William H. Rehnquist: We'll hear argument now in No. 87-1104, Walter Zant v. William Neal Moore. Ms. Boleyn, you may proceed whenever you're ready.
Susan V. Boleyn: Mr. Chief Justice, and may it please the Court: This is a second application for federal habeas corpus relief that raises both old and new grounds. On the new grounds, they allege that a change in the law permits them to present these new claims for the first time in a second or subsequent application. It's the Petitioner's position that the failure of the Respondent to include these so-called new claims in his first application was inexcusable neglect and, therefore, this application should have been dismissed as an abuse of the writ. There are three major points which the Petitioner would like to discuss today and these three points are as follows. First, when a district court is faced with reviewing a second or subsequent application for federal habeas corpus relief that raises new claims based on alleged changes in the law, the district court should not focus on whether or not the decision that's cited by the applicant is in fact new law. Instead, the proper focus of the district court's consideration should be whether at the time the first application was filed and it was pending in the district court that the claim was reasonably available to the applicant at that time. The second point the Petitioner would like to make is that reasonably available means was there a sufficient legal basis in existence at the time the first application was filed and during the time it was pending to enable the applicant to raise the claim. And finally, under our standard that we're proposing to the Court today, the burden would remain on the applicant to excuse his omission of the new claims from the earlier application and to show that it was not inexcusable neglect to fail to include these claims. If we take the reasonably available standard that we're propounding to the Court today and apply it in the practical context, this is what occurs. Of course, the applicant files a second or successive application for federal habeas corpus relief and the government, as is its burden, pleads abuse of the writ with clarity and particularity. And essentially implicit in our response to their second or successive application is our belief that there is no newly available facts and no newly available law which would allow the applicant to raise a claim at this time which he didn't have at a previous application time. Of course, once we plead abuse of the writ and we say that there's new... no new law, then of course the applicant has to respond to the pleading of abuse of the writ. And what generally happens is they simply say change in the law and they cite a case for it that was rendered subsequent to the time that the first application was disposed of. They hope by mouthing what are sometimes thought of as magic words of "change in the law", that they can thereby excuse their inexcusable neglect in failing to raise that claim at the first time. And, of course, they also hope that what will happen is that the district court will look to the government to determine whether or not the claim was reasonably available at that time. When the district court then is faced with our allegation of abuse of the writ and their allegation that there's new law, what does the district court have to do? Well, essentially the district court can't decide whether the decision is new law in a legal vacuum. Instead, what the district court has to do is look at the claim and decide whether or not at the time the first application was filed and was pending that the claim was reasonably available. So, they compare the date of the decision cited back to the date that the first application was filed.
Sandra Day O'Connor: Ms. Boleyn, may I inquire how your proposed standard differs from that in Reed against Ross for the novelty standard for procedural defaults?
Susan V. Boleyn: Your Honor, our reasonably available standard differs from the, the standards set forth in Reed v. Ross for the cause standard in several respects. First of all, our standard is not as high a standard as a Reed v. Ross standard because we don't have the additional element of prejudice. And second, of course, primarily when you're discussing a procedural default, you're looking at whether counsel failed to preserve the issue and why the issue was not preserved; whereas on our reasonably available standard, the focus that you have is why the claim could not have been presented. So, really in a procedural default context, a Reed v. Ross type situation, one of the things you're looking at is foreseeability; whereas in our test you have the benefit of hindsight and you can look back to the legal environment as it existed at the time the first application was filed. Then, of course, too, when you're looking at a procedural default context, the prior proceeding that you're examining is a proceeding in which you had the right to counsel and you had the right to effective assistance because it's trial or appeal. But in our standard, you're looking at a proceeding where you did not have the right to counsel and so, in effect, it just doesn't factor in.
Sandra Day O'Connor: How does your standard differ from that suggested by Judge Tjoflat below?
Susan V. Boleyn: Our standard is very similar to that of Judge Tjoflat. We just... he, he used the tools language of Reed v. Ross, and we simply said was it reasonably available, was there a sufficient legal basis for the claim. And it's similar for the tools language that Judge Tjoflat adopted. The only thing that Judge Tjoflat did was he referred to the Reed v. Ross language about whether other petitioners were raising the claim at the same time. And we've simply said in our standard that that might be germane, but it might not be outcome-determinative in determining whether the claim was reasonably available. So, it's very similar to what he's... what he's alleged.
Antonin Scalia: Could you... could you tell me how it could ever be held that the claim... that the claim was not reasonably available when there has been a change in the law? I mean, almost by definition somebody else thought of it. So, how could you possibly ever... I mean, why not just adopt a simpler rule that you simply can't do it at all? Period. Is there any difference?
Susan V. Boleyn: We think we have adopted a simpler rule because part of it depends on the way you look at new law. I mean, new law could be viewed as every decision that this Court decides or every decision that any court decides. So, the question can't focus on whether it's new law unless you relate it to some point in time. To say whether it's new law for retroactivity purposes or new law for prophylactic purposes, all different types of purposes is where it's new law. So, the only way you can do when you're in a habeas corpus setting is you have to look at the conduct of the applicant for the writ. And when you're looking at his conduct, you have to look at the point in time when he sought to avail himself of the federal habeas corpus remedy. So, the new law or the, the decision only has relevance in the context of the habeas corpus proceeding back to the time of the first application.
Antonin Scalia: But at least if he... if his trial where he didn't raise the point was simultaneous with the trial in which the point was raised that came up here that produced the decision which is allegedly new law, at least in all those cases you would have to say it was reasonably available, wouldn't you? So, you would only be talking about those cases that were earlier than the one at which the point was first raised.
Susan V. Boleyn: You would only be talking about those cases that were earlier than the one in which the point raised, but that would not necessarily be an excuse because you could have--
Speaker: I understand.
