), that refers to a habeas proceeding, or a post conviction proceeding under 2254.

2254 is explicitly conditioned on there being an application on the ground that custody is in violation of the Constitution, laws, or treaties of the United States.

The general provisions contained in subsection (q)(4)(A) and the following provisions are merely general provisions and do not prevail over the specific provision, or there would have been no need for that specific provision.

Unknown Speaker: Do you think that if the petitioner, prisoner himself, files the habeas petition and then requests counsel, that it is within the discretion of the Court to dismiss the habeas petition based on a review of just what the prisoner has put, or does a court properly exercise its discretion by refusing to dismiss the petition until the attorney has looked at it?

Mr. Griffey: I think that is entirely within the court's discretion.

What is not within the court's discretion is the basis upon... whether a State--

Unknown Speaker: You do not think it would be an abuse of discretion for the court to dismiss the writ, thereby ending the proceeding?

Mr. Griffey: --I think if there is a petition before the court that raises constitutional basis for relief, then under 848(q), that petitioner is entitled to the appointment of counsel, but he may not be entitled to the appointment of... to the stay of execution unless he raises a substantial showing of the denial of a Federal right upon which relief might be granted.

Unknown Speaker: Oh, but you even say that before you can get counsel the petition has to have some merit.

Mr. Griffey: Under Rules 2 and Rules 3 and 2242, yes, it does, otherwise the district clerk of the court is entitled to not file that petition.

Unknown Speaker: So the critical document is the filing of the initial petition?

Mr. Griffey: Or application, yes.

Unknown Speaker: And Congress you think intended our... an interpretation that the critical document be filed without counsel?

Mr. Griffey: That is what Congress wrote.

Unknown Speaker: Ms. Griffey, is there any ambiguity at all... what sense does it make to attribute to Congress the purpose of having an inadequate petition filed?

Let us take, which is not an usual case, somebody who has a below-normal IQ.

Why would Congress want this proceeding to start out with an inadequate pleading?

If Congress is providing for counsel on 848, doesn't it make sense to say that Congress wants a well-pleaded complaint, rather than an inadequately pleaded complaint?

Mr. Griffey: I think you have to judge what Congress intended by the language that is in that statute, and it refers to a post conviction proceeding under 2254.

Congress could have provided for the prepetition appointment of counsel.

It could have provided for a stay to allow the appointment of counsel prior to the formulation of an application and petition, sufficient time, under whatever standard Congress found, to prepare that application and petition, but nonetheless, Congress didn't do that.

Unknown Speaker: Is it your position that this statute is plain on its face, that the statute requires the pro se petitioner, himself, to file the pleading, the essential pleading that is going to govern the case, and does not give him a right to counsel for that pleading?

Mr. Griffey: Not with respect to the filing of the initial pleading.

Once a petition has been filed raising error of constitutional dimension, then he is entitled to the appointment of counsel, and he is also entitled to file an amended pleading.

Unknown Speaker: Is the request for counsel a part of the proceeding?

Mr. Griffey: No.

A proceeding is--

Unknown Speaker: The request for counsel is not a part of the proceeding?

Mr. Griffey: --If it comes after the filing of an--

Unknown Speaker: If it comes after, it is a part of the proceeding?

Mr. Griffey: --It is incidental to the proceeding, such as a hearing would be, or any of the other rules pertaining to Federal habeas review that--

Unknown Speaker: If it's incidental to the proceeding, then it's part of the proceeding?

You're hesitating because if you say yes, then the proceeding begins, and he is entitled to counsel before the habeas petition is filed, and it seems to me perfectly plausible that Congress intended to expand the proceedings under 2254 by including that phase in which counsel is appointed under 848.

Mr. Griffey: --If Congress intended to do that, they did not do that, and it is a well-established rule of statutory construction that the court will not provide what Congress intended to do but presumably by one theory or another omitted by inadvertence.

Unknown Speaker: But isn't it equally incumbent on us to construe our procedural rules in such a way that it does not turn congressional statutes into dead letters, and if we continue to construe the procedural requirements as it seems to me you are asking us to do, then 848 was a waste of everyone's time.

Because if the petition has... I will grant you, by the way, for the sake of argument and probably ultimately, that a petition, a habeas petition must be filed in order for 848 to kick in, but assuming that a habeas petition, once filed, may, without any abuse of discretion, be finally adjudicated before counsel has had so much as a peek at it, is to turn the 848 guarantee into a farce, and haven't we got an obligation to adjust our procedural requirements in a way that avoids that?

