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Alabama death row inmate Cory Maples, who lost his chance to bring a critical appeal because of a mailroom snafu in a New York law firm, may be getting a second chance from the U.S. Supreme Court. In fast-paced arguments on Tuesday that delved into the obligations of lawyers representing criminal defendants, all of the justices, with the exceptions of Justice Antonin Scalia and a silent Justice Clarence Thomas, appeared concerned about the predicament in which Maples finds himself and skeptical of the state’s arguments that they should do nothing about it. Maples, sentenced to death for the 1995 murders of two men, was represented pro bono in his state post-conviction appeal by two associates at New York’s Sullivan & Cromwell. As required by Alabama rules at the time, the two lawyers associated themselves with a local attorney, John Butler, in order to be admitted to practice in the state. Although the rules required Butler to be jointly and severally responsible for the case, he claimed his only role was to secure the New York attorneys’ admission. The three attorneys filed a state post-conviction petition for Maples in which they raised ineffective assistance of trial counsel claims. After 18 months, the trial judge denied the petition, and then Maples’ problems began. The court clerk sent notices of the denial order to the two associates and Butler. The associates, however, had left the firm for other jobs and failed to inform Maples or the court that they no longer represented him. Neither they nor Marc De Leeuw, the partner who worked with the associates, filed a substitution of counsel form. The firm’s mailroom returned the denial notices to the court clerk marked “return to sender” and “left firm.” Butler did nothing with his notice, assuming the associates were handling the case. Maples actually learned of the denial and the missed appeal deadline when the prosecutor sent him a letter alerting him that the time for filing a federal habeas petition was close to expiring. He contacted his stepmother, who then contacted Sullivan & Cromwell. De Leeuw and Butler scrambled to ask the trial court to reissue its denial order so they could file an out-of-time appeal, but their motion was denied as was a request to the state criminal appeals court. Maples’ federal habeas petition raised ineffective assistance of counsel claims. The federal court denied the petition as procedurally defaulted, finding he could not show cause and prejudice for his default, and a divided panel of the U.S. Court of Appeals for the 11th Circuit affirmed. During arguments Tuesday in Maples v. Thomas, former Solicitor General Gregory Garre, hired by Sullivan & Cromwell to represent Maples, pressed two reasons why there was cause to excuse the default in this situation. “First, the state itself had a direct hand in the extraordinary events leading up to the default in this case; and second, the actions of Maples’ attorneys, which rise to the level of abandonment, are not attributable to Maples under agency law or other principles that this Court has invoked in determining when attorney conduct may be imputed to a client,” argued Garre. “For either or both of those reasons, the default at issue in this case is not fairly attributable to Cory Maples and the contrary decision of the Eleventh Circuit should be reversed.” The state’s “hand” was the clerk’s failure to act when the notices were returned in a capital case, he explained, coupled with the fact that Alabama has set up a system whereby it relies on out-of-state lawyers to represent indigent capital defendants. But Garre ran into a series of hostile questions from Scalia, who challenged him on the role of Butler, the local attorney. “You have to have a local attorney for the case, don’t you?” said Scalia. “And you want us to believe that the local attorney has no responsibility for the case at all? Is this really what the law requires? I think there is a serious ethical obligation when he gets the notice. He failed to check with the New York lawyers who were working with him. Why is the state responsible for that?” Garre answered that Butler had disclaimed any relationship to the case, apart from facilitating the associates’ admission. He then faced questions from the justices about how a court clerk is supposed to know that. Garre said it was well known in Alabama that out-of-state attorneys did all of the work in these cases. And, he added, the state’s attorney must not have viewed Butler as a player in the case because he faxed his letter about the appeal deadline having passed to Maples. Justices Ruth Bader Ginsburg, Samuel Alito Jr. and Elena Kagan questioned Garre on the “abandonment” claim, asking if Maples were truly abandoned if De Leeuw was working on his case. “What we know is what Mr. De Leeuw has said, which is that he was involved in the case at some point. It’s not clear what his involvement was,” answered Garre. Alabama Solicitor General John Neiman Jr. countered that Maples “is asking this Court to hold that due process required not just actual notice to his attorney of record, John Butler, but in fact something more than that.” He stressed that under the Court’s precedents, “at the end of the day actual notice to a party, particularly within the jurisdiction, is the finish line for due process purposes.” He also noted “an inconsistency” in Maples’ argument “that the other lawyers at Sullivan & Cromwell weren’t his attorneys because they were not counsel of record. But Butler was counsel of record, but he wasn’t one of his attorneys.” Alito asked Neiman whether the state had an obligation to “push”the Maples case. “Mr. Maples has lost his right to appeal through no fault of his own, through a series of very unusual and unfortunate circumstances,” said Alito. “Now, when his attorneys moved to file an out-of-time appeal, why wouldn’t you just consent to that? If he did not receive an effective assistance of counsel at trial, why not get a decision on the merits of that? Why push this technical argument?” Neiman said the Alabama Court of Criminal Appeals found there was not good cause for an extension of time in these circumstances “in which the person had counsel of record, and counsel of record hadn’t notified the Court of their changes of address,” and more importantly, Butler was local counsel of record. In response to a Ginsburg question, he said the state did oppose the extension of time and pressed the procedural default, relying on the Supreme Court’s decision in Coleman v. Thompson. Several justices suggested that the case might be remanded to the lower court. Garre said that would be agreeable, but Neiman called a remand “inappropriate.” Maples has drawn amicus support from a number of former Alabama appellate court justices and bar presidents as well as the state and national criminal defense associations. Twenty states, led by Texas, are supporting Alabama in the high court. Marcia Coyle can be contacted at [email protected].

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