Susan V. Boleyn: --earlier decisions that foreshadowed the new or clear break or precedent-setting decision. We're not going to have to wait until this Court gives a decision to hold that it would be reasonable for an applicant to raise the claim. Of course, as this Court is aware, many of the 1960s and 1970 cases clearly outlined for persons dealing in federal habeas corpus the expansion of rights that was going to be available to criminal defendants and foreshadowed many of the decisions that came out in the 1970s and 1980s. So, you had the tools. You had these basic decisions, and applying them to the factual context in which you're dealing with is the job of the attorney. He has got to have some ability to determine whether there are some, some basic landmark cases out there that might be extended to cover the factual situation that's in that case. So--
Anthony M. Kennedy: Can you give me some specific examples of decisions of this Court that the Petitioner could rely on as new law under your standard?
Susan V. Boleyn: --Your Honor, that's a difficult question to ask unless you can pinpoint the time period that we're talking about I think, as I've already said. But let's suppose that you are a, a capital litigant in Georgia in the period between Gregg v. Georgia, 1976, and Green v. Georgia. And in Green v. Georgia, of course, they said that the hearsay prohibitions under Georgia law weren't applicable to the sentencing phase. It's possible that a petitioner in that time period between those two decisions would have no reasonably available basis to allege that the hearsay prohibitions that are... that are in the guilt phase were also applicable to the sentencing phase since those two phases under Georgia law are the same. So, it's arguable that that's an example of a case which was clearly new law, at least under Georgia law, to require those hearsay restrictions to be taken out of the sentencing proceeding. So, arguably he might have a, a claim based on that that would be excusable neglect for failing to raise it in the first application.
Anthony M. Kennedy: And no examples occur to you of our decisions in the 1980s?
Susan V. Boleyn: Your Honor, I've spent a lot of time thinking about that. Some of the major 1980s examples that I can think of would depend on the state of the law in other states of which I'm unfamiliar. For example, Caldwell v. Mississippi. The Caldwell... so-called Caldwell argument has been against the law in Georgia for 200 years. Apparently it wasn't against the law in Mississippi. So, perhaps some applicant, depending on the timing of their first and second applications, Caldwell v. Mississippi might be new law in their jurisdiction. So, the problem is if you... if you don't place it in the context of a particular jurisdiction or a particular time frame, it's difficult to answer whether some of the major decisions that we're all familiar with really would be an excuse in the abstract.
Antonin Scalia: Even in your Green example, somebody, somebody prior to Green had the... had the necessary tools.
Susan V. Boleyn: Yes, they did.
Antonin Scalia: Or else Green would not have been decided that way.
Susan V. Boleyn: Yes, they did.
Antonin Scalia: So, how can you even say that with respect to Green?
Susan V. Boleyn: Well, I think you'd have to look at the circumstances. First of all, you'd have to look at what would be reasonable in that time frame, what decisions they had that might have foreshadowed Green. And that's why I say it's possibly an excuse. It wouldn't necessarily be an excuse. And the only reason I use that is because I'm familiar with Georgia law, so that might possibly be an excuse for him. But even still, of course, you know, stare decisis and all of the decisions of the Court really rely on something else. The question is maybe under Georgia law or some other authority that I'm not familiar with, that claim could be made. But the fact that... that somebody was... was smart enough to raise a claim that ultimately got relief doesn't necessarily mean that it was unreasonable for them not to raise it previously. If we apply the reasonably available analysis to the new law claims in this application, this is what results. There's two new law claims. The first of these in our case is the Proffitt v. Wainwright claim. And essentially when we pled abuse of the writ, the Respondent in this case said I needed Proffitt to make this claim. Without Proffitt, this claim was unavailable to me at the time of the first application.
John Paul Stevens: May I just ask one, one preliminary question? You're basically asking us to overrule Sanders, are you?
Susan V. Boleyn: No, we're not, Your Honor. Our view of Sanders is that is to prohibit piecemeal litigation which Sanders defines as any litigation whose intent is to vex, harass or delay. And--
John Paul Stevens: Do you accept the interpretation of abuse of the writ terms in Sanders?
Susan V. Boleyn: --Your Honor, if you look at Sanders, plus Rule 9(b) and the advisory notes referring back to Sanders, they talk about several types of abuse of the writ that are available. Intentional--
John Paul Stevens: I'm not sure that's... I'm not sure that's answering my question.
Susan V. Boleyn: --May... if you'd restate, Your Honor, I'll try to be--
John Paul Stevens: Do you agree with what... do you agree with everything in the Sanders opinion, I'll put it that way, insofar as it discusses abuse of the writ and Rule 9(b)?
Susan V. Boleyn: --Insofar as it states that equitable principles govern habeas corpus, insofar as it states that any type of--
John Paul Stevens: Would you agree with everything in the opinion? If not, what do you disagree with?
Susan V. Boleyn: --Insofar as some courts have read Sanders to limit abuse of the writ solely to types of things like sandbagging or deliberate withholding, I would disagree with those interpretations of Sanders. My interpretation of Sanders is that it prohibits any types of abuse of the writ and it gives illustrative examples that we say are nonexhaustive of what type of proceedings would abuse the writ. But when they put that word "delay" in there, they're talking about capital litigation. They are talking about the fact that it's commonplace now for capital litigants to file a second round of federal habeas corpus proceedings whose only intent is to delay. And so that part of Sanders directly feeds in to this case and to our, our abuse of the writ standard. Again, if we try to apply the reasonably available standard to the two claims that we have here, the first one is Proffitt v. Wainwright. And as I've said, they said until the Fifth Circuit entered Proffitt v. Wainwright, we could not have raised the claim. Under our analysis, then of course in our pleading of abuse of the writ, we would tell them, as we did tell them, that Proffitt was based on... primarily on Gardner v. Florida, and that in Gardner v. Florida in 1977 this Court clearly foreshadowed the result that the Fifth Circuit reached in Proffitt. And, of course, Gardner was decided in 1977, and this application, the federal habeas corpus relief, the initial one, was filed in November of 1978. And then, of course, Gardner had prior law supporting it: this Court, Douglas v. Alabama, California v. Green, Chambers v. Mississippi. So, if you didn't want to use Gardner, you still had other similar decisions of this Court that you could have relied on.