Mr. Griffey: The only way that 848(q) is turned into procedural farce by... under that scenario would be if the petitioner waits until the last minute to file whatever it is--

Unknown Speaker: No.

Oh, with respect, I don't think... maybe I haven't made the question clear.

It seems to me that on your argument that is true if the petitioner comes in on the very first possible day, because the petitioner comes to the court and says, I want to make a habeas claim, and I want counsel, and the court says, in order to get counsel you've got to file a habeas claim in the first place, and we'll assume that's correct.

The petitioner does so, and on your view, it is then no abuse of discretion for the court to look at that petition and say, this is no good.

I dismiss it.

Or, indeed, to wait until counsel appears and says, I want to amend the petition, and the court says, oh, no, I've got the petition before me and I'm going to dismiss it right now, because it is inadequate for various reasons.

I understood that to be your argument, that that would be no abuse of discretion for the court to do that.

Was I wrong?

Mr. Griffey: --There is no abuse of discretion there.

Unknown Speaker: Okay, then 848 is a farce.

Mr. Griffey: 848(q) could... the protection that would be given to a defendant under those circumstances would be, needless to say, if they came in at the last minute--

Unknown Speaker: No.

We're talking about coming in at the first minute.

The petitioner is there.

Without an abuse of discretion the court says, I don't have to waste time while you amend this petition, I've got a petition in front of me, it is for any one of various reasons inadequate, and I dismiss it.

That has nothing to do with timing.

It may well be... it may well be within the court's discretion not to stay, if they deliberately wait and come in at the last minute.

We're not talking about that.

We're simply talking about the authority of a court, consistent with our construction of the Constitution and the procedural rules, to dismiss before counsel has had a chance to do anything, and you're saying it would not be an abuse of discretion.

Mr. Griffey: --Yes, I am saying that.

I'm saying that 848(q) right to counsel is conditioned upon a 2254, or actually a habeas corpus proceeding is defined by title 28, chapter 153, and all the statutory provisions therein all of which uniformly require a petition or an application to be pending, and incidentally, none of which address any prepetitioner application stay of the proceeding.

Unknown Speaker: Is it right that this Gosch case, that applies without regard to the time of the petition?

That is, if the petition is inadequate, it can be dismissed and that's the end of it?

I take that that's what this case holds.

The district court can look at the hand-drawn petition, say it's no good, goes up on review, affirms that it's no good, and then, as Justice Souter said, where is there room for counsel in that picture?

Mr. Griffey: Yes, that can happen, but underlying all this concern is the assumption that Federal habeas review is somehow indispensable to the State's valid imposition of a death sentence, and it simply is not.

There is no constitutional requirement of Federal habeas review or of counsel in Federal habeas review.

Unknown Speaker: You're saying it's perfectly rational for the Federal Government to say, where you've come forward with a good claim, we'll give you counsel to help you, but where there's no good claim, we do not provide counsel to engender a claim.

That's perfectly rational, and if the language reads that way, you're saying we should read it that way.

May I ask a factual question?

In the first part of the blue brief there's a description of the practice, an informal practice that had developed before the Gosch case was decided.

Is that an accurate statement of what the practice was before?

Mr. Griffey: I don't remember exactly how it was delineated there.

I believe it was.

We... our office does not oppose a stay of execution if anything is filed that can reasonably... and we're talking reasonably as if it were almost a pro se petition, or was a pro se petition filed, that can be construed as a habeas application.

So, for example, when something is filed saying, I want a stay, and here's four potential grounds for relief, we will say, if the court should--

Unknown Speaker: The practice they described, as I understand it they would file a perfunctory petition which recited one claim that had been raised on direct appeal, knowing that there might be more there, but then routinely there was no opposition to a stay, as long as there was a claim stated that had been--

Mr. Griffey: --That's correct.

Unknown Speaker: --But that all changed after the Gosch case.

Mr. Griffey: That changed... that was not the procedure that was followed in Gosch.

I can't say that that has all changed.

It is still our office's position, and most of the courts are continuing to act in that manner, of allowing time to file amended petitions and that sort of thing, and I also would like to point out--

Unknown Speaker: But wasn't... McFarland's situation was that if Gosch was going to apply in his case, and he filed just this rudimentary petition, he was at grave risk of having it thrown out, because it would not have been a well-pleaded complaint, and then not being able to come with a counseled petition?

Mr. Griffey: --That--

Unknown Speaker: Wasn't he... that was a real risk for him.

Mr. Griffey: --That was his risk in Federal court, but underlying McFarland's claims here is the assumption that somehow the procedure fell down in the first instance in the Texas courts because Texas does not routinely and regularly with a uniform procedure provide for the appointment of counsel.

Unknown Speaker: That had to do with the timing of it.

I think Ms. Welch said she wanted to exhaust the State remedy route.

But now we're not talking about a question of timing, as was brought out in the colloquy with Justice Souter.

It could be at the earliest possible moment the prisoner writes is hand-drawn petition, and it's no good.

It gets thrown out, gets affirmed on appeal, that's the end of Federal habeas, there's never been any chance for 848 to operate, and you say that's what Congress contemplated, that the prisoner himself must write a decent enough petition... not a pro forma petition of the kind that went on before Gosch, but a really good petition.

Mr. Griffey: Habeas jurisdiction is conditioned upon there being errors of constitutional dimension identified, and the factual support for those set forth in an application, and Congress has not changed its delineation of a Federal habeas proceeding.

As a practical--

Unknown Speaker: Discovered by the prisoner himself, if he has no lawyer.

Mr. Griffey: --There are several underlying assumptions here that need to be addressed.

First of all, if it was known 4 months, 3 months in advance that the resource center was going to be unable to recruit counsel, petitioner should have been and maybe was advised of that fact.

There still exists in Texas the inmate legal services legal group that will provide representation for all indigent non-fee-producing cases.

That organization has not been utilized since the advent of the Texas Resource Center, but it nonetheless continues to exist.

Unknown Speaker: May I ask you this question: aren't you making an argument for unreasonable delay as opposed to an argument about jurisdiction?

Maybe they waited until too late here.

Maybe it would not have been an abuse of jurisdiction to deny the stay, but we've got a jurisdictional question about the power of the court to appoint counsel and to grant a stay if warranted, and I don't see how that question turns on the facts that you're arguing.

Mr. Griffey: You're correct, it doesn't, and the equitable concerns seem to have come in in this case, although they should not come in, in terms of analyzing whether jurisdiction should be found in this case, and in fact this case is strictly controlled by 2251.

Unknown Speaker: I don't want to... am I interrupting your answer?

Mr. Griffey: No.

Unknown Speaker: There's one question that runs through my mind in these cases when we talk about the delay.

This case as I understand it started in 1988, early in 1988 the man was indicted, and the proceedings in the Texas direct review system ended sometime in 1993, and then all of a sudden we have this terrible emergency a matter of a few weeks after the execution date is set.

Is this period of time where it's mostly in the state court, typical in Texas?

You have these long delays between trial and... and then it suddenly becomes an emergency at the end of 4 or 5 years?

Mr. Griffey: That period of delay is not at all unusual.

Unknown Speaker: In Texas.

Mr. Griffey: It can vary anywhere from 2 years to 8 years.

Unknown Speaker: But then why is there such a sudden emergency after 4 or 5 years?

You've got to get everything done, you can't let them have 2 or 3 weeks to get a lawyer.

I don't understand the contrast between 5 years on the one hand and a matter of weeks on the other.

Mr. Griffey: Well, it was not just a matter of 2 or 3 weeks to get a lawyer.

In this case they had at least 4 months following the denial of certiorari review to get an attorney.

Unknown Speaker: Well, I must say that that's... it's hard to expect Federal judges or any judges to get excited about staying a Texas execution when Texas itself diddles around for 3 or 4 years before trying the individual and I think you should bear that in mind.

If you want us to get serious, you should get serious yourselves.

Mr. Griffey: Texas is well aware of that fact, and in fact in the 1993 legislative session tried to amend our habeas procedure to provide for the regular and routine appointment, to provide for filing deadlines that would not necessity setting execution dates to compel State litigation to go--

Unknown Speaker: Wasn't the real delay here much before that?

If I have the figures, the dates right, McFarland was convicted in November of '89, but his conviction wasn't affirmed on appeal until December of '92.

What accounts for that length of time just on... the direct appeal took so long... 3 years.

Mr. Griffey: --In this particular case, I can't speak to specifics, but I do know that it frequently takes a year to get the record on appeal compiled, that the direct appeal may raise 20, 25 claims, so that the briefing on each side goes way outside the normal statutorily prescribed limits for filing the briefs on each side.