Sandra Day O'Connor: Ms. Boleyn, did either the Eleventh Circuit or the... or the parties address the retroactivity of Gardner or Proffitt?
Susan V. Boleyn: No, we did not address the retroactivity question, solely on abuse. So, essentially they said we needed Proffitt to make this claim. Our response is you didn't need the... you didn't need Proffitt because you had Gardner v. Florida and the prior decisions in that. And therefore, since you didn't need it to raise the claim, the claim was reasonably available to you in 1978. Since it was reasonably available, your failure to present it was inexcusable neglect, and since inexcusable neglect is one of the forms of abuse of the writ now that abuses have become more sophisticated, then therefore you have abused the writ of habeas corpus and you are not entitled to review this issue on the merits. With reference to the other new law claim, Estelle v. Smith, again we apply the reasonably available test to Estelle v. Smith. They say until this Court's decision in Estelle v. Smith, they couldn't have raised the claim. We say, yes, you could. You could have raised In re Gault. You could have used Miranda v. Arizona, and you could have even used the district court's decision in Smith v. Estelle, which was decided one year before this first application was filed, and if not that, you could have used the Fifth Circuit's decision in Smith v. Estelle, which was entered while the application was pending in the district court. So, we essentially say you didn't need this Court's decision in Estelle v. Smith to raise the Estelle v. Smith claim. And since you didn't need it, the claim was reasonably available to you, and your failure to present it constituted inexcusable neglect, which should have been dismissed as abuse of the writ.
William H. Rehnquist: Ms. Boleyn, you say the point of focus when you're talking about abuse of the writ is what was available at the time of the first habeas application, not the trial. Is that correct?
Susan V. Boleyn: You take into... that's correct, Your Honor. You take into consideration whether there was any foreclosure of a right to object in the trial. So, that, that does work into the equation, but the primary point of focus is the time the application was filed and the period of time it was pending in the district court. You do have to look back to the procedural history to determine whether... what the existence of state law was because what is part of the legal environment that you're looking at is... involves the state statute and state law, as well as federal law and federal constitutional principles. The only claim we haven't addressed so far is... and I'll, I'll go off of the new law claims at this time... is we have one old claim we'd like to discuss, and that's the Gardner v. Florida claim. We're trying to take the easy road out in this and say that Sanders allows us to determine that no relitigation of the Gardner claim is necessary because this claim is conclusively without merit. So, we would not ask the Court to reach the ends of justice on this old claim in the context of this case.
Speaker: xxx Eleventh Circuit [inaudible] claim.
Susan V. Boleyn: The Eleventh Circuit treated it... Judge Tjoflat, the dissenter of course, treated it as having been--
Speaker: xxx.
Susan V. Boleyn: --They treated it as... they treated it as both in discussing it, but they treated it as an old claim.
Byron R. White: And so... and so that came down to a ends of justice issue.
Susan V. Boleyn: Yes. They remanded it for ends of justice inquiry and they specifically directed that the district court look at Smith v. Murray. They wanted them to look at the procedural default context of that. As we've said, we think the Gardner claim is conclusively without merit. The Gardner claim was raised both in the motion for declaratory judgment before the State Supreme Court. It was also raised and fully litigated at the state habeas corpus proceedings and found to be conclusively without merit. The bottom line is the presentence report was given to trial counsel and shown to Mr. Moore, and they tried to litigate that and prove otherwise and were unsuccessful. It was also raised, we might add, in the first application for federal habeas corpus relief, but only in the procedural history portion of that application. It was not raised in the claims. It wasn't until two years later that they raised the Gardner claim by means of amendment when they switched counsel and got new habeas counsel in there. Then they put the Gardner claim in their amendment. Of course, this amendment was disallowed by the district court, and that finding was upheld in the first appeal in the Eleventh Circuit. So, there has been no change in the law, and there has been no change in the facts because it's obviously based on Gardner, 1977, before the first application in 1978.
John Paul Stevens: May I just make sure of one... your point on the Gardner claim? Did he have a... have a federal habeas corpus hearing on the merits of the Gardner claim?
Susan V. Boleyn: No, he didn't because Mr. Bonner, his first habeas counsel, admitted to the court there were no new facts that needed a hearing.
John Paul Stevens: So--
Susan V. Boleyn: He did--
John Paul Stevens: --So, then he... is it correct that he has never had a hearing in federal court on the merits of his Gardner claim?
Susan V. Boleyn: --No, he has not, Your Honor. He had an oral argument before the magistrate which he simply argued the points and, and said that there were no new facts and he did not need an evidentiary hearing. That was the first counsel, Mr. Bonner.
John Paul Stevens: Why isn't he entitled to a hearing now? I'm not quite clear.
Susan V. Boleyn: Well, first of all, Your Honor, there's no--
John Paul Stevens: You say there's no merit... it's wrong on the merits.
Susan V. Boleyn: --Right.
John Paul Stevens: But it has been determined wrong on the merits by the state court.
Susan V. Boleyn: He's not entitled to relitigate a claim that was exhausted and fully litigated in the state courts prior to the first application and we submit deliberately left out. It was cited in the procedural history. So, we know that Mr. Bonner knew about it. He was the attorney who had litigated in the state habeas corpus court.
John Paul Stevens: Your point on the Gardner claim is not that it's without merit, but rather it was deliberately withheld.
Susan V. Boleyn: I think we both... we've said both, Your Honor.
John Paul Stevens: Well, it can't be both, can it? How, how could it... if it was never litigated, how can you say it has no merit?
Susan V. Boleyn: The basis of their Gardner claim has always been that they didn't ever get to see the report at all.
John Paul Stevens: Right. And... and no federal court has passed on the accuracy of that contention.
Susan V. Boleyn: Yes, they have, Your Honor. The district court said that this issue was fully... in disallowing the amendment, the district court looked back at the development of the claim in the state habeas corpus court, and he said he had no sound reason to doubt the judgment of the state habeas corpus court. And he listed the various findings the state courts had made and said he saw no reason and there was no new evidence on that point. And he found it to, to be unpersuasive that there was any merit to the contention that they did not see, see the presentence report. So, the main thing is they've never been able to factually establish that the report wasn't made available to him. Then they sort of shifted in midstream and said, well, we might have seen it in that period that the judge took the recess between the sentencing proceedings taking place and the actual pronouncement of sentence, but we only have 30 and 45 minutes. No, we didn't get an adequate opportunity to see it. So, they really switched their Gardner claim around a little bit which is why our position may appear to be inconsistent. The first thing we're saying it's without merit because they did get to see the report.
John Paul Stevens: When you say they switched it around, who... I'm still not... it's a little difficult to keep all the facts clearly in mind.
Susan V. Boleyn: Yes.
John Paul Stevens: They switched it around in federal court or in state--
Susan V. Boleyn: Yes, in the amendment. In the amendment they said they didn't have an adequate opportunity.
John Paul Stevens: --And has the... has the federal court ever decided they did have an adequate chance to look at it?
Susan V. Boleyn: The federal court only addressed the, the amendment and the merits of the Gardner claim in the order disallowing the amendment. That's the only time it was addressed by the district court. But it said... it basically found it to be without--
John Paul Stevens: It sounds... from the way you describe it, it sounds like the district court made a factual determination without taking evidence on the point.
Susan V. Boleyn: --It had the evidence of the state court proceedings, which there was no evidence that it was not full and fair. In fact, counsel had admitted that they had no new evidence and they didn't request a thorough evidentiary hearing. So, essentially they had a full and fair proceeding in state court, so they didn't need to have a, a further litigation. In the state court what happened is Mr. Pierce, who represented Mr. Moore at the time of his sentencing proceeding... he testified... and Mr. Moore was there and the probation officer, who submitted the report, submitted an affidavit. So, you had the three main parties who could have established the claim. They were there in state court subject to cross-examination, except for Mr. Rachels who did the probation report. And so, they could have presented anything they wanted to at the time. So, there was really no... nothing further to present in the federal evidentiary hearing except perhaps to recall them to hear the same testimony. And finally, I'll reserve the remaining time for rebuttal by simply saying that if the Court declines to accept our invitation to adopt the reasonably available test, we ask the Court please to give the district courts a practical, workable test to evaluate claims of new law. And in any test that the court adopts to make the test objective, to not make it relevant to foreseeability and to make certain that the burden remains on the applicant to demonstrate that his omission of the claim was not the result of inexcusable neglect.
Anthony M. Kennedy: Should there be a difference in a pro se petitioner and one with counsel?
Susan V. Boleyn: Yes, Your Honor. You factor that into the process. Instead of using what a reasonable attorney would have raised, you use what a reasonable person standing in the shoes of that particular petitioner could have raised. So, you do... you do incorporate a lower standard in there if it's a pro se petitioner. I'll reserve the remainder of my time.
William H. Rehnquist: Thank you, Ms. Boleyn. Mr. Boger, we'll hear from you now.
John Charles Boger: Mr. Chief Justice, and may it please the Court: There are two central questions on this appeal. The first is whether the federal courts have the authority to modify standards that were established by Congress for the evaluation of new constitutional claims that are presented for the first time in a second habeas corpus petition. This question has a subpart: may the federal court substitute a standard that is stricter, less equitable and harsher to habeas defendants? The second central question in this case involves the decision of the district court to dismiss Mr. Moore's constitutional challenge to the state's use of a presentence report at his sentencing hearing. The district court dismissed the challenge... and I'll answer your question now, Justice Stevens... without ever addressing its merits, either on the first application or the second one, finding it to be an abuse of the writ. The question here presented with respect to that Gardner claim is whether the district court should reconsider its dismissal in the ends of justice when the presentence report in question was so marred by false and misleading information that it provoked the district court to find... and I quote... "that sufficient likelihood exists that a wrongful sentence was imposed on Mr. Moore based on inadequate information. " If I may, I'll begin with the first of these questions. Our principal submission is that the standards that govern successive habeas corpus petitions have been set by Congress. While fair-minded persons undoubtedly disagree and disagree sharply on the wisest treatment of such petitions, Congress itself during a 40-year dialogue with the Judicial Conference, with attorneys general, with other interested parties, none of them shy, has repeatedly considered the diverse policy interests and has struck for itself a clear balance that's reflected in 2244(b) and Rule 9(b), which embody its own legislative judgment about how the competing interests should be reconciled. If federal courts are bound by the congressional choices reflected in 2244 and Rule 9, the judgment of the court of appeals, though not its precise holding, should be affirmed.
William H. Rehnquist: Well, what congressional choice, Mr. Boger, do you think was involved in the language involving the abuse of the writ in Rule 9?
John Charles Boger: Well, the legislative history, Your Honor, I believe reflects a choice--
William H. Rehnquist: How... how does the statute itself read?