The--

Unknown Speaker: It just seems extraordinary that you are complaining about the few months that lapsed here and said that that was no occasion for a stay, and yet in the State's own process it took over 3 years to get from the conviction to the affirmance on appeal.

Mr. Griffey: --It has been my experience in watching a number of capital cases go through that.

That period of time is not unusual on direct appeal, nor is that period of time at all unusual for a case to be pending before a Federal district court.

The issue here is how to make the petitioner proceed in an orderly fashion from one stage of litigation to another.

Sometimes these cases raise complex issues that require extended review.

The period of time in between should not be one that is simply used to sit there and say, I don't have counsel.

It should be used for the preparation of a petition, and Texas tried to provide for the regular, routine appointment of counsel and for the... a series of filing dates that did not require execution dates to be set, and that provision was defeated by the very people who are now lobbying, or the very people who are now representing McFarland in this Court, and by the lobbying of some of the groups who have appeared as amicus in this case.

Unknown Speaker: You mean, it was defeated... it was pending in the legislature?

Mr. Griffey: It got through the Texas House, and did not get passed in the Texas Senate.

It will be reintroduced.

Unknown Speaker: It may be that the defeat had nothing to do with giving the defendant adequate opportunity to get counsel.

It may be that there were other reasons for opposing the measure.

Mr. Griffey: There could have been.

It has been my experience that while the appointment of counsel is a desired feature by the defense bar, that an abuse doctrine is not.

Unknown Speaker: Do you know what the... what do the capital defendants' lawyers get paid in Texas for representing defendants in the State system?

Mr. Griffey: At trial?

Unknown Speaker: Yes.

Mr. Griffey: I'm afraid I do not know the answer to that question.

Unknown Speaker: They are paid by the State, though.

Mr. Griffey: Yes, they are.

Unknown Speaker: They are.

Mr. Griffey: As the Court recognized, the issue before the Court is properly one of jurisdiction, not of the equitable concerns here.

Under Conway, an action is not pending until it is commenced by the filing of the initial designated pleading.

While civil actions are commenced by the filing of a complaint, a Federal habeas corpus proceeding is commenced by the filing of an application or petition in which available grounds for relief are identified and the factual support for each ground is set forth.

Unknown Speaker: Let me ask another question about your... assuming we don't have any deadline or time problems, and a petitioner just wants to get a lawyer and he files a perfunctory petition that is dismissed as really saying nothing, and then later he gets a letter and he comes in for the second time, would it be your position that that second petition was an abuse of the writ?

Mr. Griffey: Yes.

Unknown Speaker: It would.

Mr. Griffey: The understanding that a habeas application is commenced by the filing of an application or petition raising constitutional bases for relief is consistent with the Court's conclusion in Barefoot v. Estelle that a stay can only be entered if there is a substantial showing of the denial of a Federal right upon which relief might be granted.

It is also consistent with the jurisdictional concerns expressed by the Court in disposing of petitions filed by next friends, and finally, it is consistent with the legislative history of the habeas corpus statutes.

In 1908, Congress attempted to eliminate the delay in the carrying out of State executions attributable to frivolous appeals by enacting the CPC requirement, and in 1934, Congress eliminated the provision for automatic stays.

The provisions of the Anti-Drug Abuse Act contained at 848(q) do not authorize the prepetition stays of execution.

848(q) does not expand the scope or meaning of the term, proceeding, as used in 2251, nor does 848(q) constitute an expressly authorized exception to the prohibition of the Anti-Injunction Act under the analysis of Mitchum v. Foster.

Both the provisions, as we... as I stated earlier--

Unknown Speaker: May I just understand that your essential position is that what must be done, and what cannot be avoided, is in the first instance the petitioner himself file an adequate petition, uncounseled?

Mr. Griffey: --That is correct.

Unknown Speaker: That's what has to happen.

He has to draw the petition.

He cannot have a lawyer, unless he can pay for one, draw his petition, so the well-pleaded complaint has to come from the pro se petitioner.

That's the nub of your argument... that to get your foot in the door, he has to do it on his own.

Mr. Griffey: The critical point of my argument is that he's not entitled to a stay while he finds counsel.

He must have a constitutional basis for relief.

Unknown Speaker: Yes, but that... but the constitutional basis would be coming in with an adequate complaint, and he can't get counsel for that, and he's not entitled to counsel, you say, until he has that well-pleaded complaint on his own.

I took it that that's what you were saying.

I just wanted you to confirm that that is indeed what your position is.

Mr. Griffey: I disagree only that I believe that he can file an adequate complaint without the assistance of counsel.