John Charles Boger: --The statute itself, Your Honor, says... asks whether the defendant has deliberately withheld or otherwise abused the writ. The legislative history, though, I'm sure is well-known to this Court. This Court, through the Rules Enabling Act, promulgated rules for adoption by... approval by Congress, including a Rule 9(b), that had different language from what finally appears. The language was "not excusable". Congress held up the enactment or the approval of that set of rules. It did so holding hearings the summer after they were proposed. The hearings focused on four rules, one of them Rule 9(b). There was concern expressed during those hearings as to whether this proposed language of not excusable might change the standards that had formerly been followed, the standards reflected in Sanders. There's colloquy in the hearing that we cite to the Court in our brief between Father Drinan and... and, for example, who was on the House Judiciary Committee and someone from the Judicial Conference saying--
William H. Rehnquist: A colloquy is... is legislative history?
John Charles Boger: --No, Your Honor, it's not. It certainly helps to guide the Court's judgment as it looks through what happened. But the question back and forth, because it ultimately winds its way into a report, was are we doing anything more here with this new proposed language than incorporating Sanders v. United States? And the answer is no. That's what's being done with this language.
William H. Rehnquist: Well, do you think Sanders froze the abuse of the writ doctrine for all time?
John Charles Boger: As a judicial holding perhaps it did not. When it has been ratified by Congress, first in 2244(b) and then in Rule 9(b), yes. I think--
William H. Rehnquist: But if... if you ratify a judicial holding that left things fluid, why doesn't the ratification also leave them fluid?
John Charles Boger: --I don't believe that it did leave things fluid on this point, Your Honor. The rule in Sanders reflected it... the judgment that what was of concern were parties who had deliberately withheld new claims or who had engaged in conduct that was inexcusably neglectful. The court pointed to the kind of conduct it meant, and the conduct reflected, in essence, bad faith behavior by the defendant or his attorney. That's the essence of the equitable underpinnings of both deliberate withholding and inexcusable neglect. When the Congress in 1966 then turned to 2244(b), it reflects in the legislative report the kind of behavior it's worried about are parties who bring identical petitions one after another, or who withhold claims, as it put it, obviously well-known to them. That language, which is in the legislative report, was drawn from the Judicial Conference report to Congress. That was what Judge Orey Phillips said had concerned the Judicial conduct... Conference: petitioners who withheld claims obviously well-known to them. That's a league... two leagues... away from the kind of standard that Ms. Boleyn and the State of Georgia are proposing here. And what Congress did in, in 1966 it further ratified in 1976 with Rule 9(b). It said in its legislative report that modified the proposed Rule 9(b) we are afraid that this new not excusable language might give federal judges too great a discretion to dismiss claims. And then it cited Sanders v. United States in passing, once again reflecting congressional judgment that Sanders and the standards reflected there were those than Congress had chosen. I think the legislative history, particularly as it involves two separate actions--
Antonin Scalia: Excuse me. What if... what if I didn't agree with that... what legislative report was that?
John Charles Boger: --Well, we have... we have two reports. We have I think a Senate report in 1966.
Antonin Scalia: If I were a member of the Senate, could I have voted against that report?
John Charles Boger: You could have, Your Honor. There are no dissenting voices I think on that report.
Antonin Scalia: Can a member of the Senate vote against a report? I didn't know that a report went up for a vote.
John Charles Boger: I'm sorry. I think they can... I'm not clear on that, but I thought there could be dissenting opinions by... by a member of a committee.
Antonin Scalia: A member of the committee, but certainly the rest of the Senate didn't vote on the report, did they?
John Charles Boger: No. That's correct.
Antonin Scalia: You're hanging an awful lot on, on, on the report from the committee, and you're speaking as though Congress said this.
John Charles Boger: Well, let me... let add, Your Honor, it's not as if Congress was unaware of other voices. There had been legislation virtually every session of Congress from 1953 through 1988 proposing habeas corpus amendments. The voices of the attorney generals and others have been quite firm in those legislative debates. There have been floor debates as well. Indeed, in 1966 there was a proposal to enact a negligence standard. And on the floor, the Congressional Record reflects, that... that proposal was rejected. So, of course, congressional disapproval of a bill is not decisive, but seen in the context of the approval of standards that reflect and are said to reflect Sanders v. United States, I think it's, it's awfully strong legislative history, Your Honor.
Antonin Scalia: It... granting, granting all that you say, why does it... and maybe this is the same as the Chief Justice's question... why does it show anything more than that Congress was not willing to change the rule? You, you, you have to establish something further than that, namely, that Congress did not want us to be able to change the rule.
John Charles Boger: Well, my understanding of the way the... both the substantive law works and the Rules Enabling Act works is that this Court may propose rules to Congress which Congress then accepts or rejects. That's what happened. That dialogue took place with Rule 9(b). A proposed rule which contained language which Congress feared might give too great a discretion to dismiss successive petitions was rejected. That seems to me is the congressional response saying, no, we don't want a rule that may go that far. That's precisely what the report said in explaining the change in Rule 9(b) back to the language "or otherwise abuse of the writ. " So, I don't think the Court has power, if, if Congress has acted in a statutory area like habeas corpus, to disregard that rule, that standard that Congress has set. One can contrast this with the procedural default area. Where Congress is silent, where Congress has not spoken a jurisprudence can develop. And certainly this Court has developed such a jurisprudence in cases from Davis and Francis on through Sykes and Engle v. Isaacs and so forth. That's not the history of successive petition law. Successive petition law by contrast, by marked contrast, has had two congressional interventions in this period, and both of them reflect strong adherence to the Sanders v. United States standard. Let me, though, move to the new law claim that is among those that our client tried to present in his first application. He sought to raise a claim under Estelle v. Smith, a 1981 decision of this Court. Ms. Boleyn wants to suggest that Estelle v. Smith was foreordained, was clear to any reasonable counsel. But it's not at all clear. It certainly wasn't in 1978 when Mr. Moore filed his first federal application, that the Fifth Amendment rights survived the guilt determination at a trial. I remember being here in the Court for oral argument in 1980 when Estelle v. Smith was argued. I remember the Texas attorney general saying there simply is no right of self-incrimination left once guilt has been adjudicated. That was conventional wisdom in 1980. Indeed, in Estelle v. Smith itself, three Justices of this Court declined to reach the Fifth Amendment ground, the self-incrimination ground. And one, Chief Justice Rehnquist, says I'm not at all persuaded that there is a Fifth Amendment right that survives the guilt determination. There's contemporary evidence that, that demonstrates exactly how novel that rule was at the time. Justice Kennedy may remember a case of Bauman v. United States out of the Ninth Circuit, which was a 1982 decision that came up less than a year after Estelle v. Smith. An Estelle claim was raised in Bauman, but the Ninth Circuit said we do not blame the district court for giving this claim short shrift. It arose only a month before Estelle v. Smith was decided, and until that time, until Estelle was pronounced by this Court, we know of no Supreme Court opinion or circuit court opinion that ever suggested that the Fifth and Sixth Amendment rights addressed in Estelle v. Smith extend past the guilt determination phase and into the sentencing phase of trial. That was a Ninth Circuit contemporaneous, if you would, witness to the novelty of Estelle v. Smith. The Fifth Circuit itself subsequently held, as we cited in our brief, in Gray v. Lucas that reasonable counsel in 1979, a year after Mr. Moore had filed his petition, could not have been expected to foresee a change like that in Estelle v. Smith. There's an additional point on Estelle, and that is that our client, Mr. Moore, is not in the shoes of Ernest Benjamin Smith himself. It was not a psychiatric interview that Mr. Moore has challenged. Instead, he has extended Estelle v. Smith to the probation officer context. If Estelle itself was a surprise, was novel, we submit that the extension of Estelle to the probation officer's situation was far from clear to counsel, even reasonable counsel, other than Moore's in 1978. My understanding, indeed, is this Court granted certiorari last term in Cox v. Vermont to ask and answer the question whether Estelle applies in non-capital cases to probation officer reports. The matter is still unresolved in 1978... or 1988. Once again, Bauman held, the Ninth Circuit case, that in the probation officer setting, Estelle v. Smith didn't apply. Bauman also pointed out that it was a non-capital case and made some capital/non-capital distinctions which I think are quite important. But what I'm trying to do is to suggest that Estelle was far from clear in 1978 or even '80 or '81 or '82. There are other cases that I could cite that express the sense of the novelty of that doctrine, but let me move on for a moment to Proffitt v. Wainwright, a second new law claim. When this case was decided by Justice Crabbage... or Judge Crabbage in the Eleventh Circuit in 1982, four years after Mr. Moore had come into federal habeas for the first time, she wrote whether the right to cross-examine adverse witnesses extends to capital sentencing proceedings has not been specifically addressed by the Supreme Court and is an issue of first impression in this circuit. Our research suggested maybe at that time, 1982, an issue of first impression everywhere. The State, of course, has cited Gardner v. Florida, and said Gardner clearly presaged Proffitt v. Wainwright. We respectfully disagree. Gardner merely held that presentence reports could be made available to defense counsel for their rebuttal. It said nothing about whether the longstanding, widespread practice of submission of written documents at sentencing was to all of a sudden be overturned, and any defense counsel who wanted to cross-examine anyone who had filed a document as part of that report could come into court and be confronted and cross-examined. I'm still not sure whether Proffitt has been extended very far in, in the non-capital context to this date. We don't have very much information that I've been able to amass on that. So, in other words--
William H. Rehnquist: Proffitt is a decision of the Eleventh Circuit.
John Charles Boger: --That's correct. It's not yet a decision this Court has passed on. My, my point, once again, is that these claims in retrospect may seem obvious once all of the woof and the warp has been put together. They're far from obvious at the time. It's as if one were to say of a chemist that the atomic table was always present. So, therefore, it's obvious that someone should have come up with the new formula that has been devised. Let me move quickly, though, to the Gardner v. Florida claim because I think--
Sandra Day O'Connor: On Gardner, Mr. Boger, didn't the state court determine that the attorney had seen the report, the presentence report?
John Charles Boger: --The, the state court does make a holding that the claim is without merit. It does so after it recites a portion of the sentencing transcript where the report is put into evidence and an affidavit from the probation officer who says that he gave the report to defendant... the defendant's counsel and saw defendant's counsel discuss the confession portion.
Sandra Day O'Connor: I thought it could be fairly read as finding that the attorney had seen the report. Why didn't Respondent raise the Gardner claim in the first federal habeas petition?