Unknown Speaker: Well, and you don't insist that he come in on his own.

He may well be able to find counsel.

He can say look, all you have to do is file a well-pleaded complaint for me.

I don't want you to try the whole habeas matter.

I don't even want you to do all the investigation.

All I have to do is make out a solid Federal claim, then I'll get free Federal counsel.

It would make it a lot easier to get a State-appointed counsel if you knew that all that person is committed to is getting the foot in the door, whereupon the Federal system will take over and you'll get another counsel.

Isn't that a plausible scenario?

Mr. Griffey: If I understand your question correctly, yes, and in fact in this case Tarrant County District Attorney's Office said, file a petition of any sort.

We will not oppose a stay or modification of execution date, and the circumstances that existed in Gosch did not prevent McFarland in the State courts from filing a perfunctory petition and from filing an amended position.

Unknown Speaker: So Congress can be relying on State-provided free legal services to get the foot in the door, and once the foot is in the door, the Federal funding will take over.

That seems to me a perfectly reasonable disposition.

Well, does the State finance these things?

Mr. Griffey: The State habeas actions?

Unknown Speaker: Yes.

Mr. Griffey: In some... they have the authority to.

They do not have the obligation to.

Unknown Speaker: And they didn't in this case.

Mr. Griffey: No.

Unknown Speaker: I take it there's no State agency or defense agency that maintains a list of lawyers who are willing to file well-pleaded complaints for free.

Mr. Griffey: There is no... there is no State agency that maintains that list.

There is a staff counsel for inmates that if they are requested to represent a death sentence inmate who is indigent will do so.

There is also the Texas Resource Center.

Unknown Speaker: Are there enough of them to represent all of these people to get their well-pleaded complaints in?

Mr. Griffey: I do not know the size of their staff.

Unknown Speaker: You don't know how many there are.

Mr. Griffey: No.

Unknown Speaker: In the Gosch case, it was the district judge who decided to rule on the petition, it wasn't the State that asked for it, was it?

Mr. Griffey: That is correct.

The district judge--

Unknown Speaker: --did it on his own.

Mr. Griffey: --Right.

Unknown Speaker: Was it the same district judge in this case?

Mr. Griffey: No.

No, and in fact in another case in Texas that immediately followed this one, there was a suggestion from the district judge that they file a perfunctory petition with a request to be... for leave to file an amended petition, and that was not followed.

If there are no further questions from the Court, I will--

Unknown Speaker: Thank you, Ms. Griffey.

Ms. Welch, you have 3 minutes remaining.

Rebuttal of Mandy Welch

Mr. Welch: Thank you, Your Honor.

I want to correct something that I said in response to a question that Justice Scalia asked.

We did not specifically request in our letter to... the State court did not request appointment of counsel.

We asked that we be allowed time to recruit volunteer counsel.

There was a pro se motion that was presented to the judge requesting a stay and time to obtain counsel, but I don't... that is not in the record, and I don't believe it specifically asked for appointment.

The appointment system in Texas is... really varies on a county-by-county basis.

Nowhere in Texas does the State provide funds for indigent defendants, either at the trial level or at the postconviction habeas level.

All of that is done by counties, and some judges take the position that they do not have the authority to provide counsel in habeas, and that was the position of the judge in this case.

Unknown Speaker: Therefore you didn't ask... yes.

Mr. Welch: Yes, Your Honor.

Unknown Speaker: Thank you for that clarification.

That's what I--

Mr. Welch: Oh, and I would also like to address the problem that was created by the absence of any rules or procedures in State court.

We were faced with the same dilemma in State court that we were faced with in Federal court.

The district attorney, just like the Attorney General's Office, did agree not to oppose a stay if Mr. McFarland filed a perfunctory petition, but the judge made it quite clear that he would not allow time for counsel to be recruited in order to amend that petition.

He made it quite clear that he would not appoint counsel to represent Mr. McFarland on that petition, and when it was explained to him that we could not, unless we had additional time, he made it quite clear that we would not be allowed to substitute counsel even if volunteer counsel was found.

So it is not quite so simple to say that they agreed not to oppose a stay, just as the Attorney General's Office agreed not to oppose a stay.

They were unable to agree... they were unable to assure us in any way that the judge would appoint counsel, and in fact the judge said he would not.

Chief Justice Rehnquist: Thank you, Ms. Welch.

Mr. Welch: Thank you.

Chief Justice Rehnquist: The case is submitted.