John Charles Boger: We don't know why Mr.... Mr. Bonner did not. Of course, the Respondent did through substitute counsel the day after she entered the case. And I want to clarify the question a little further that Justice Stevens asked. Mr. Bonner did not raise the Gardner claim. He was the initial counsel. But he filed the petition and very shortly thereafter moved to withdraw from the case citing to the federal judge that he was overworked, that he thought that Mr. Moore's constitutional interest would suffer prejudice if he continued in the case. He then went to an evidentiary hearing so... or a status conference, so-called, during which the magistrate asked him if he wanted to put on evidence on any of the claims that were in the case, and he said no. Gardner, of course, was not in the case, so he never said we don't need any more evidence taken on the Gardner point. When subsequently Mr. Bonner left the case and new counsel came in, still seven months before the district court decided it, new counsel immediately moved to amend to add the Gardner claim, which had been exhausted. She asked for an evidentiary hearing on the claim. And let me explain, Justice O'Connor, what that evidentiary hearing was intended to do. Although it may have been true that the 74-page report in toto was given to Mr. Pierce, the trial counsel, during the proceeding, there is no finding on whether he realized that within that report there was a five-page narrative by Officer Rachels that contained a good deal of the most damaging evidence that was submitted against the defendant. There is certainly no finding on whether he realized that was in the larger document. Indeed, he both signed affidavits and swore in state habeas corpus proceedings that he never saw it. Moreover, there's certainly no finding on whether the opportunity afforded was reasonable. Under federal standards, Rule 32 of the Federal Rules of Criminal Procedure, to hand counsel a presentence report at the very outset of the sentencing hearing would likely not be deemed reasonable. And certainly our argument is under Gardner this was unreasonable notice. Whatever kind of notice it was, it wasn't sufficient notice for Mr. Pierce to have realized that his client's whole case was being jeopardized by this report because the report included, among other things, the suggestion that Mr. Moore had 10 prior crimes when in fact he had four juvenile adjudications. The report suggested that the crime was a great deal more deliberate and premeditated. For example, it's the only document... the only evidence before the sentencing judge that Mr. Moore may have fired first. The sentencing report... the presentence report suggests Mr. Moore began firing four or five shots, and the victim fired in response. Every other document and every other piece of testimony in this case is that Mr. Moore entered the bedroom window, came into the living room. The bedroom door opened. The victim came out of the bedroom door in the dark, hit Mr. Moore on the leg with a shotgun barrel, fired the shotgun, and then Mr. Moore, who was drunk, responded by firing four or five shots from his pistol. The degree of deliberation, on the one hand, cold-bloodedly shooting this man four or five times, on the other hand, responding to his own initial shot with the shotgun is a very serious one in terms of judging the heinousness of this crime. And it was the presentence report that contained that one variant account, an account that the judge apparently credited because his trial judge's report, which judges submit in Georgia at the State Supreme Court, reflected that view of the crime. There are other serious errors and omissions in that presentence report as well. Let me... let me add that the district judge who is the closest to this case and saw the facts in the greatest degree of complexity was the person who suggested that, that if Mr. Pierce had failed to see this report, an issue which he didn't pass on, as Justice Stevens points out, since he never reached the merits of the claim, he thinks that a wrongful sentence may have been imposed based on inadequate information.
William H. Rehnquist: Well, why did he not reach the claim?
John Charles Boger: Initially, Your Honor, he denied the motion to amend to add the Gardner claim in the context of granting full sentencing relief on another issue. In other words, let me... let me explain the status of this case. Ms. Hicks comes in the case in the fall of 1980. She immediately raises the Gardner claim among several others.
William H. Rehnquist: When you say she immediately raises them, she files a motion to amend the petition?
John Charles Boger: She filed a motion to amend saying I want to amend to add in the Gardner claim. At this point it is unclear even who the judge is because Judge Lawrence who originally had the case had died and there had been about a year in which there had been no activity. So, so, she filed a motion for clarification of who the judge was. That was clarified. She filed a motion for an evidentiary hearing. She wrote a letter to the court saying there's... I want to sort of begin to, to reassemble this case. I want to explain what issues we believe are before the court, ready for a hearing, what issues we've move to add and seek a hearing on, and what issues we have to go back and exhaust further in the state courts. So, she filed a series of documents which reflect that attempt to reorganize the case. What, what followed is that the district judge in April of the following year without notice denied the motion to amend, denied her motion for a hearing--
William H. Rehnquist: You say without notice. Are you suggesting there's some impropriety--
John Charles Boger: --Oh, none at all. None at all.
William H. Rehnquist: --Then why do you mention the fact it was without notice?
John Charles Boger: I simply meant that Ms. Hicks, and by this time Mr. Givelber, didn't know until they had received full sentencing relief what the dispositions were going to be on the Gardner or other motions. But the relief they received... and this is important to understand as well... was not just a resentencing hearing. The district judge concluded on a ground subsequently overturned that Mr. Moore could not be resentenced to death because his death sentence was disproportionately excessive. Consequently, there was no point to go back, as Ms. Boleyn suggested, to start adding Estelle claims or Proffitt claims or Gardner claims. They would all have been moot applications. The client at that point had a... had a ruling from a district court that full sentencing relief should be given. And, of course, that was then what was litigated up to the court of appeals.
William H. Rehnquist: That, that was reversed by the court of appeals?
John Charles Boger: That's right. The court of appeals said that the analysis conducted by the district court was improper. The court of appeals panel, I might add, granted relief on yet another ground. Mr. Moore has had relief from the district court, from the circuit panel and now from the circuit en banc. The court of appeals panel said a non-statutory aggravating circumstance played a major role in the sentencing judge... judge's decision, and that's unconstitutional. It unfortunately gave out its ruling on June the 23rd, the same day in which this Court decided Zant v. Stephens in 1983 and said a non-statutory aggravating circumstance doesn't invalidate the death sentence. So, once again Mr. Moore, who had obtained relief on another ground, found himself without relief. He pursued those matters to, to the Supreme Court, lost on certiorari, and at that point quickly came in and filed the new law claims under Estelle and Proffitt and sought a first adjudication on the merits of the Gardner claim. The district judge denied relief on the Gardner claim, as you know, finding that it was an abuse. It's a... it's a difficult finding because it's not a second adjudication on the merits. But he says sufficient opportunity had earlier been afforded that he was not going to award relief or even an opportunity to be heard on the merits at this time. He didn't consider the ends of justice question. The court of appeals reluctantly or with some hesitation said we will not find it an abuse of your discretion, district court, to have dismissed this petition as abusive, but we do think the interests of justice call for you to give further consideration to whether you ought to reach the merits even if there's an abuse. Our submission to the Court on the ends of justice point is that no matter what standards the Court majority ultimately holds meet the ends of justice test, Mr. Moore will be one of the people who falls within the core of that test. In Kuhlmann v. Wilson, four members of the Court, as you remember, suggested that ends of justice might be best defined in terms of actual factual innocence. And then in a related context in Smith v. Murray, a majority of the Court suggested that in the capital sentencing phase, the receipt of false or misleading information was sufficient to meet that related test for procedural default. Well, what we have in this case is precisely that. The receipt of false and misleading information by the sentencing judge upon which he relied, with the district court finding that it may well have made a life or death difference, that is within the core of the equity jurisprudence that has long marked habeas corpus. And for that reason, we've submitted that the court of appeals was certainly right to remand this case in the interest of justice. If there are no further questions, thank you.
William H. Rehnquist: Thank you, Mr. Boger. Ms. Boleyn, you have eight minutes remaining.
Susan V. Boleyn: Let me clarify that under the standard that we've proposed, which we think is clearly authorized by both Sanders and Rule 9(b), we're not asking counsel representing a habeas corpus petitioner to be able to foresee all the types of matters that Mr. Boger has discussed before the Court this morning. We're asking them to look around them, see what legal precedents they have available and whether they can mount a claim applying those precedents to the facts of their case. That's what lawyers do, and that's all that we're asking them to do. Of course, it's interesting to me, if I were--
Byron R. White: xxx court of appeals ask that question? What did they ask?
Susan V. Boleyn: --Excuse me, Your Honor?
Byron R. White: What did the... what did the court of appeals... what was their test?
Susan V. Boleyn: The court of appeals test, Your Honor, was that reasonably competent habeas counsel could not have foreseen the cases that ultimately came out.
Byron R. White: Is your... is your test different from that?
Susan V. Boleyn: Yes, Your Honor, very different.
Byron R. White: What is it? It has to be... you have to be extremely reasonable or what?
Susan V. Boleyn: You have to be reasonably competent habeas counsel, but you don't have to have this clairvoyance that is implied at least by... to some extent--
Byron R. White: Well, I, I just don't understand how you differ... how your test differs from the court of appeals.
Susan V. Boleyn: --Let me see if I can clarify that.
Byron R. White: Reasonably competent counsel was the court of appeals test?
Susan V. Boleyn: But they said reasonably competent counsel could not have foreseen the confluence of all these decisions. And our focus is not what you could have foreseen in the future, but did you look around and was something reasonably available then. So, it's a difference in focus. You still got reasonable counsel, but what is reasonable, when you're looking at procedural default and which we said is... shouldn't be applied over in this context, isn't the same thing that's reasonable when you're talking about why didn't counsel raise the claim. And, of course, it's very interesting that... and my understanding is that Mr. Boger along with Mr. Givelber came into this particular case in the district court right before decision, and Mr. Boger had been one of the counsel listed on behalf of Mr. Smith and Smith v. Estelle in the Fifth Circuit.
Byron R. White: Well, do you think Judge Tjoflat really differed with the standard the majority applied, or was he just differ... differing with the application of the standard?
Susan V. Boleyn: He differed with the standard, Your Honor, because he wasn't going to say the question was whether a reasonably competent habeas attorney could have foreseen. What he was talking about were there the ingredients... he called them ingredients instead of tools I think... were the ingredients there to raise the claim. So, it's a difference in focus, and we're, of course, going with Judge Tjoflat.
William H. Rehnquist: But is there... is the difference only in the,... the time on which you focus?
Susan V. Boleyn: No.
William H. Rehnquist: Or is it something more? It's really just on the time, isn't it?
Susan V. Boleyn: It's not only just the time that you're focusing on; it's a matter of perspective. In one you're talking about why was it not preserved. In another case, you're talking about why was it not presented. And if there's, there's something that you can cite for that principle even if it's not directly on point, then it's available because you're always... the problem is you're always going to have new law. So, if something stays in the district court long enough or in the Eleventh Circuit or another court of appeals long enough, there are going to be new decisions that you can cite for the same proposition. So, the question is was there anything that you could use to cite the proposition in that case? And so, it's more than just the point in time... the focus... although that's the most important--
Byron R. White: So, you say you shouldn't ask whether, whether a later decision was foreseeable, but you ask whether or not the claim should have been made?
Susan V. Boleyn: --And were there decisions then that they could use, not could they foresee the one that ultimately came, but were there decisions around them that they could use to mount the claim based on their factual situation? So, it's other than foreseeability. The other thing that I'd like to point out is that I don't believe that the Sanders court could in any way envision the types of abuses of the writ that are taking place today. I don't believe that they could envision that piecemeal litigation would just be out... astounding in its number and in the sophisticated types of abuses of the writ that there are. I think they viewed abuse of the writ as a very simple form more like deliberate withholding or deliberate bypass, but now we have new claims and old claims and withheld claims and bypass claims and claims based on new law and claims based on new facts. And when you have more sophisticated types of abuses, it cries out for the interpretation of the general standard in 9(b) by this Court. It's interesting to note, if we want to talk about the committee notes, that the committee's notes to Rule 9(b) say we are leaving it to the courts to interpret this standard on a case-by-case basis in the exercise of their judicial discretion. So, Rule 9(b) itself has left it to this Court and other courts to interpret the standard because as Sanders simply says, we're not going to permit abuse and abuse is conduct that is abusive. So, the question is what is abusive conduct? And that's why they try to get around their own abuse by talking about new law claims. That's all I have if there's no further questions.
William H. Rehnquist: Thank you, Ms. Boleyn. The case is submitted.